UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

 

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

 

For the fiscal year ended December 31, 2017

 

Commission File No. 333-177532

 

KAYA HOLDINGS, INC.  

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   90-0898007
(State of other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

 

888 S. Andrews Avenue

Suite 302

Ft. Lauderdale, Florida 33316

(Address of principal executive offices)

 

(954)-892-6911

(Registrant’s telephone number, including area code)

 

Securities registered under Section 12(b) of the Exchange Act: None

 

Securities registered under Section 12(g) of the Exchange Act: None

 

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

 

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

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). [X] Yes [ ] No

 
 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]

 

 

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

 

[ ] Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ] Smaller reporting company

[X] Emerging growth company

  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). [ ] Yes [X] No

 

The aggregate market value of the voting stock held by non-affiliates of the Registrant was approximately $16,305,935 as of June 30, 2017, based on the closing price on such date of $0.148 of the Company’s common stock on the OTCQB tier of the over-the-counter market operated by OTC Markets Group,

 

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date. There were 139,409,719 shares of common stock outstanding as of April 16, 2018.

 

DOCUMENTS INCORPORATED BY REFERENCE: No documents are incorporated by reference into this Annual Report on Form 10-K except those Exhibits so incorporated as set forth in the list of Exhibits set forth in Item 15 of this Annual Report on Form 10-K.

 
 

 

KAYA HOLDINGS, INC.

ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2017

TABLE OF CONTENTS  

    Page
Part I    
Item 1. Business.
Item 1A. Risk Factors. 30
Item 1 B. Unresolved Staff Comments. 36
Item 2. Properties. 36
Item 3. Legal Proceedings. 37
Item 4. Mine Safety Disclosures. 37
     
Part II    
Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters. 37
Item 6. Selected Financial Data. 40
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operation. 40
Item 7A. Quantitative and Qualitative Disclosures about Market Risk. 46
Item 8. Financial Statements and Supplementary Data. 46
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. 46
Item 9A. Controls and Procedures. 48
Item 9B. Other Information. 48
     
Part III  
Item 10. Directors, Executive Officers and Corporate Governance. 48
Item 11. Executive Compensation. 49
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters. 51
Item 13. Certain Relationships and Related Transactions, and Director Independence. 52
Item 14. Principal Accountant Fees and Services. 52
     
Part IV    
Item 15. Exhibits, Financial Statement Schedules.  54
     
Signatures    56

 

 
 

 

As used in this Annual Report on Form 10-K (the “ Annual Report ”), the terms “ KAYS ,” “ the Company ,” “ we ,” “ us ” and “ our ” refer to Kaya Holdings, Inc. and its owned and controlled subsidiaries, unless the context indicates otherwise.

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

Information contained in this Annual Report contains “ forward-looking statements ” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “ Securities Act ”) and Section 21E of the Securities Exchange Act of 1934, as amended (the ‘ Exchange Act ”). These forward-looking statements are contained principally in the sections titled “Item 1. Business,” “Item 1A. Risk Factors,” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations ” and are generally identifiable by use of the words “ may ,” “ will ,” “ should ,” “ expect ,” “ anticipate ,” “ estimate ,” “ believe ,” “ intend ” or “ project ” or the negative of these words or other variations on these words or comparable terminology.

 

The forward-looking statements herein represent our expectations, beliefs, plans, intentions or strategies concerning future events. Our forward-looking statements are based on assumptions that may be incorrect, and there can be no assurance that any projections or other expectations included in any forward-looking statements will come to pass. Moreover, our forward-looking statements are subject to various known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by any forward-looking statements.

 

Except as required by applicable laws, we undertake no obligation to update publicly any forward-looking statements for any reason, even if new information becomes available or other events occur in the future.

 

PART I

 

Item 1. Business.

 

Background

 

Kaya Holdings, Inc., was incorporated in Delaware in 1993 under the name Gourmet Market, Inc. and has engaged in a number of businesses. Its name was changed on May 11, 2007 to Netspace International Holdings, Inc. (“ Netspace ”). Netspace acquired 100% of the capital stock of Alternative Fuels Americas, Inc., a Florida corporation in January 2010 in a stock for stock transaction and issued 100,000 shares of Series C convertible preferred stock to existing shareholders of the Florida corporation. The Company’s name was changed in October 2010 from Netspace International Holdings, Inc. to Alternative Fuels Americas, Inc.

 

From 2010 through 2014 the Company was engaged in seeking to develop a biofuels business. In January 2015, the Company determined that it was in the best interests of its stockholders to discontinue its biofuel development activities, and to instead leverage its agricultural and business development experience and focus all its resources on the development of legal medical and recreational marijuana opportunities in the United States and in select international markets.

 

Legal Medical and Recreational Marijuana Operations

 

In January 2014, KAYS incorporated a subsidiary, Marijuana Holdings Americas, Inc. a Florida corporation (“ MJAI ”) to focus on opportunities in the legal recreational and medical marijuana in the United States. MJAI has concentrated its efforts in Oregon, where through controlled Oregon limited liability companies, it initially secured licenses to operate a medical marijuana dispensary (an “ MMD ”) and since the advent of legalization of recreational cannabis use in Oregon, has secured licenses to operate a total of four retail outlets for the sale of recreational and medical cannabis, as well as each hold a license for home delivery of cannabis products. Additionally, MJAI has operated medical Marijuana Grows in Oregon, and KAYS has purchased 26 acres which it has targeted for development of the Kaya Farms™ Medical and Recreational Marijuana Grow and Manufacturing Complex. The Company has developed the Kaya Shack™ brand for its retail operations.

  1  

 

 

In March 2014, we applied for and were awarded our first license to operate an MMD and on July 3, 2014 opened our first Kaya Shack™ Medical Marijuana Dispensary in Portland, Oregon, thereby becoming the first publicly traded U.S. company to own and operate an MMD. Initial customer acceptance and media coverage was very positive, including many references to KAYS as the “Starbucks of Medical Marijuana” by television news stations, news print publications and online news sources. In March 2015, the Company changed its name to Kaya Holdings, Inc. to better reflect its new plan of operations.

 

In April 2015, KAYS commenced its own medical marijuana grow operations for the cultivation and harvesting of legal marijuana thereby becoming the first publicly traded U.S. company to own a majority interest in a vertically integrated legal marijuana enterprise in the United States. In October 2015, concurrent with Oregon commencing legal sales of recreational marijuana through MMDs, KAYS opened its second retail operation in Salem, Oregon, our first Kaya Shack™ Marijuana Superstore. Oregon. During 2015, the Company also consolidated its grow operations and manufacturing operations into a single facility in Portland, Oregon.

 

In 2016, Oregon began the process to transition legal marijuana sales from Oregon Health Authority (“ OHA ”) licensed MMDs and grow operations to Oregon Liquor Control Commission (“ OLCC ”) licensed recreational marijuana retailers and producer and processing facilities. Effective January 1, 2017, all retailers of recreational marijuana were required to have a recreational marijuana sales license issued by the OLLC for each retail outlet operated.

 

Accordingly, in 2016 the Company applied for OLLC licenses for its two initial Kaya Shack™ retail outlets (Portland, Oregon and South Salem, Oregon), and also submitted license applications for its two additional locations, which were under construction and development at that time.

 

Recent Developments

 

OLCC Licensing and Additional Legal and Recreational Marijuana Stores

 

In late December 2016, we received our OLCC recreational, medical and home delivery license for the South Salem Kaya Shack™ Marijuana Superstore (Kaya Shack™ OLCC Marijuana Retailer License #1) and recreational and medical sales continued without interruption from 2016 through the present at that location.

 

On March 21, 2017, we received our OLCC recreational, medical and home delivery license for the North Salem Kaya Shack™ outlet (Kaya Shack™ OLCC Marijuana Retailer License #2) a 2,600-square foot Kaya Shack™ Marijuana Superstore in North Salem, Oregon, whereupon the location opened for business with both recreational and medical sales.

 

On May 2, 2017, we received our OLCC recreational, medical and home delivery license for our Portland Kaya Shack™ outlet (Kaya Shack™ OLCC Marijuana Retailer License #3) after a delay of approximately four months. During that period, we were limited to solely medical sales at the Portland location. Upon receipt of Kaya Shack™ OLCC Marijuana Retailer License #3, recreational sales recommenced at that location.

 

On February 15, 2018 we received our Our OLCC recreational, medical and home delivery license for the Central Salem Kaya Shack™ outlet (Kaya Shack™ OLCC Marijuana Retailer License #4) a 3,100-square foot Kaya Shack™ Marijuana Superstore in Central Salem, Oregon. After various construction and permitting delays, on April 12, 2018 the location opened for business with both recreational and medical sales.

 

A video depicting our Company’s OLCC Licensed Stores can be seen by accessing the following link:

 

 https://www.dropbox.com/s/49i5emi3wc0ha0d/Store%20Tour%20Final%20%28hi-res%29.mp4?dl=0

  2  

 

 

Additional Kaya Shack™ Marijuana Superstores

 

In addition to the four Kaya Shack™ retail marijuana stores the Company operates in Oregon, the Company plans to identify and lease locations for, license and operate up to four additional Kaya Shack™ Marijuana Superstores in other Oregon markets over the next 18 to 24 months, as well as explore opportunities in other states to increase its retail footprint. Additionally, the Company is exploring opportunities to further its operation in Oregon and elsewhere through the acquisition of currently licensed and operating retail operations, which can be converted to the Kaya Shack™ model.

 

  Expansion of Grow and Manufacturing Operations

 

On March 21, 2017, KAYS announced that it was in the process of expanding its grow and manufacturing operations and had retained a realtor to assist in identifying a suitable 30-60 acre tract of land in Oregon which would permit KAYS to expand its grow operations. As part of this expansion, KAYS ceased operations of its Portland grow facility at the end of March 2017, arranged to maintain its genetics library of over 30 strains of cannabis at an OHA licensed medical grow site and contracted with farmers to meet demand until the new facility is secured, built and fully operational.

 

In August 2017, KAYS acquired a 26 acre parcel in Lebanon, Oregon, which KAYS intends to develop as a legal cannabis cultivation and manufacturing facility. KAYS believes that the acquisition of a property will position the Company for future development, including increased Marijuana Canopy production to the maximum extent allowed by law through use of both greenhouse and outdoor grows, as well as expansion of its production capabilities with brands in oils, vape cartridges, concentrates, a selection of edibles, and infused creams and lotions.

A video of the Kaya Farms™ (Architect’s Project Rendition) can be seen at the following link:

https://www.dropbox.com/s/3po31ksdilcl9l9/Kaya_Farms%20Final.mp4?dl=0

On February 9, 2018 KAYS submitted a site plan review for the Company’s envisioned 101,000 square foot OLCC licensed Kaya Farms™ Marijuana Grow and Manufacturing Complex and an application for a conditional use permit for marijuana processing on the Company owned 26.50-acre property zoned Exclusive Farm Use (EFU) with the Linn County, Oregon Planning and Building Department.

On March 9, 2018 the Company was notified by the Linn County, Oregon Planning and Building Department that the application was deemed complete and received an official letter of completeness with respect to the application. The formal “ Letter of Completeness ,” sent March 9, 2018 by a Linn County Senior Planner, confirmed the eligibility of the Company’s 26-acre plot for the purposes of growing legal cannabis, as well as the eligibility of the property for a special purpose exemption for the Company’s proposed manufacturing operations. The County has tentatively scheduled a decision on the application for April 20, 2018.

 

$2.1 Million Financing

 

In March 2017, the Company completed a $2.1 million financing with an institutional investor (the “ Institutional Investor ”) who had previously furnished KAYS with $1.2 million in financing, pursuant to a financing agreement (the “$2.1M Financing Agreement ”) entered into between the Company and the Institutional Investor in December 2016. Pursuant to the $2.1M Financing Agreement, the Institutional Investor purchased $2.1 million in principal amount of convertible notes (the “$2.1M Notes ”) from the Company as follows:

 

 

$400,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common stock at a conversion price of $0.04;

 

 

$700,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common s tock at a conversion price of $0.07; and

  

 

$1,000,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common s tock at a conversion price of $0.10.

  3  

 

 

The purchase price for the $2.1M Notes is equal to the principal amount thereof. The $2.1M Notes have a term of two years from issuance and bear interest at the rate of eight percent (8%) annum, which accrues and is payable to together with interest at maturity. The Investor may convert the principal amount of the $2.1M Notes (as well as other notes it currently holds as referenced above), together with accrued but unpaid interest thereon, into shares at the applicable conversion price, at any time or from time to time prior to maturity. The conversion price is subject to adjustment for stock splits, stock dividends, recapitalizations and similar transactions. The $2.1M Notes also provide that at no time may they be convertible if the number of shares being issued upon conversion to and then held by the Institutional Investor would result in the Institutional Investor beneficially owning in excess of 4.99% of the Company’s then outstanding shares of common stock, after giving effect to the proposed conversion.

 

May 2017 Financing Agreement

 

On May 11, 2017, we entered into a second financing agreement with the Institutional Investor to provide the Company with up to an additional $5.8 million in convertible note funding (the “ May 2017 Notes ”) through July 31, 2018 (the “ May 2017 Financing Agreement ”). The May 2011 Financing Agreement was amended as of July 31, 2017, to increase the amount of funding available to the Company thereunder to $6.3 million and to extend the time period for such funding to May 31, 2019 and was subsequently amended as of November 15, 2017 and as of March 31, 2018, to further increase the amount of funding available to the Company thereunder to $7.75 million and to provide for the remaining $5.8million in principal amount of May 2017 Notes to be (a) convertible into shares of the Company’s common stock at conversion prices ranging from $0.03 to $0.11 pursuant to the terms of each May 2017 Note as described below; and (b) to extend the time period for such funding to April 30, 2020.

 

Moreover, pursuant to an additional agreement reached as of March 31, 2018, KAYS and the Institutional Investor agreed that effective as of January 1, 2019, (a) the maturity date of all then outstanding Company promissory notes held by the Institutional Investor and its affiliate, NWP Finance LTD, will be extended from January 1, 2019 to January 1, 2020; (b) all of the $1.75 million in principal amount of May 2017 Notes currently outstanding and the remaining $5.8 million in principal amount of May 2017 Notes which may be issued under the Agreement, as amended, are to be secured by a mortgage lien on the Company’s 26-acre Lebanon, Oregon property, substantially similar in form and substance to the mortgage securing the $500,000 in principal amount of $0.03 Secured Notes purchased by the Institutional Investor, with the caveat that the property, improvements or rights to utilize them cannot be directly or indirectly leased, assigned or otherwise pledged to any entity without approval of the Institutional Investor, and in the event that there is a change in control of the Company or its subsidiaries the May 2017 Notes become immediately due and payable; and (c) the Institutional Investor will be granted piggy-back registration rights with respect to shares of the Company’s common stock it may hold or is issuable upon conversion of any Notes it or its Assigns may hold in the event the Company files a Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended to sell shares of its common stock or permit the resale by shareholders of previously issued shares of common stock, up to a maximum of 30% of the shares registered under such registration statement.

 

Except as set forth above, the May 2017 Notes are substantially similar in form and substance to the $2.1M Notes that were part of the $2.1 million Financing Agreement entered into between the Company and the Institutional Investor in December 2016 and completed in March of 2017 (as well as the promissory notes evidencing approximately $1.2 million in financing previously received from the Institutional Investor in 2014 and 2015).

 

As of the date of this Annual Report, the Institutional Investor has purchased an aggregate of $1,750,000 in principal amount of May 2017 Notes from the Company under the May 2017 Financing Agreement, as amended to date, of which (a) $500,000 in principal amount of May 2017 Notes are convertible into shares of the Company’s common stock at a conversion price of $0.05 (the “ $0.05Notes ”); (b) $750,000 in principal amount of May 2017 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.03 (the “ $0.03Notes ”); (c) $500,000 in principal amount of May 2017 Notes, which are (i) convertible into shares of the Company’s common stock at a conversion price of $0.03; and (ii) secured by a mortgage lien on the Company’s 26 acre Lebanon, Oregon property (the “ $0.03 Secured Notes ”).

  4  

 

 

Under the May 2017 Financing Agreement, as amended to date, the Investor has the right to purchase another tranche of $0.03 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through July 31, 2018.

 

Provided the Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.03 Notes from the Company on or before July 31, 2018, the Investor will have the right to purchase another tranche of $0.03 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through December 31, 2018.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.03 Notes from the Company on or before December 31, 2018, the Institutional Investor will have the right to purchase up to an aggregate of $500,000 in principal amount of $0.05 Notes, at any time and from time to time through March 31, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.05 Notes from the Company on or before March 31, 2018, the Institutional Investor will have the right to purchase another tranche of $0.05 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through June 30, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.05 Notes from the Company on or before June 30, 2019, the Institutional Investor will have the right to purchase up to an aggregate of $400,000 in principal amount of May 2017 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.08 per share, at any time and from time to time through September 30, 2019 (the “ $0.08 Notes ”).

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before September 30, 2019, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through December 31, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before December 31, 2019, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through March 31, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before March 31, 2020, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through June 30, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase all $400,000 in principal amount of $0.08 Notes from the Company on or before June 30, 2020, the Institutional Investor will have the right to purchase up to an additional $550,000 in principal amount of May 2017 Notes from the Company at any time and from time to time through September 30, 2020, which Notes will be convertible into shares of common stock at a conversion price of $0.11 per share (the “$0.11 Notes ”).

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $550,000 in principal amount of $0.11 Notes from the Company on or before September 30, 2020, the Institutional Investor will have the right to purchase another tranche of $0.11 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through December 31, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $550,000 in principal amount of $0.11 Notes from the Company on or before December 31, 2020, the Institutional Investor will have the right to purchase another tranche of $0.11 Notes up to an aggregate of $1,100,000 in principal amount, at any time and from time to time through April 30, 2021.

  5  

 

 

January 2018 Financing

 

Effective January 22, 2018, we entered into a financing agreement with a high net worth investor (the “ HNW Investor ”) to provide the Company with up to $1.4 million in convertible note funding (the “ January 2018 Notes ”) through July 31, 2018 (the “ January 2018 Financing Agreement ”). Pursuant to the January 2018 Financing Agreement, upon execution of the January 2018 Financing Agreement, the HNW Investor purchased $100,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.10 per shares (the “$0.10 Notes ”).

 

Use of Proceeds

 

The proceeds from the offer and sale of the $2.1M Notes, the May 2017 Notes and the January 2018 notes, are and will be used to fund the Company’s growth plan, including expansion of our chain of Kaya Shack™ Marijuana Superstores in Oregon, acquisition and development of our Lebanon, Oregon legal cannabis cultivation and manufacturing facility and the introduction of new Kaya Shack™ branded cannabis products.

 

Market Overview

 

According to research firm Cowen & Co., legal cannabis sales in the U.S. are expected to reach $75 billion by 2030. The industry research firm Arcview, estimates a $22.6 billion legal cannabis market in North America by 2021, with 87% of all sales occurring in the United States. The Arcview forecast assumes a 27% compound annual growth rate, an assumption supported by current rates of growth, while reliant on additional states passing both recreational and medical cannabis laws.

 

Thirty states and the District of Columbia have legalized marijuana in some capacity. Additionally, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington State) and the District of Colombia have approved the implementation of legal recreational marijuana use. The Marijuana Business Factbook 2017, published by industry news source Marijuana Business Daily, estimates that the legal marijuana sector will grow more than 300% from sales of $1.8 billion to $17.1 billion in 2021. The firm estimates that the economic impact of the legal cannabis industry will exceed $70 billion, placing it almost on par with nutraceuticals and ahead of movie tickets and retail ice cream. According to the Factbook, “to get another idea of just how big the marijuana industry has become, look to employment numbers. The cannabis sector now employs between 165,000-230,000 full and part-time workers….to put this in perspective, there are now more marijuana industry workers than there are bakers or massage therapists in the United States”.

 

Kaya Cares Cannabis Opioids Swap Program

 

In November 2017 the Company assisting in initiating a conversation on the role marijuana can play in addressing the opioid epidemic by announcing a willingness to implement Kaya Cares, an opioid – cannabis replacement program for current opioid prescription holders seeking to explore the efficacy of marijuana as a pain management substitute. The Company is proud to announce that its initiative was promoted online by a Now Weed Episode that gathered more than half a million views, attracted the support of minor celebrities, and reached the highest echelons of the Oregon State Government. The Company is further pleased to share that the Oregon Liquor Control Commission (“OLCC”) which is the State of Oregon’s marijuana licensing and regulatory authority, has opened a dialogue with local experts to explore legal and practical ways to use cannabis to alleviate some of the consequences of the opioid epidemic in Oregon. Kaya Holdings management has and will be participating in this critical dialogue and hopes to be part of the solution.

 

Corporate Information

 

Our corporate office is located at 888 South Andrews Avenue, Suite 302, Fort Lauderdale, Florida, 33316. Our website is www.kayaholdings.com. Information contained on our website does not constitute part of this Annual Report.

 

  6  

 

 

The Kaya Shack™ Brand

 

 

 

 

Kaya Holdings operates the Kaya Shack™ brand of legal medical and recreational retail marijuana stores.

 

Kaya Holdings operates four recreational marijuana retail outlets and medical marijuana dispensaries in Oregon under the Kaya Shack™ brand. In addition to these four Kaya Shack™ retail marijuana stores, the Company plans to identify and lease locations for, license and seek to open up to four additional Kaya Shack™ Marijuana Superstores in other Oregon markets over the next 18 to 24 months, as well as explore opportunities in other states to increase its retail footprint. Additionally, the Company is exploring opportunities to further its operation in Oregon and elsewhere through the acquisition of currently licensed and operating retail operations, which can be converted to the Kaya Shack™ model.

 

Dubbed by the mainstream press as the “Starbucks of Marijuana” after our first outlet opened in July 2014, our operating concept is simple to deliver a consistent customer experience (quality products, fair prices and superior customer service) to a broad and diverse base of customers. Kaya Shack™ meets the quality needs of the “marijuana enthusiast”, the comfort and atmosphere of all including “soccer moms” and the price sensitivities of casual smokers.

 

The Kaya Shack™ brand communicates positive thinking and joy, with signs adorning the walls that read “It’s a Good Day to have a Good Day,” “Some of our Happiest Days Haven’t Even Happened Yet,” and our signature “Be Kind.”

 

Kaya Shack™ retail outlets are open 7 days a week- Monday through Saturday from 8:00 am to 10:00 pm, and Sunday 8:00 AM to 9:00 PM. Operations follow an operational manual that details procedures for 18 areas of operation including safety, compliance, store opening, store closing, merchandising, handling of cash, inventory control, product intake, store appearance and employee conduct.

 

In compliance with regulations, all marijuana and marijuana infused products sold through our stores are quality tested by independent labs to assure adherence to strict quality and OLCC regulations.

  7  

 

 

Kaya Shack™ Retail Outlets

 

I. Kaya Shack™ , 1719 SE Hawthorne Blvd., Portland, Oregon

 

 

 

 

 

 

 

 

Our first Kaya Shack™ is in the heart of the trendy Hawthorne district in southeast Portland (the Greenwich Village of the West Coast). The store is located next door to a cell phone repair shop, and near to Devil’s Dill restaurant and No Fun pub. There are also a McMenamins restaurant, tattoo parlor, convenience store, hair/nail salon and a soccer sports bar. The area around the shop is mixed use (commercial and residential).

  8  

 

 

 

 

 

The first Kaya Shack™ is approximately 700 square feet and is the model for the Company’s small urban shops. The store features an 8’ display case showcasing at least 25 strains of marijuana flower, an additional 8’ display case with a varied selection of oils, concentrates and topicals, and a standing display case with edibles such as cookies, chocolates, gummies, hard candies and more. The store also has a hospitality area that offers free water, coffee, tea and hot cocoa. As required by law, all products containing marijuana are either behind locked glass or behind the counter and out of customer reach.

 

 

Our Portland outlet initially operated as an MMD. In connection with the transition of recreational marijuana retailer licenses from the OHA to the OLCC, we applied for an OLCC license for the facility in 2016. However, issuance of the OLCC license for the Portland, Oregon outlet was delayed because of the need to resolve various local issues with the City of Portland. Accordingly, from January 1, 2017 until May 2, 2017, when we received Kaya Shack  TM OLCC Marijuana Retailer License #3 for this location, sales at the Portland, Oregon location were limited to medical marijuana and as such our revenues from this location were impacted.

  9  

 

 

II. Kaya Shack ™ Marijuana Superstore, South Salem, Oregon

 

 

 

 

   

Our second location (the first Kaya Shack  TM  Marijuana Superstore) opened for business on October 17, 2015 in South Salem, Oregon in time to take advantage of early recreational sales. Our South Salem Kaya Shack  ™  Marijuana superstore received Kaya Shack  TM  OLCC Marijuana Retailer License prior to the January 1, 2017 deadline to do so and both recreational and medical marijuana sales have continued at this location seamlessly.

  10  

 

 

 

 

The store is located in a strip mall alongside a Caesar’s Pizza, Aaron’s furniture, a convenience store, a tanning salon, and a nail salon. The plaza also has a Subway, a sports bar and a laundromat. The area around the shop is primarily commercial with residential complexes to be constructed beginning in 2018.

 

 

 

 

Located in the southern portion of Oregon’s capital city, Salem, this Kaya Shack™ is approximately 2,100 square feet and is the model for the Company’s marijuana superstore. The store features an 8’ display case with more than 25 strains of marijuana flower, an additional 8’ display case with a varied selection of oils, concentrates and topicals, an 8’ display case with accessories such as pipes, papers and brand related merchandise, and a standing display case with edibles such as cookies, chocolates, gummies, hard candies and more. The store also has a hospitality area that offers free water, coffee, tea and hot cocoa, and a “third space” sitting area. A fresh juice bar and a production room offering customers a chance to watch as the Company’s branded marijuana cigarettes, Kaya Buddies™, are produced are being installed.

  11  

 

 

III. Kaya Shack™ Marijuana Superstore, North Salem, Oregon  

 

   

 

 

 

 

Our third Kaya Shack™ (located in North Salem, Oregon) received Kaya Shack  TM  OLCC Marijuana Recreational Retailer License #3 on March 21, 2017. The store is located in a strip mall alongside a Starbucks Coffee, laundromat, and Adam’s Rib. The plaza also has medical offices and an Applebee’s. The area around the shop is primarily commercial.

  12  

 

 

 

 

Located in the northern portion of Oregon’s capital city, Salem, this Kaya Shack™ is 2,600 square feet. The store features an 8’ display case with more than 25 strains of marijuana flower, an additional 8’ display case with a varied selection of oils, concentrates and topicals, an 8’ display case with accessories such as pipes, papers and brand related merchandise, and standing display cases with edibles such as cookies, chocolates, gummies, hard candies and more. The store also has a hospitality area that offers free water, coffee, tea and hot cocoa and a “third space” sitting area. The Company plans to install a fresh juice bar, and a glassed-off kitchen facility slated to produce edibles and confections.

  13  

 

 

IV. Kaya Shack™ Marijuana Superstore, Central Salem, Oregon

 

 

 

Our fourth Kaya Shack™ is located in North Salem, Oregon in a strip mall directly behind Carl Jr. and Popeye’s Chicken restaurants and alongside a microbrewery sports bar, laundromat, and Hawaiian sandwich shop. The area around the shop is primarily commercial with residential complexes to be constructed in 2018. It has a footprint of approximately 3100 square feet and utilizes the Kaya Shack™ Marijuana Superstore model reflected in our third outlet and we believe substantially completes our geographic penetration of the Salem, Oregon market.

  14  

 

  

 

 

 

We received Kaya Shack  TM  OLCC Marijuana Recreational Retailer License #4 on February 15, 2018. After various construction and permitting delays, on April 12, 2018 the location opened for business with both recreational and medical sales.

 

The store features an 8’ display case with more than 25 strains of marijuana flower, an additional 8’ display case with a varied selection of oils, concentrates and topicals, an 8’ display case with accessories such as pipes, papers and brand related merchandise, and standing display cases with edibles such as cookies, chocolates, gummies, hard candies and more. The store also has a hospitality area that offers free water, coffee, tea and hot cocoa. The superstore concept also provides for a “third space” sitting area, a fresh juice bar, and in this location, an area for the production of the Company’s brand of custom glass pipes.

  15  

 

 

Kaya Shack™ Home Delivery

 

 

 

 

In early February of 2017, the Company began the process of filing applications to add Home Delivery Service for three of its Kaya Shack™ retail marijuana stores at the advice of one of their OLCC examiners. As of the date of this Annual Report, the Company has received approvals from the OLCC to add Home Delivery to all four of its currently OLCC licensed locations.

 

In addition to providing added value and convenience for our customers, extending visibility and building brand recognition for the Kaya Shack™ brand, we believe that Home Delivery provides greater market penetration, by allowing sales throughout the geographic area that our stores are licensed in. There is no limit to the number of delivery vehicles that can service an individual area using just one store as a home base, so in effect we intend to use this service to construct additional “virtual” Kaya Shacks™ without the added costs of additional brick and mortar locations.

 

On April 11, 2017 the Company took delivery of its first four Fiat 500 cars to begin building their Kaya Car™ Home Delivery Service fleet. The cars have been customized with distinctive Kaya Shack™ vehicle wrapping featuring the Company’s branding logos and colors and outfitted with safes and security, and the Company is developing the Kaya Shack™ Delivery App for use by its customers to order “Fast, Free Delivery” of the complete line of both medical and recreational grade Kaya Shack™ cannabis products.

 

The Company intends to initiate its Kaya Car™ Home Delivery Service within the next 30 days, contemporaneously with a grand opening celebration for all four OLCC-Licensed Kaya Shack™ retail marijuana stores and to commence to move to the next stage of branding and retail development. The Company has reserved and is developing the website www.kayadelivers.com to advance the growth of its delivery service.

  16  

 

 

  Kaya Farms™ Marijuana Grow and Manufacturing Complex

 

On March 21, 2017, KAYS announced that it was in the process of expanding its grow and manufacturing operations and had retained a realtor to assist in identifying a suitable acre tract of land in Oregon which would permit KAYS to expand its grow operations. As part of this expansion, KAYS ceased operations of its then existing Portland grow facility at the end of March 2017, arranged to maintain its genetics library of over 30 strains of cannabis at an OHA licensed medical grow site and contracted with farmers to meet demand until the new facility is secured, built and fully operational.

 

   

 

 

In August 2017, KAYS acquired a 26 acre parcel in Lebanon, Oregon, which KAYS intends to develop as a legal cannabis cultivation and manufacturing facility. KAYS believes that the acquisition of a property will position the Company for future development, including increased Marijuana Canopy production to the maximum extent allowed by law through use of both greenhouse and outdoor grows, as well as expansion of its production capabilities with brands in oils, vape cartridges, concentrates, a selection of edibles, and infused creams and lotions.

  17  

 

 

  Kaya Farms™ Pending Zoning Activity

 

On February 9, 2018 KAYS submitted a site plan review for the Company’s envisioned 101,000 square foot OLCC licensed Kaya Farms™ Marijuana Grow and Manufacturing Complex and an application for a conditional use permit for marijuana processing on the Company owned 26.50-acre property zoned Exclusive Farm Use (EFU) with the Linn County, Oregon Planning and Building Department.

 

 

On March 9, 2018 the Company was notified by the Linn County, Oregon Planning and Building Department that the application was deemed complete and received an official letter of completeness with respect to the application. The formal “ Letter of Completeness ,” sent March 9, 2018 by a Linn County Senior Planner, confirmed the eligibility of the Company’s 26-acre plot for the purposes of growing legal cannabis, as well as the eligibility of the property for a special purpose exemption for the Company’s proposed manufacturing operations. The County has tentatively scheduled a decision on the application for April 20, 2018.

 

Please see the following pages to view a copy of the Linn County “Letter of Completeness” for the Kaya Farms™ Marijuana Grow and Manufacturing Complex

  18  

 

 

 

 

 

 

 

 

 

 

  19  

 

 

  20  

 

 

  21  

 

 

  22  

 

 

  23  

 

 

  24  

 

 

  25  

 

 

  26  

 

 

Kaya Farms™ - Cannabis and Cannabis Products

 

  Kaya Buddie™ Strain Specific Cannabis Cigarettes

   

 

In 2016 the Company introduced a signature line of strain-specific connoisseur-grade, pre-rolled cannabis cigarettes branded as “Kaya Buddies™”. Kaya Buddies™ cannabis cigarettes have been very well received by medical patients and recreational users, with the Company selling almost 100,000 Kaya Buddies™ since launching the brand in January 2016. The brand, marketed under the tagline “Buds with Benefits”, features over 50 different strains of connoisseur-grade, high quality cannabis and proprietary specialty blends. In early 2018 the Company set up a formal manufacturing center for the production of Kaya Buddies™ at its South Salem Kaya Shack Superstore (Kaya #2) and is in the process of completing remodeling there to showcase the production of their Kaya Buddies™ cannabis cigarettes to shoppers.

  27  

 

Other Potential Markets

 

We believe that revenues and profitability will be enhanced through our planned opening of additional retail outlets utilizing the Kaya Shack™ brand and model in our chain, as well as economies of scale achieved by being a multi-location retail chain and being vertically integrated with grow and manufacturing operations. Ultimately, we believe that we can successfully enter other markets as they open up by applying our “brand” retail chain and vertically integrated grow and manufacture model to other states that legalize recreational marijuana use. Where applicable, we will seek to leverage our public company status to finance organic growth and enable acquisitions of existing locations for the Kaya Shack brand, as well as look to acquire and grow additional brands.

  

The California recreational cannabis market is by far the largest potential market in the country, and our operations in Oregon allow for a natural progression and expansion down the I-5 corridor into California. Florida, should it become a recreational market, could be a potentially large market for us as well, because we believe that KAYS would have a distinct advantage in the state, as it is one of the few Florida-based entities whose management has significant experience in owning and operating retail dispensaries, a grow and manufacturing operations.

 

Growth Strategy

 

The Company has established a well-defined strategy for entering and maintaining a strong presence in the legal marijuana sector. The cornerstones of this strategy include:

 

· All operations are to be conducted in accordance with State and Local Laws and Federal Enforcement Policies and Priorities as it relates to Marijuana (as outlined in the Justice Department's Cole Memo dated August 29, 2013, US Attorney General Jeff Sessions Memo dated January 4, 2018, and subsequent commentary from US Attorney for the District of Oregon Billy Williams).

 

· The Company will seek to operate in a vertically integrated manner (grow, process and sell) wherever permitted by law. In states where vertical integration is not permitted, the Company plans to determine which of the permitted activities offers the most potential for growth and value creation.

 

· The Company will seek to engage, sponsor or lead local advocacy and lobbying groups that have a significant impact on the evolution and character of laws and the regulations under which legal marijuana operations are implemented in select markets.

 

· The Company shall work with law enforcement and government officials to insure compliance with all regulations.

 

Marketing and Sales

  

The Company will only market its legal marijuana as in compliance with applicable state law.

 

The Company employs a marketing campaign consisting of four cornerstones:

 

· Promoting and establishing the Kaya Shack™ brand.

 

· A positive and active online presence.

 

· Daily specials and promotions.

 

· Quirky and fun holiday specials.

 

  28  

 

Our core strategic marketing objectives include:

 

Establishingthe Kaya Shack™ Brand – positioning the Company’s brand to have positive and value related associations with all prospective and existing customers.

 

Operating Cooperatively - cooperation, as a strategy, helps develop a network of suppliers and marketing channels able to promote Kaya Shack™.

 

Delivering Value - customer value is achieved when the perceived value of what we sell along with the value of the experience we deliver exceeds the price we charge.

 

Driving Customer Traffic - the only two ways to increase store income is to sell more to our existing customers and attract new customers. Programs are in place to accomplish both tasks.

 

  Government Regulation

 

We are subject to general business regulations and laws, as well as regulations and laws directly applicable to our operations. As we continue to expand the scope of our operations, the application of existing laws and regulations could include matters such as pricing, advertising, consumer protection, quality of products, and intellectual property ownership. In addition, we will also be subject to new laws and regulations directly applicable to our activities.

 

Any existing or new legislation applicable to us could expose us to substantial liability, including significant expenses necessary to comply with such laws and regulations, which could hinder or prevent the growth of our business.

 

Federal, state and local laws and regulations governing legal recreational and medical marijuana use are broad in scope and are subject to evolving interpretations, which could require us to incur substantial costs associated with compliance. In addition, violations of these laws or allegations of such violations could disrupt our planned business and adversely affect our financial condition and results of operations. In addition, it is possible that additional or revised federal, state and local laws and regulations may be enacted in the future governing the legal marijuana industry. There can be no assurance that we will be able to comply with any such laws and regulations and its failure to do so could significantly harm our business, financial condition and results of operations.  

Competition

  

The legal marijuana sector is rapidly growing and the Company faces significant competition in the operation of retail outlets, MMDs and grow facilities. Many of these competitors will have far greater experience, more extensive industry contacts and greater financial resources than the Company. There can be no assurance that we can adequately compete to succeed in our business plan.

 

Employees

 

As of the date of this Annual Report, our Oregon operations have a total of 17 part-time store employees including budtenders, trimmers, growers, and 5 full-time employees, consisting of two store managers, a Sales and Marketing Coordinator, the Director of Dispensary and Grow Operations and a Master Grower. Additionally, we engage several consultants to assist with daily duties and business plan implementation and execution. Additional employees will be hired and other consultants engaged in the future as our business expands. 

 

  29  

 

 

ITEM 1A. Risk Factors.

 

We have a limited operating history with our current business .

 

The Company was incorporated in 1993 and has engaged in a number of businesses as both a private and as a publicly held company, including the online sale of specialty foods, online marketing and website development.

 

KAYS’s legal marijuana business, which it has focused on since 2014, only commenced generating more than a limited level of revenues subsequent to the commencement of legal recreational marijuana sales in Oregon on October 1, 2015. Accordingly, our operations continue to be subject to all the problems, expenses, difficulties, complications and delays encountered in an early stage business. There can be no assurance that the Company will generate significant revenues or operate at a profit.

 

The Company will require additional financing to become commercially viable.

 

The Company’s current legal marijuana operations can be capital intensive.

 

During the years ended December 31, 2017 and 2016, we raised approximately $3,150,000 and $1,185,000 respectively, through a series of private of debt and equity offerings to finance operations for its legal marijuana operations in Oregon.

 

The Company incurred net losses of 14,881,793 and $19,849,262 for the years ended December 31, 2017 and 2016, respectively. The majority of our net losses during these years ended December 31, 2017 and 2016 were not actual operating losses but were a result of the derivative liabilities from the conversion of debt from the stabilization of our stock prices the reduces the volatility factors used in the derivative calculations. 

 

At December 31, 2017, we had a total stockholders' deficit of $32,402,409 and a working capital deficiency of $1,499,656. There can be no assurance that the Company will become commercially viable without additional financing, the availability and terms of which are uncertain. If the Company cannot secure necessary capital when needed on commercially reasonable terms, its business, condition (financial and otherwise) and commercial viability may be harmed. Although management believes that it will be able to successfully execute its business plan, which includes third party financing and the raising of capital to meet the Company’s future liquidity needs, there can be no assurances in this regard. These matters raise substantial doubt about the Company’s ability to continue as a going concern.

 

We currently rely on certain key individuals, and the loss of one of these key individuals could have an adverse effect on the Company.

 

Our success depends to a certain degree upon certain key members of our management and certain key consultants to the company. These individuals are a significant factor in our growth and success. The loss of the services of such members of management could have a material adverse effect on our Company.

 

The Company’s success will be dependent in part upon its ability to attract qualified personnel and consultants.

 

The Company’s success will be dependent in part upon its ability to attract qualified creative marketing, sales and development professionals. The inability to do so on favorable terms may harm the Company’s proposed business.

 

KAYS must effectively meet the challenges of managing expanding operations.

 

The Company’s business plan anticipates that operations will undergo significant expansion in 2017 and beyond. This expansion will require the Company manage a larger and more complex organization, which could place a significant strain on our managerial, operational and financial resources. Management may not succeed with these efforts. Failure to expand in an efficient manner could cause expenses to be greater than anticipated, revenues to grow more slowly than expected and could otherwise have an adverse effect on the business, financial condition and results of operations.

  30  

 

 

 

Marijuana remains illegal in the United States under federal law .

 

Notwithstanding its legalization for recreational and/or medical use by a growing number of states, the growing, transport, possession or selling of marijuana continues to be illegal under federal law. Although the Obama administration had made a policy decision to allow implementation of state laws legalizing recreational and/or medical marijuana use and not to federally prosecute anyone operating under state law, the continuance of that policy is not assured under the Trump administration and could change at any time, which might render our marijuana operations illegal and adversely affecting KAYS’s business, financial condition and results of operations.

 

  The marketing and market acceptance of marijuana may not be as rapid as KAYS expects.

 

The market for legal marijuana is quickly evolving, and activity in the sector is expanding rapidly. Demand and market acceptance for legal marijuana are subject to uncertainty and risk, as changes in the price and possible adverse political efforts could influence and denigrate demand. KAYS cannot predict whether, or how fast, this market will grow or how long it can be sustained. If the market for legal marijuana develops more slowly than expected or becomes saturated with competitors, KAYS’s operating results could be adversely impacted.

 

KAYS’s marijuana activities are part of an emerging industry.

 

The Company intends to implement an aggressive plan of growth to enter the legal recreational and medical marijuana industry. The legal marijuana industry is new and emerging, and has yet to fully define competitive, operational, financial and other parameters for successful operations. By pursuing a growth strategy to enter a new and emerging industry, the Company’s operations may be adversely impacted as the industry’s competitive, operational, financial and other parameters take shape. Given the fluidity of the industry, the Company may make errors in implementing its business plan, thereby limiting some or all of its ability to perform in accordance with its expectations.

 

Our business could be affected by changes in governmental regulation.

 

Federal, state and local laws and regulations governing legal recreational and medical marijuana use are broad in scope and are subject to evolving interpretations, which could require us to incur substantial costs associated with compliance. In addition, violations of these laws or allegations of such violations could disrupt KAYS’s planned business and adversely affect our financial condition and results of operations. In addition, it is possible that additional or revised federal, state and local laws and regulations may be enacted in the future governing the legal marijuana industry. There can be no assurance that KAYS will be able to comply with any such laws and regulations and its failure to do so could significantly harm our business, financial condition and results of operations.

 

Our business will be subject to other operating risks which may adversely affect the Company’s financial condition.

 

Our planned operations will be subject to risks normally incidental to manufacturing operations which may result in work stoppages and/or damage to property. This may be caused by:

 

· breakdown of the equipment;

 

· labor disputes;

 

· imposition of new government regulations;

 

· sabotage by operational personnel; 

 

· cost overruns; and

 

· fire, flood, or other acts of God.

  31  

 

We will likely face significant competition.

 

The legal marijuana industry is in its early stages and is attracting significant attention from both small and large entrants into the industry. KAYS expects to encounter significant competition as it implements its business strategy. The ability of KAYS to effectively compete could be hindered by a lack of funds, poor positioning, management error, and other factors. The inability to effectively compete could adversely affect our business, financial condition and results of operations.

 

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 office 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:

 

· pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company

 

· 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/or directors of the Company; and

 

· 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.

 

We do not have a sufficient number of employees to segregate responsibilities and may be unable to afford increasing our staff or engaging outside consultants or professionals to overcome our lack of employees. During the course of our testing, we may identity other deficiencies that we may not be able to timely remediate. In addition, if we fail to achieve and maintain the adequacy of our internal controls, as such standards are modified, supplemented or amended from time to time, we may not be able to ensure that we can conclude on an ongoing basis that we have effective internal controls over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 (“ Sarbanes Oxley ). Moreover, effective internal controls, particularly those related to revenue recognition, are necessary for us to produce reliable financial reports and are important to help prevent financial fraud. If we cannot provide reliable financial reports or prevent fraud, our business and operating results could be harmed, investors could lose confidence in our reported financial information, and the trading price of our common stock, if a market ever develops, could drop significantly

 

The Jumpstart our Business Startups Act of 2012 (the “Jobs Act”) has reduced the information that the Company is required to disclose.

 

Under the Jobs Act, the information that the Company will be required to disclose has been reduced in a number of ways.

  

As a company that had gross revenues of less than $1 billion during the Company’s last fiscal year, the Company is an “ emerging growth company ,” as defined in the Jobs Act (an “ EGC ”). The Company will retain that status until the earliest of (a) the last day of the fiscal year which the Company has total annual gross revenues of $1,000,000,000 (as indexed for inflation in the manner set forth in the Jobs Act) or more; (b) the last day of the fiscal year of following the fifth anniversary of the date of the first sale of the common stock pursuant to an effective registration statement under the Securities Act; (c) the date on which the Company has, during the previous three year period, issued more than $1,000,000,000 in non-convertible debt; or (d) the date on which the Company is deemed to be a “ large accelerated filer ,” as defined in Rule 12b-2 under the Exchange Act or any successor thereto. As an EGC, the Company is relieved from the following:  

  32  

 

 

· The Company is excluded from Section 404(b) of Sarbanes-Oxley, which otherwise would have requiredt he Company’s auditors to attest to and report on the Company’s internal control over financial reporting. The Jobs Act also amended Section 103(a)(3) of Sarbanes-Oxley to provide that (i) any new rules that may be adopted by the PCAOB requiring mandatory audit firm rotation or changes to the auditor’s report to include auditor discussion and analysis (each of which is currently under consideration by the PCAOB) shall not apply to an audit of an EGC; and (ii) any other future rules adopted by the PCAOB will not apply to the Company’s audits unless the SEC determines otherwise.

 

· The Jobs Act amended Section 7(a) of the Securities Act to provide that the Company need not present more than two years of audited financial statements in an initial public offering registration statement and in any other registration statement, need not present selected financial data pursuant to Item 301 of Regulation S-K for any period prior to the earliest audited period presented in connection with such initial public offering. In addition, the Company is not required to comply with any new or revised financial accounting standard until such date as a private company (i.e., a company that is not an “ issuer ” as defined by Section 2(a) of Sarbanes-Oxley) is required to comply with such new or revised accounting standard. Corresponding changes have been made to the Exchange Act, which relates to periodic reporting requirements, which would be applicable if the Company were required to comply with them.

 

· As long as the Company is an EGC, the Company may comply with Item 402 of Regulation S-K, which requires extensive quantitative and qualitative disclosure regarding executive compensation, by disclosing the more limited information required of a “ smaller reporting company .”

 

· In the event that the Company registers the common stock under the Exchange Act,t he Jobs Act will also exempt the Company from the following additional compensation-related disclosure provisions that were imposed on U.S. public companies pursuant to the Dodd-Frank Act:

 

(i) the advisory vote on executive compensation required by Section 14A(a) of the Exchange Act;

 

(ii) the requirements of Section 14A(b) of the Exchange Act relating to shareholder advisory notes on “golden parachute” compensation;

 

(iii) the requirements of Section 14(i) of the Exchange Act as to disclosure relating to the relationship between executive compensation and our financial performance; and

 

(iv) the requirement of Section 953(b)(1)of the Dodd-Frank Act, which requires disclosureas to the relationship between the compensation of the Company’s chief executive officer and median employee pay.

 The costs of being a public company could result in us being unable to continue as a going concern.

 

As a public company, we are required to comply with numerous financial reporting and legal requirements, including those pertaining to audits and internal control. The costs of this compliance could be significant. If our revenues do not increase and/or we cannot satisfy many of these costs through the issuance of our shares, we may be unable to satisfy these costs in the normal course of business that would result in our being unable to continue as a going concern.

 

Management and the Board of Directors may be indemnified.

 

The Certificate of Incorporation and Bylaws of KAYS provide for indemnification of directors and officers at the expense of the respective corporation and limit their liability. This may result in a major cost to the corporation and hurt the interests of stockholders because corporate resources may be expended for the benefit of directors and officers. The Company has been advised that, in the opinion of the Securities and Exchange Commission, indemnification for liabilities arising under federal securities laws is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

  33  

 

 

The market for the KAYS Shares is extremely limited and sporadic

 

KAYS’s common stock is quoted on the OTCQB tier of the over-the-counter market operated by OTC Markets Group, Inc. The market KAYS’s for common stock is limited and sporadic. Trading in stock quoted on the OTCQB is often thin and characterized by wide fluctuations in trading prices, due to many factors that may have little to do with our operations or business prospects. This volatility could depress the market price of KAYS’s common stock for reasons unrelated to operating performance. Moreover, the trading of securities in the OTCQB is often more sporadic than the trading of securities listed on a quotation system like NASDAQ, or a stock exchange like the New York Stock Exchange.

 

KAYS’s common stock is a penny stock. Trading of KAYS’s common stock may be restricted by the penny stock regulations adopted by the Securities and Exchange Commission (the “SEC”) and FINRA’s sales practice requirements, which may limit a stockholder’s ability to buy and sell our common stock.

 

KAYS’s common stock is a penny stock. The SEC has adopted Rule 15g-9 which generally defines “penny stock ” to be any equity security that has a market price (as defined) less than $5.00 per share or an exercise price of less than $5.00 per share, subject to certain exceptions. KAYS’s common stock is covered by the penny stock rules, which impose additional sales practice requirements on broker-dealers who sell to persons other than established customers and accredited investors. The term “ accredited investor ” refers generally to institutions with assets in excess of $5,000,000 or individuals with a net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with their spouse. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk disclosure document in a form prepared by the SEC which provides information about penny stocks and the nature and level of risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the compensation of the broker-dealer and its salesperson in the transaction and monthly account statements showing the market value of each penny stock held in the customer’s account. The bid and offer quotations, and the broker-dealer and salesperson compensation information must be given to the customer orally or in writing prior to effecting the transaction and must be given to the customer in writing before or with the customer’s confirmation. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from these rules; the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written agreement to the transaction. These disclosure requirements may have the effect of reducing the level of trading activity in the secondary market for the stock that is subject to these penny stock rules. Consequently, these penny stock rules may affect the ability of broker-dealers to trade our securities. We believe that the penny stock rules discourage investor interest in, and limit the marketability of, KAYS’s common stock.

 

In addition to the penny stock rules promulgated by the SEC, FINRA (the Financial Industry Regulatory Authority) has adopted rules that require when recommending an investment to a customer, a broker- dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low -priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, the FINRA believes that there is a high probability that speculative low-priced securities will not be suitable for at least some customers. FINRA’s requirements make it more difficult for broker-dealers to recommend that their customers buy KAYS’s common stock, which may limit investor ability to buy and sell KAYS’s common stock.

 

The market for penny stocks has experienced numerous frauds and abuses that could adversely impact KAYS’s common stock.  

 

Company management believes that the market for penny stocks has suffered 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 a promoter

or issuer;

 

  34  

 

· 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 sales persons;

 

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

 

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

 

The board of directors of KAYS has the authority, without stockholder approval, to issue preferred stock with terms that may not be beneficial to common stockholders and with the ability to adversely affect common stockholder voting power and rights upon liquidation.

 

KAYS’s Certificate of Incorporation allows us to issue shares of preferred stock without any vote or further action by our stockholders. Our board of directors has the authority to fix and determine the relative rights and preferences of preferred stock. As a result, our board of directors could authorize the issuance of a series of preferred stock that would grant to holders of preferred stock the rights to our assets upon liquidation, the right to receive dividend payments before dividends are distributed to the holders of common stock and the right to the redemption of the shares, together with a premium, prior to the redemption of our common stock.

 

The ability of our principal stockholders, including our CEO, to control our business may limit or eliminate minority stockholders’ ability to influence corporate affairs.

 

The principal stockholder of KAYS holds 22,996,833 shares of common stock and $500K in principal amount of convertible promissory notes which are convertible into 50,000 shares of Series C Convertible Stock. Additionally, our CEO owns 5,280,144 shares of common stock and 50,000 shares of Series C Convertible Preferred Stock. These preferred shares notes can be converted into a total of 43,329,970 shares of KAYS common stock which, added to the common shares of KAYS held by both parties gives them approximately 41% of votes on matters presented to stockholders. Accordingly, they are in a position to significantly influence membership of our board of directors as well as all other matters requiring stockholder approval. The interests of our principal stockholders may differ from the interests of other stockholders with respect to the issuance of shares, business transactions with or sales to other companies, selection of other officers and directors and other business decisions. The minority stockholders have no way of overriding decisions made by our principal stockholders. This level of control may also have an adverse impact on the market value of our shares because our principal stockholders may institute or undertake transactions, policies or programs that result in losses and/or may not take any steps to increase our visibility in the financial community and/or may sell sufficient numbers of shares to significantly decrease our price per share.

 

We do not expect to pay cash dividends in the foreseeable future.

 

KAYS has not paid cash dividends on its shares of common stock and does not intend to do so at any time in the foreseeable future. The future payment of dividends depends upon future earnings, capital requirements, financial requirements and other factors that the companies’ boards of directors will consider. Since they do not anticipate paying cash dividends on the common stock, return on investment, if any, will depend solely on an increase, if any, in the market value of the common stock.

 

The conversion of KAYS’ outstanding preferred stock by the CEO and convertible debt held by our principal stockholder would result in the issuance of 43,329,970 shares of KAYS’ common stock. Additionally, conversion of other convertible debt described in this Annual Report would result in further dilution to KAYS’ stockholders. Accordingly, such market overhang could adversely impact the market price of the common stock.

  35  

 

 

KAYS has 50,000 shares of Series C Convertible Preferred Stock outstanding, all of which are held by our CEO. Additionally, KAYS has $500K in principal amount of convertible promissory notes outstanding held by our principal stockholder, which are convertible into 50,000 shares of Series C Convertible Stock. These preferred shares and convertible promissory notes can be converted into a total of 43,329,970 shares of KAYS common stock. Additionally, the company has other convertible debt described in this Annual Report, which would result in further dilution if converted Such market overhang could adversely impact the market price of KAYS’s common stock as a result of the dilution which would result if such securities were converted into shares of KAYS common stock.

 

Future sales of shares of KAYS common stock pursuant to Rule 144 under the Securities Act could adversely affect the market price of KAYS’s common stock.

 

KAYS has a substantial number of shares of common stock which were issued in transactions exempt from the registration requirements of the Securities Act and are now available for public sale pursuant to the Rule 144 under the Securities Act. Such sales could adversely affect the market price of KAYS’s common stock.

 

Because we are not subject to compliance with rules requiring the adoption of certain corporate governance measures, our stockholders have limited protection against interested-director transactions, conflicts of interest and similar matters.

 

Sarbanes-Oxley as well as rule changes proposed and enacted by the SEC, the NYSE/AMEX and the NASDAQ Stock Market as a result of Sarbanes-Oxley, require the implementation of various measures relating to corporate governance. These measures are designed to enhance the integrity of corporate management and the securities markets and apply to securities that are listed on those exchanges or the NASDAQ Stock Market. Because we are not currently required to comply with many of the corporate governance provisions and because we chose to avoid incurring the substantial additional costs associated with voluntary compliance, we have not yet adopted these measures.

 

We do not currently have independent audit or compensation committees. As a result, directors have the ability, among other things, to determine their own level of compensation. Until we comply with such corporate governance measures, regardless of whether such compliance is required, the absence of such standards of corporate governance may leave our stockholders without protections against interested- director transactions, conflicts of interest, if any, and similar matters and investors may be reluctant to provide us with funds necessary to expand our operations as a result thereof.

 

We intend to comply with all corporate governance measures relating to director independence as and when required. However, we may find it very difficult or be unable to attract and retain qualified officers, directors and members of board committees required to provide for our effective management as a result of Sarbanes-Oxley. The enactment of Sarbanes-Oxley has resulted in a series of rules and regulations by the SEC that increase responsibilities and liabilities of directors and executive officers. The perceived increased personal risk associated with these recent changes may make it more costly or deter qualified individuals from accepting these roles.

 

Item 1B. Unresolved Staff Comments.

 

Not applicable.

 

Item 2. Properties.

 

The Company maintains office space at 888 S Andrews Ave, Suite 302, Fort Lauderdale, Florida 33316, pursuant to the terms of a commercial office lease providing for current rental payments of $4,055.63 per month. The lease was entered into on June 12, 2017, provides for an annual escalation of 3% effective January 1 of each year and extends for a period of five (5) years.

 

Our Kaya Shack™ retail outlet located at 1719 SE Hawthorne Boulevard, Portland, Oregon 97214, is occupied pursuant to a lease expiring in April 2019, at a current monthly rental of $ 2,430.94. The lease provides for an annual rental rate increase of 4% effective May of each year, and two (2) five-year extension options at market rate.

 

Our Kaya Shack™ Marijuana Superstore located at 5757 Commercial Street SE, Salem, Oregon 97306 is occupied pursuant to a lease expiring in May 2020, at a current monthly rental of $ 4,195.84. The lease provides for an annual rental rate increase of 3% effective May of each year, and two (2) five-year extension options at market rate.

  36  

 

 

Our Kaya Shack™ Marijuana Superstore opened in March 2017 and located at 2505 Liberty Road NE #120, Salem, Oregon 97301 is occupied pursuant to a lease expiring in August, 2022, at a current monthly rental of $ 6,182.23. The lease provides for an annual rental rate increase of 3 % effective August of each year, and two (2) five-year extension options at market rate.

 

Our Kaya Shack™ Marijuana Superstore located dispensary at 1252 23 rd St. SE #150, Salem, Oregon 97306, which opened April 12, 2018 is occupied pursuant to a lease expiring in August, 2022 at a current monthly rental of $6,720.02. The lease provides for an annual rental rate increase of 3% effective May of each year, and two (2) five-year extension options at market rate.

 

Until March 31, 2017, we operated our Kaya Shack™ West Coast Base of Operation in Portland, Oregon pursuant to a lease which was originally scheduled to expire in 2019. The current rental for that facility was $6,240.00. As disclosed in “ Item 1. Business ” we terminated that lease by agreement with the landlord as part of our plan to relocate our grow and manufacturing operations to and expand them in a larger facility.

 

.As disclosed in “ Item 1. Business ,” in August 2017, KAYS acquired a 26 acre parcel in Lebanon, Oregon, which KAYS intends to develop as a legal cannabis cultivation and manufacturing facility. The purchase price for the property was $ 510,000.00, paid in full upon acquisition.

 

  ITEM 3. Legal Proceedings.

 

From time to time KAYS be party to various legal proceedings in the ordinary course of business. No currently pending proceedings, if adversely determined, are expected to have a material adverse effect on KAYS, its properties, operations and conditions (financial or otherwise).

 

ITEM 4. Mine Safety Disclosures.  

 

PART II

 

ITEM 5. Market for Registrant’s Common Equity and Related Stockholder Matters.

 

Market for Common Stock

 

Our common stock is currently traded on the OTCQB tier of the over-the-counter market operated by OTC Markets Group, Inc. under the symbol “KAYS”. Such market is extremely limited. We can provide no assurance that our shares will be continued to be traded on the OTCQB or another exchange, or if traded, that the current public market will be sustainable.

 

The following table sets forth the range of high and low bid quotations, obtained from Yahoo Finance, for our common stock as reported each of the periods indicated. These quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions.

 

  Quarter        High     Low
  December 31, 2017       $.30   $.10
  September 30, 2017       $.188   $.11
  June 30, 2017       $.273   $.14
  March 31, 2017       $.453   $.2862
  December 31, 2016       $.57   $.07
  September 30, 2016       $.08   $.06
  June 30, 2016       $.09   $.05
  March 31, 2016       $.12   $.06

 

 

  37  

 

The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or system. The penny stock rules require a broker-dealer, prior to a transaction in a penny stock, to deliver a standardized risk disclosure document prepared by the SEC, that: (a) contains a description of the nature and level of risk in the market for penny stocks in both public offerings and secondary trading; (b) contains a description of the broker’s or dealer’s duties to the customer and of the rights and remedies available to the customer with respect to a violation to such duties or other requirements of securities laws; (c) contains a brief, clear, narrative description of a dealer market, including bid and ask prices for penny stocks and the significance of the spread between the bid and ask price; (d) contains a toll-free telephone number for inquiries on disciplinary actions; (e) defines significant terms in the disclosure document or in the conduct of trading in penny stocks; and (f) contains such other information and is in such form, including language, type, size and format, as the SEC shall require by rule or regulation.

 

 

The broker-dealer also must provide, prior to effecting any transaction in a penny stock, the customer with (a) bid and offer quotations for the penny stock; (b) the compensation of the broker-dealer and its salesperson in the transaction; (c) the number of shares to which such bid and ask prices apply, or other comparable information relating to the depth and liquidity of the market for such stock; and (d) monthly account statements showing the market value of each penny stock held in the customer’s account. 

 

In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written acknowledgment of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitability statement.

 

These disclosure requirements may have the effect of reducing the trading activity in the secondary market for our stock if it becomes subject to these penny stock rules. Therefore, because our common stock is subject to the penny stock rules, stockholders may have difficulty selling those securities.

 

Holders of Our Common Stock

 

As of April 17, 2017 we had 618 holders of record of our common stock. One of these holders is CEDE and Company which is the mechanism used for brokerage firms to hold securities in book entry form on behalf of their clients and as of April 17, 2017, they held 66,685,898 shares of common stock for these shareholders. Accordingly, we believe that KAYS has in excess of 4,000 beneficial stockholders as of such date.

 

 

  38  

 

Securities Authorized for Issuance under Equity Compensation Plans 

 

        Number of securities to       Number of securities remaining available for
        be issued upon exercise of   Weighted-average exercise   future insurance under equity compensations
        outstanding options,   price of outstanding options,   plans (excluding securities reflected in column
Plan category     warrants and rights   warrants and rights   (a))
Equity compensation plans            
approved by security   17,225,000 shares (1)       2,775,000 shares (1)
holders         n/a  
                 
Equity compensation plans            
not approved by security            
holders       0 shares   n/a   0 shares

 

(1) Represents shares of common stock issued or reserved for issuance under our 2011 Incentive Stock Plan.

 

Recent Sales of Unregistered Securities

 

As detailed in the accompanying financial statements and footnotes, in 2017 KAYS issued a total of 21,266,292 shares of common stock to shareholders of the Company for conversion of principal and interest due from convertible promissory notes.

 

Additionally, as noted in prior 8K and 10-Q filings KAYS as well as elsewhere in this 10K filing, in 2017 KAYS sold a total of $1,850,000.00 principal amount of Convertible Promissory Notes from the $2.1 Million Financing Agreement and $1,300,000.00 principal amount of Convertible Promissory Notes from the May 2017 Financing Agreement.

 

In 2018 KAYS received a total of $450,000.00 from additional sales of Convertible Promissory Notes pursuant to the May 2017 Financing Agreement and $100,000.00 from the January 2018 Financing Agreement (see below).

 

January 2018 Financing Agreement

 

Effective January 22, 2018, we entered into a financing agreement with a high net worth investor (the “HNW Investor”) to provide the Company with up to $1.4 million in convertible note funding (the “January 2018 Notes”) through July 31, 2018 (the “January 2018 Financing Agreement”). Pursuant to the January 2018 Financing Agreement, upon execution of the January 2018 Financing Agreement, the HNW Investor purchased $100,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.10 per shares (the “$0.10 Notes”).

 

The HNW Investor has the right to purchase up to an aggregate of $250,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.125 per share, at any time and from time to time through June 30, 2018 (the “$0.125 Notes”).

 

Provided the HNW Investor has fulfilled its obligation to purchase $250,000 in principal amount of $0.125 Notes from the Company on or before June 30, 2018, the HNW Investor will have the right to purchase up to an aggregate of $300,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.15 per share, at any time and from time to time through December 31, 2018 (the “$0.15 Notes”).

 

Provided the HNW Investor has fulfilled its obligation to purchase $300,000 in principal amount of $0.15 Notes from the Company on or before December 31, 2018, the HNW Investor will have the right to purchase up to an aggregate of $350,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.175 per share, at any time and from time to time through June 30, 2019 (the “$0.175 Notes”).

  39  

 

Provided the HNW Investor has fulfilled its obligation to purchase $350,000 in principal amount of $0.175 Notes from the Company on or before June 30, 2019, the HNW Investor will have the right to purchase up to an aggregate of $400,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.20 per share, at any time and from time to time through December 31, 2019.

 

The purchase price for the January 2018 Notes is equal to the principal amount thereof. The January 2018 Notes have a term of two years from issuance, bear interest at the rate of five percent (5%) annum, which accrues and is payable to together with interest at maturity and are otherwise substantially similar in form and substance to the $2.1M Notes and the May 2017 Notes.

 

All the above securities were issued pursuant to the exemption from registration under the Securities Act afforded by Section 4(a)(2) thereof and Regulation D thereunder.

 

ITEM 6. Selected Financial Data. Not applicable.

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

Results of Operations

 

Year ended December 31, 2017 compared to year ended December 31, 2016

 

Revenues

 

We had revenues of $966,382 for the year ended December 31, 2017, as compared to revenues of $952,852 for the year months ended December 31, 2016. Our revenues during the first quarter and part of the second quarter of 2017 were adversely impacted as a result in the delay in receiving OLCC licensing for our Portland retail outlet until May 2, 2017, which rendered such location unable to process legal recreational sales for the first four calendar months of 2017, which was offset in part by sales from our third retail location (and second Kaya Shack™ Marijuana Superstore), which received its OLCC license and commenced recreational and medical marijuana sales in March 2017.

 

Operating Expenses

 

General and administrative increased to 1,313,254 for the year ended December 31, 2017, from $504,617 for the year months ended December 31, 2016. Salaries and wages increased to $436,163 for the year ended December 31, 2017, from $297,760 for the year ended December 31, 2016. The increases in these expense categories from 2016 to 2017, reflects our increased level of operations, including construction and licensing of two additional Kaya Shack™ Marijuana Superstores, the first of which opened in March 2017 and the second of which opened in April 2018, after encountering various permitting and construction delays. Professional fees for the year ended December 31, 2017, decreased to $809,809 from $1,352,543 for the year ended December 31, 2016, reflecting the completion of licensing work with respect to the Company’s third and fourth retail outlets and the resolution of certain outstanding litigation. The significant increase in general and administrative expenses was offset by the significant decrease in professional fees, resulting in total operating expenses of $1,987,267 for the year ended December 31, 2017. This compares to total operating expenses of $1,755,358 for the year ended December 31, 2016. Accordingly, our operating loss decreased to $1,987,267 for the year ended December 31, 2017, from $1,755,358 for the year ended December 31, 2016, notwithstanding the increased level of the Company’s operations.

 

  40  

 

Interest expense

 

Interest expense increased to $354,374 for the year ended December 31, 2017, as compared to $286,383 for the year ended December 31, 2016, reflecting additional debt incurred in 2017 to fund expansion of our operations.

 

Net Income (Loss)

 

After giving effect to an operating loss of $1,987,267 interest expense of $354,374, legal settlement costs of $247,500, amortization of debt discount of $2,267,026 derivative liabilities expense of $18,377,623 and loss on extinguishment of debt of $67,442 offset by other income from a change in derivative liabilities expense of $8,221,485 (arising from the stabilization of our stock prices which reduced the volatility factors used in the derivative calculations), we had net loss of $15,090,593 for the year ended December 31, 2017. This compares with a net loss of $20,204,199 for the year ended December 31, 2016, after giving effect to an operating loss of $1,755,358, interest expense of $286,383, amortization of debt discount of $1,638,984, derivative liabilities expense of $2,220,663 and, expense from a change in derivative liabilities expense of $14,302,811(arising from the de-stabilization of our stock prices which increased the volatility factors used in the derivative calculations).

 

Liquidity and Capital Resources

 

Overview

 

During 2017 our cash position increased by 11,578 to $318,462 and our negative working capital decreased by $505,332 to $1,499,656, excluding derivative liabilities. As of December 31,, 2017, our working capital consisted of cash of $318,462 inventories of $118,296; and prepaid expenses of $9,094. Our current liabilities include accounts payable of $464,462 and $8,923, accrued expenses of $302,341 and notes payable of $1,169,782.

 

The following table sets forth the major sources and uses of cash for the years ended December 31, 2017 and 2016:          

 

    2017   2016
Net cash used in operating activities   $ 2,214,245   $ 1,089,371    
Net cash used in investing activities     749,812       54,885  
Net cash provided by financing activities     2,975,634       1,111,790    
Net (decrease) increase in cash   $ (11,578 )   $ (32,466)  

 

Cash Used in Operating Activities

 

During 2017, we used cash of 2,214,245 in operating activities. versus cash of 1,089,371 in 2016.

 

Cash Used in Investing Activities

 

During 2017, we used cash of $749,812 in investing activities. This amount was spent on the purchase of our 26-acre real property in Lebanon, Oregon, the buildout of our third retail store, the buildout of our fourth retail outlet in Salem, Oregon, the purchase of delivery vehicles and the purchase of furniture and equipment.

 

During 2016, we used cash of 54,885 in investing activities, all of which was attributable to the purchase of furniture and equipment.

 

  41  

 

Cash Provided by Financing Activities

 

During 2017, $3,150,000 of convertible debt was issued to provide working capital. The Company used $254,366 to repay equipment debt and convertible debt

 

During 2016, the Company raised a total of $1,185,000 through the private sale of debt and equity securities and used $73,210 to repay notes payable.

 

Additional Capital

 

As of December 31, 2017, we had cash of $318,462 and a working capital deficiency of $1,459,656.

 

$2.1 Million Financing

 

In March 2017, the Company completed a $2.1 million financing with an institutional investor (the “ Institutional Investor ”) who had previously furnished KAYS with $1.2 million in financing, pursuant to a financing agreement (the “$2.1M Financing Agreement ”) entered into between the Company and the Institutional Investor in December 2016. Pursuant to the $2.1M Financing Agreement, the Institutional Investor purchased $2.1 million in principal amount of convertible notes (the “$2.1M Notes ”) from the Company as follows:

 

 

$400,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common stock at a conversion price of $0.04;

 

 

$700,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common stock at a conversion price of $0.07; and

  

 

$1,000,000 in principal amount of $2.1M Notes which are convertible into shares of the Company’s common stock at a conversion price of $0.10.

 

The purchase price for the $2.1M Notes is equal to the principal amount thereof. The $2.1M Notes have a term of two years from issuance and bear interest at the rate of eight percent (8%) annum, which accrues and is payable to together with interest at maturity. The Investor may convert the principal amount of the $2.1M Notes (as well as other notes it currently holds as referenced above), together with accrued but unpaid interest thereon, into shares at the applicable conversion price, at any time or from time to time prior to maturity. The conversion price is subject to adjustment for stock splits, stock dividends, recapitalizations and similar transactions. The $2.1M Notes also provide that at no time may they be convertible if the number of shares being issued upon conversion to and then held by the Institutional Investor would result in the Institutional Investor beneficially owning in excess of 4.99% of the Company’s then outstanding shares of common stock, after giving effect to the proposed conversion.

 

May 2017 Financing Agreement

 

On May 11, 2017, we entered into a second financing agreement with the Institutional Investor to provide the Company with up to an additional $5.8 million in convertible note funding (the “ May 2017 Notes ”) through July 31, 2018 (the “ May 2017 Financing Agreement ”). The May 2011 Financing Agreement was amended as of July 31, 2017, to increase the amount of funding available to the Company thereunder to $6.3 million and to extend the time period for such funding to May 31, 2019 and was subsequently amended as of November 15, 2017 and as of March 31, 2018, to further increase the amount of funding available to the Company thereunder to $7.75 million and to provide for the remaining $5.8million in principal amount of May 2017 Notes to be (a) convertible into shares of the Company’s common stock at conversion prices ranging from $0.03 to $0.11 pursuant to the terms of each May 2017 Note as described below; and (b) to extend the time period for such funding to April 30, 2020.

 

  42  

 

Moreover, pursuant to an additional agreement reached as of March 31, 2018, KAYS and the Institutional Investor agreed that effective as of January 1, 2019, (a) the maturity date of all then outstanding Company promissory notes held by the Institutional Investor and its affiliate, NWP Finance LTD, will be extended from January 1, 2019 to January 1, 2020; (b) all of the $1.75 million in principal amount of May 2017 Notes currently outstanding and the remaining $5.8 million in principal amount of May 2017 Notes which may be issued under the Agreement, as amended, are to be secured by a mortgage lien on the Company’s 26-acre Lebanon, Oregon property, substantially similar in form and substance to the mortgage securing the $500,000 in principal amount of $0.03 Secured Notes purchased by the Institutional Investor, with the caveat that the property, improvements or rights to utilize them cannot be directly or indirectly leased, assigned or otherwise pledged to any entity without approval of the Institutional Investor, and in the event that there is a change in control of the Company or its subsidiaries the May 2017 Notes become immediately due and payable; and (c) the Institutional Investor will be granted piggy-back registration rights with respect to shares of the Company’s common stock it may hold or is issuable upon conversion of any Notes it or its Assigns may hold in the event the Company files a Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended to sell shares of its common stock or permit the resale by shareholders of previously issued shares of common stock, up to a maximum of 30% of the shares registered under such registration statement.

 

Except as set forth above, the May 2017 Notes are substantially similar in form and substance to the $2.1M Notes that were part of the $2.1 million Financing Agreement entered into between the Company and the Institutional Investor in December 2016 and completed in March of 2017 (as well as the promissory notes evidencing approximately $1.2 million in financing previously received from the Institutional Investor in 2014 and 2015).

 

As of the date of this Annual Report, the Institutional Investor has purchased an aggregate of $1,750,000 in principal amount of May 2017 Notes from the Company under the May 2017 Financing Agreement, as amended to date, of which (a) $500,000 in principal amount of May 2017 Notes are convertible into shares of the Company’s common stock at a conversion price of $0.05 (the “ $0.05Notes ”); (b) $750,000 in principal amount of May 2017 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.03 (the “ $0.03Notes ”); (c) $500,000 in principal amount of May 2017 Notes, which are (i) convertible into shares of the Company’s common stock at a conversion price of $0.03; and (ii) secured by a mortgage lien on the Company’s 26 acre Lebanon, Oregon property (the “ $0.03 Secured Notes ”).

 

Under the May 2017 Financing Agreement, as amended to date, the Investor has the right to purchase another tranche of $0.03 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through July 31, 2018.

 

Provided the Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.03 Notes from the Company on or before July 31, 2018, the Investor will have the right to purchase another tranche of $0.03 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through December 31, 2018.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.03 Notes from the Company on or before December 31, 2018, the Institutional Investor will have the right to purchase up to an aggregate of $500,000 in principal amount of $.005 Notes, at any time and from time to time through March 31, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.05 Notes from the Company on or before March 31, 2018, the Institutional Investor will have the right to purchase another tranche of $0.05 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through June 30, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $500,000 in principal amount of $0.05 Notes from the Company on or before June 30, 2019, the Institutional Investor will have the right to purchase up to an aggregate of $400,000 in principal amount of May 2017 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.08 per share, at any time and from time to time through September 30, 2019 (the “ $0.08 Notes ”).

 

  43  

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before September 30, 2019, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through December 31, 2019.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before December 31, 2019, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through March 31, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $400,000 in principal amount of $0.08 Notes from the Company on or before March 31, 2020, the Institutional Investor will have the right to purchase another tranche of $0.08 Notes up to an aggregate of $400,000 in principal amount, at any time and from time to time through June 30, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase all $400,000 in principal amount of $0.08 Notes from the Company on or before June 30, 2020, the Institutional Investor will have the right to purchase up to an additional $550,000 in principal amount of May 2017 Notes from the Company at any time and from time to time through September 30, 2020, which Notes will be convertible into shares of common stock at a conversion price of $0.11 per share (the “$0.11 Notes ”).

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $550,000 in principal amount of $0.11 Notes from the Company on or before September 30, 2020, the Institutional Investor will have the right to purchase another tranche of $0.11 Notes up to an aggregate of $500,000 in principal amount, at any time and from time to time through December 31, 2020.

 

Provided the Institutional Investor has fulfilled its obligation to purchase the additional $550,000 in principal amount of $0.11 Notes from the Company on or before December 31, 2020, the Institutional Investor will have the right to purchase another tranche of $0.11 Notes up to an aggregate of $1,100,000 in principal amount, at any time and from time to time through April 30, 2021.

 

January 2018 Financing

 

Effective January 22, 2018, we entered into a financing agreement with a high net worth investor (the “ HNW Investor ”) to provide the Company with up to $1.4 million in convertible note funding (the “ January 2018 Notes ”) through July 31, 2018 (the “ January 2018 Financing Agreement ”). Pursuant to the January 2018 Financing Agreement, upon execution of the January 2018 Financing Agreement, the HNW Investor purchased $100,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.10 per shares (the “$0.10 Notes ”).

 

The HNW Investor has the right to purchase up to an aggregate of $250,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.125 per share, at any time and from time to time through June 30, 2018 (the “ $0.125 Notes ”).

 

Provided the HNW Investor has fulfilled its obligation to purchase $250,000 in principal amount of $0.125 Notes from the Company on or before June 30, 2018, the HNW Investor will have the right to purchase up to an aggregate of $300,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.15 per share, at any time and from time to time through December 31, 2018 (the “ $0.15 Notes ”).

 

Provided the HNW Investor has fulfilled its obligation to purchase $300,000 in principal amount of $0.15 Notes from the Company on or before December 31, 2018, the HNW Investor will have the right to purchase up to an aggregate of $350,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.175 per share, at any time and from time to time through June 30, 2019 (the “ $0.175 Notes ”).

 

Provided the HNW Investor has fulfilled its obligation to purchase $350,000 in principal amount of $0.175 Notes from the Company on or before June 30, 2019, the HNW Investor will have the right to purchase up to an aggregate of $400,000 in principal amount of January 2018 Notes, which are convertible into shares of the Company’s common stock at a conversion price of $0.20 per share, at any time and from time to time through December 31, 2019.

 

  44  

 

The purchase price for the January 2018 Notes is equal to the principal amount thereof. The January 2018 Notes have a term of two years from issuance, bear interest at the rate of five percent (5%) annum, which accrues and is payable to together with interest at maturity and are otherwise substantially similar in form and substance to the $2.1M Notes and the May 2017 Notes.

 

Use of Financing Proceeds

 

The proceeds from the offer and sale of the $2.1M Notes, the May 2017 Notes and the January 2018 Notes, are and will be used to fund the Company’s growth plan, including expansion of our chain of Kaya Shack™ Marijuana Superstores in Oregon, acquisition and development of our Lebanon, Oregon legal cannabis cultivation and manufacturing facility and the introduction of new Kaya Shack™ branded cannabis products.

 

Plan of Operations

 

Management believes that the proceeds from the offer and sale of the $2.1M Notes, the May 2017 Notes and the January 2018 notes, combined with existing and anticipated revenues from operations has alleviated the Company’s financial difficulties to a significant extent and will allow the Company to meet its anticipated working capital needs for a period of between Nine and Twelve months from the date of this Annual Report. However, there can be no assurance that management’s belief will be correct and that the Company will not sooner require additional financing to meet its working capital needs prior to achieving profitability or positive cash flow. We may not be successful in raising additional capital on commercially reasonable terms, if and when needed, in which case our business, financial condition, cash flows and results of operations may be materially and adversely affected.

Critical Accounting Estimates

 

The following are deemed to be the most significant accounting estimates affecting us and our results of operations:

 

Fair value of financial instruments

 

The Company follows the provisions of ASC 820. This Topic defines fair value, establishes a measurement framework and expands disclosures about fair value measurements. We apply these provisions to estimate the fair value of our financial instruments including cash, accounts payable and accrued expenses, and notes payable.

 

Income Taxes

 

The Company accounts for income taxes in accordance with ASC 740, Accounting for Income Taxes, as clarified by ASC 740-10, Accounting for Uncertainty in Income Taxes. Our deferred income taxes are determined based on the estimated future tax effects of differences between the financial statement and tax basis of assets and liabilities given the provisions of enacted tax laws. Deferred income tax provisions and benefits are based on changes to the assets or liabilities from year to year. In providing for deferred taxes, the Company considers tax regulations of the jurisdictions in which the Company operates, estimates of future taxable income, and available tax planning strategies. If tax regulations, operating results or the ability to implement tax-planning strategies vary, adjustments to the carrying value of deferred tax assets and liabilities may be required. Valuation allowances are recorded related to deferred tax assets based on the “more likely than not” criteria of ASC 740.

 

ASC 740-10 requires that the Company recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the “more-likely-than-not” threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.

  45  

 

 

Recently Issued Accounting Pronouncements

 

There are no recent accounting pronouncements issued by the Financial Accounting Standards Board (“ FASB ”), the American Institute of Certified Public Accountants (“ AICPA ”), and the SEC believed by management to have a material impact on the Company’s present or future financial statements.

 

Off-Balance Sheet Arrangements

 

There are no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

 

ITEM 7A. Quantitative and Qualitative Disclosures about Market Risk.

 

Not applicable.

 

ITEM 8. Financial Statements and Supplementary Data.

 

 See the Index of Consolidated Financial Statements on page F-1 below

 

 

ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

None.

 

Disclosure controls and procedures

 

Under the direction of our Principal Executive Officer and Principal Financial Officer, we evaluated our disclosure controls and procedures as of December 31, 2017. Our Principal Executive Officer and Principal Financial Officer concluded that our disclosure controls and procedures were not effective as of December 31, 2017.

 

We maintain disclosure controls and procedures that are designed to ensure that the information required to be disclosed in the reports that we file under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Principal Executive Officer and Principal Financial Officer, as appropriate, to allow timely decisions regarding required disclosures.  In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can only provide reasonable assurance of achieving the desired control objectives, and in reaching a reasonable level of assurance, management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

 

As required by SEC Rule 13a-15(b), we carried out an evaluation, under the supervision and with the participation of our management, including our Principal Executive Officer and Principal Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of our fourth fiscal quarter covered by this report. Based on the foregoing, our Principal Executive Officer and Principal Financial Officer President concluded that our disclosure controls and procedures were not effective.  It should be noted that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions, regardless of how remote.

 

Management’s Report on Internal Control Over Financial Reporting

 

Our management of is responsible for establishing and maintaining adequate internal control over financial reporting.  Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, the Company’s Principal Executive Officer and Principal Financial Officer and effected by the Company’s 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:

  46  

 

 

Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company;

 

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

 

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.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect 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.

 

The Company’s Principal Executive Officer and Principal Financial Officer assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2017.  In making this assessment, the Company’s Principal Executive Officer and Principal Financial Officer used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“ COSO ”) in Internal Control-Integrated Framework.  The COSO framework is based upon five integrated components of control: control environment, risk assessment, control activities, information and communications and ongoing monitoring.

 

Based on the assessment performed, the company’s Principal Executive Officer and Principal Financial Officer has concluded that the Company’s internal control over financial reporting, as of December 31, 2017, is not effective to provide reasonable assurance regarding the reliability of its financial reporting and the preparation of its financial statements in accordance with generally accepted accounting principles.  Further, the Company’s Principal Executive Officer and Principal Financial Officer has identified material weaknesses in internal control over financial reporting as of December 31, 2017.

 

Based on an evaluation, the Company’s Principal Executive Officer and Principal Financial Officer has concluded that the Company’s disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act were not effective as of December 31, 2017 (the “ Evaluation Date ”), to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms and (ii) accumulated and communicated to the Company’s Principal Executive Officer and Principal Financial Officer, as appropriate to allow timely decisions regarding required disclosure.  Each of the following is deemed a material weakness in our internal control over financial reporting:

 

We do not have an audit committee.  While we are not currently obligated to have an audit committee,i ncluding a member who is an “audit committee financial expert,” as defined in Item 407 of Regulation S-K, under applicable regulations or listing standards; however, it is management’s view that such a committee is an important internal control over financial reporting, the lack of which may result in ineffective oversight in the establishment and monitoring of internal controls and procedures.

 

We did not maintain proper segregation of duties for the preparation of our financial statements.  W e currently have only one officer overseeing all transactions.  This has resulted in several deficiencies, including the lack of control over preparation of financial statements and proper application of accounting policies

 

  47  

 

The Company’s Principal Executive Officer and Principal Financial Officer believes that the material weaknesses set forth in the two items above did not have an effect on our financial results. However, the Company’s Principal Executive Officer and Principal Financial Officer believes that the lack of a functioning audit committee results in ineffective oversight in the establishment and monitoring of required internal controls and financial procedures, which could result in a material misstatement in our consolidated financial statements in future periods.

 

 

Changes in Internal Control over Financial Reporting

 

There was no change in our internal controls or in other factors that could affect these controls during the fourth quarter of the year ended December 31, 2017 that have materially or are reasonably likely to materially affect, our internal controls over financial reporting.

 

 

  ITEM 9B. Other Information

 

None

 

PART III

 

ITEM 10. Directors, Executive Officers and Corporate Governance.  

 

Directors and Executive Officers

 

Our directors and executive officers and their respective ages and titles are as follows:

 

Name Age Position(s) and Office(s) Held
Craig Frank 58

Chairman of the Board, President, Chief Executive Officer,

Acting Chief Financial Officer, Director

Carrie Schwarz 58 Director
Jordi Arimany   41 Director

 

Set forth below is a brief description of the background and business experience of our directors and executive officers.

 

 

Craig Frank became Chairman of the Board, President, Chief Executive Officer and a Director of the Company in January 2010. He assumed the appointed position of acting Chief Financial Officer in 2012. For the past 15 years, Mr. Frank has served as Chairman and CEO of Tudog International Consulting, a Florida-based company with business advisory, business development, market research, training, and merchant banking divisions. During his tenure at Tudog, Mr. Frank has worked with more than 200 companies from 19 countries. In addition, in such capacity, he developed the business plan for a biofuels company based in Central America, and is the co-founder of the Company’s predecessor, which we acquired in January 2010. He remains Tudog’s Chairman. Mr. Frank is a widely published author with articles on business matters featured in magazines and newsletters internationally, including publications of the Guatemala America Chamber of Commerce, the Israel Export Institute, the Romania Chamber of Commerce, and the World Association of Small and Medium Sized Enterprises. He is also an in-demand speaker at international conferences, including the Florida Sterling Council, the International Project Management Association, The Central American Center for Entrepreneurship, the Israel Center for Entrepreneurial Studies, and the Pino Center for Entrepreneurship at Florida International University. The Company believes that Mr. Frank’s consulting and entrepreneurial experience brings significant value to our management team.

  48  

 

 

Carrie Schwarz, who became a director in January 2010, has served as the Managing Partner of Athena Assets Management, a New York based hedge fund specializing in investments of special situation publicly traded securities since 2002. Ms. Schwarz has also been a Portfolio Manager at Metropolitan Capital, a New York based hedge fund. From 1999 to 2001 Ms. Schwarz was an executive at Bank of America Securities, where she built and managed a proprietary Risk Arbitrage Department. From 1991 to 1999 she founded and managed Athena Investment Partners, L.P., a hedge fund that focused on special situations. Prior thereto, she was with American Porters, L.P., a hedge fund that focused on risk arbitrage, which she joined as a junior analyst in 1995 and ultimately rose to become Head of Research and a partner. Ms. Schwarz serves on the board of directors of the American Friends of the Weizmann Institute of Science. We believe that her financial industry experience makes her a valuable member of the board of directors.

 

Jordi Arimany , who became a director in January 2010, has served as Vice President of Business Development of First Diversity Management Group, a Cleveland, Ohio-based human capital services company since 2008. From 2007 to 2008 he served as Associate to the Executive Vice President of Bunco Industrial, in Guatemala City, one of the largest private banks in Central America. From 2000 to 2007 he was National Business Development Manager to LAFISE (Latin American Financial Services), a Miami, Florida-based financial services firm operating throughout Latin America. Mr. Arimany has a Bachelor’s degree in Business Administration from John Brown University and a Master’s degree in Business Administration from Regent University. We believe that his Latin American financial and business experience makes him a valuable member of the board of directors.

 

Terms of Office

 

Our directors are appointed for a one-year term to hold office until the next annual meeting of our stockholders and until a successor is appointed and qualified, or until their removal, resignation, or death. Executive officers serve at the pleasure of the board of directors.

 

Board Committees

 

Two of our three directors are “ independent ” within the scope of the rules adopted by the NASDAQ Stock Market and the SEC: Ms. Schwarz and Mr. Arimany. However, our board of directors does not currently have an audit committee, a compensation committee, or a corporate governance committee. We plan to establish such committees in the near future.

 

Board of Directors Role in Risk Oversight

 

Members of the board of directors have periodic meetings with management and the Company’s independent auditors to perform risk oversight with respect to the Company’s internal control processes. Our board is currently comprised of a majority of independent directors. The Company believes that the board’s role in risk oversight does not materially affect the leadership structure of the Company.

 

Code of Ethics

 

We adopted a Code of Business Conduct and Ethics (“ Ethics Code ”) on February 28, 2013 that includes provisions ranging from conflicts of interest to compliance with all applicable laws and regulations. All officers, directors and employees are bound by this Ethics Code, violations of which may be reported to any independent member of the board of directors.

 

ITEM 11.  Executive Compensation

 

Summary Compensation Table

  49  

 

 

The table below summarizes all compensation awarded to, earned by, or paid to our CEO and acting CFO, who is our sole executive officer, for 2017.

 

SUMMARY COMPENSATION TABLE

 

 

INSERT TABLE HERE

 

Name and principal position   Year     Salary ($)     Bonus ($)     Stock Awards (#)     Option Awards  (#)     Non-Equity Incentive Plan Compensation($)     Nonqualified Deferred Compensation Earnings ($)     All Other Compensation ($)     Total ($)  

Craig Frank 

CEO/Acting CFO

 

  2017     $300,000     $  50,000     2,000,000 (1)                             $350,000 (1)  
    2016     $300,000                                         $300,000  

 

 

 (1)   Represents 2,000,000 “ restricted ” shares of our common stock valued at $80,000.

 

Mr. Frank's compensation was paid to Tudog International Consulting, Inc., of which Mr. Frank is the Chairman and a principal.

Employment and Consulting Agreements

 

The Company is currently not a party to any employment agreement with its executive officers. The Company has consulting agreements with Tudog International Consulting, of which firm Mr. Frank is Chairman and a Principal, for the services of Mr. Frank as CEO and acting CFO.

 

Outstanding Equity Awards at Fiscal Year-End

 

None.

 

Compensation of Directors Table

 

The table below summarizes all compensation paid to our nonemployee directors for 2017.

 

Name   Fees Earned or Paid in Cash   Stock Award   Option Awards   Nonequity Incentive Plan Compensation   Nonequity Deferred Compensation Earnings   All Other Compensations Total
 Carrie Schwarz     100,000 (1)           —  100,000 
 Jordi Arimany     100,000 (1)           —  100,000 

 

 

 (1) Represents restricted shares of common stock granted. 

 

Narrative Disclosure to the Director Compensation Table

 

Our nonemployee directors are compensated with common stock. All such directors receive 100,000 “restricted” shares of common stock annually for their service.

 

2011 Incentive Stock Plan

 

Our 2011 Incentive Stock Plan, as amended (the “ Plan ”) provides for equity incentives to be granted to our employees, executive officers or directors or to key advisers or consultants. Equity incentives may be in the form of stock options with an exercise price not less than the fair market value of the underlying shares as determined pursuant to the Plan, restricted stock awards, other stock based awards, or any combination of the foregoing. The Plan is administered by the board of directors.

 

A total of 20,000,000 shares of KAYS common stock has been reserved for issuance under the Plan. As of December 31, 2017. awards covering 17,225,000 shares have been issued under the Plan and 2,775,000 shares of common stock were available for issuance under the Plan.

  50  

 

 

ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The following table sets forth the beneficial ownership of our common stock by each director and executive officer, by all directors and executives officers as a group and by each other person known by us to beneficially own 5% or more of our common stock as of the date of this Annual Report. The address of each such person is c/o the Company 305 S. Andrews Ave, Suite 209, Fort Lauderdale, FL, 33301.

 

 

 

Name and Address of Beneficial Owner  

Number of Shares of

Common Stock

  Percentage of Shares  

  Directors and executive officers:

 

         
 Craig Frank (1)(2)   26,965,129    16.7%  
 Carrie Schwarz   300,000    *
 Jordi Arimany   637,500    * *
All directors and executive officers, as a group (three persons) (1)(2)   27,902,629    17.32%  

 

Other 5% or greater stockholders:

 

         
Ilan Sarid (3)   44,661,818   24.4%  

* Less than 1%

 

1. includes shares beneficially owned by Tudog International Consulting and Drora Frank.

 

 

2. Includes 21,664,985 shares of common stock issuable upon conversion of 50,000 shares of our Series C Convertible Preferred Stock held by Mr. Frank, which shares vote on an “as converted” basis.

 

3. Includes 21,664,985 shares of our common stock issuable upon conversion of 50,000 shares of our Series C Convertible Preferred Stock, which are issuable upon conversion of certain convertible promissory notes of the Company held by Mr. Sarid

 

 

The persons named above have full voting and investment power with respect to the shares indicated. Under the rules of the SEC, a person (or group of persons) is deemed to be a “beneficial owner” of a security if he or she, directly or indirectly, has or shares the power to vote or to direct the voting of such security, or the power to dispose of or to direct the disposition of such security. Accordingly, more than one person may be deemed to be a beneficial owner of the same security. A person is also deemed to be a beneficial owner of any security, which that person has the right to acquire within 60 days, such as options or warrants to purchase our common stock.

  51  

 

  

Securities Authorized for Issuance under Equity Compensation Plans 

 

Plan category   Number of securities to be issued upon exercise of outstanding options, warrants and rights   Weighted-average  exercise price of outstanding options, warrants and rights   Number of securities remaining available for future insurance under equity compensations plans (excluding securities reflected in column (a))
Equity compensation plans approved by security holders   17,225,000 shares (1)   n/a   2,775,000 shares (1)
             
Equity compensation plans not approved by security holders   0 shares   n/a   0 shares
             

 

(1) Represents shares of common stock issued or reserved for issuance under our 2011 Incentive Stock Plan.

 

 I TEM 13. Certain Relationships and Related Transactions, and Director Independence.

 

  Related Party Transactions

 

At December 31, 2014, the Company was indebted to an affiliated shareholder of the Company for $840,955, which consisted of $737,100 principal and $103, 895 accrued interest, with interest accruing at 10%. On January 2, 2014, the Company entered into a Debt Modification Agreement whereby the total amount of the debt was reduced to $750,000 and no interest accrued until December 31, 2015. $500,000 of the debt is convertible into 50,000 Series C Convertible Preferred Shares of KAYS. The remaining $250,000 is not convertible.

 

On December 31, 2015, the Company entered into an agreement to extend the debt until December 31, 2017 with no additional interest for the extension period. On January 1, 2018 the Company entered into an agreement to further extend the debt until December 31, 2021 with no additional interest for the extension period.

 

Review, Approval and Ratification of Related Party Transactions

 

Given our small size and limited financial resources, we have not adopted formal policies and procedures for the review, approval or ratification of transactions with our executive officers, directors and significant shareholders. However, all matters relating to the compensation and stock awards for such persons were approved by the board of directors prior to implementation.

 

ITEM 14. Principal Accountant Fees and Services.

 

Audit Fees

 

The following is a summary of the fees billed to us by L+L CPAS, P.A. for professional services rendered for the years ended December 31, 2017 and 2016, respectively.

 

    2017         2016  
Audit fees   $52,500         $46,500  
Audit-related fees             —    
Tax fees           —    

All other 

fees

          —    
    $52,500         $46,500  

 

  52  

 

Audit fees consist of billings for the audit of the Company’s consolidated financial statements included in our Annual Reports on Form 10-K and reviews of the consolidated financial statements included in the Company’s Quarterly Reports on Form 10-Q.

 

Audit-related fees include billing related to a Registration Statement on Form S-8 during 2016.

 

The Company does not have an Audit Committee. It is the Company’s policy to have its CEO and CFO preapprove all audit and permissible non-audit services provided by the independent public accountants, subject to approval by the Board of Directors.

 

These services may include audit, audit-related, tax and other services. Pre-approval is generally for up to one year, is detailed as to the particular service or category of services, and is generally subject to a specific budget. Unless there are significant variations from the pre-approved services and fees, the independent public accountants and management generally are not required to formally report to the Board of Directors regarding actual services and related fees.

  53  

 

 

 

PART IV

 

Item 15. Exhibits and Financial Statement Schedules.

 

a)   The following documents are filed as part of this Annual Report:

 

(1)   Financial Statements – The following Consolidated Financial Statements of the Company are contained in Item 8 of this Annual Report:

 

  Report of Independent Registered Public Accountants

 

     Consolidated Balance Sheets at December 31, 2017 and 2016

 

  Consolidated Statements of Operations for the years ended December 31, 2017 and 2016

 

  Consolidated Statements of Stockholders’ Deficit for the years ended December 31, 2017 and 2016

 

  Consolidated Statements of Cash Flows for the years ended December 31, 2017 and 2016

 

  Notes to the Consolidated Financial Statements.

 

(2)   Financial Statement Schedules were omitted, as they are not required or are not applicable, or the required information is included in the Consolidated Financial Statements.

 

(3)   Exhibits – The following exhibits are filed with this report or are incorporated herein by reference to a prior filing, in accordance with Rule 12b-32 under the Exchange Act:

 

  54  

 

Exhibit No. Description of Exhibit  

 

3.1 Certificate of Incorporation, as amended (1)(2)
     

 

3.2   Bylaws, as amended (1)
     

 

 

10.1  

Share Exchange Agreement dated February 3, 2010 by and among Netspace International, Inc. and the shareholders of Alternative Fuels Americas, Inc. (1)

 

10.2   2011 Incentive Stock Plan, as amended (1) +

 

10.6   Form of 8% Convertible Promissory Note (1)

 

10.5   Consulting Agreement between Registrant and Tudog International Consulting, Inc . (1) +

 

10.6   Office Lease for premises located at 305 South Andrews Avenue, Suite 209, Fort Lauderdale, FL 33301 (3)

 

10.9   Letter Agreement effective December 1, 2011 between Registrant and Ilan Sarid (1)

 

10.10   Amendment to Consulting Agreement between Registrant and Tudog International Consulting, Inc. (1) +

 

10.11   Amendment to Consulting Agreement between Registration and The Tudog Group (3) +

 

 

21.1   Subsidiaries of Registrant (4)

 

23.1   Consent of L &L CPAS, P.A . (4)

 

31.1  

Certification of the Chief Executive Officer and Chief Financial Officer pursuant to Rule 130-14 of the Securities Exchange Act of 1934, as amended, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (4)

 

 

 

32.1   >Certification of the Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002 (4)

 

 

(1)   Filed as an Exhibit to the Company’s Registration Statement on Form S-1, as amended (File No. 333-177532) and incorporated herein by reference.

(2)

 

 

Amendments to the Certificate of Incorporation are filed as Exhibits to the Company’s Current Reports on Form 8-K dated April 23, 2015 and March 22, 2017 and are incorporated herein by reference.

 

 

 

(3)   Filed as an Exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2013 and incorporated herein by reference.

 

(4)   Filed herewith.

 

+ Management compensation arrangement.

 

 

  55  

 

SIGNATURES

 

In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated: April 17, 2018

 

  KAYA HOLDINGS, INC.
     
  By: /s/ Craig Frank
    Craig Frank
   

Chairman of the Board, President, Chief Executive Officer, Acting Chief Financial Officer

(Principal Executive, Financial and Accounting Officer

 

In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, this Annual Report on Form 10K has been signed below by the following persons on behalf of the Company and in the capacities and on the dates indicated.

 

 

Signature  Title Date
     
     
/ s/ Craig Frank Chairman of the Board, President, Chief Executive Officer,  
Craig Frank

Acting Chief Financial Officer and Director (Principal Executive,

Financial and Accounting Officer)

April 17, 2018
     
     
     
/s/ Carrie Schwarz Director April 17, 2018
Carrie Schwarz    
     
     
/s/ Jordi Arimany Director April 17, 2018 
Jordi Arimany    

 

 

 

 

 

  56  

 

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

  Page
   
Report of Independent Registered Public Accounting Firm F-2
   
Consolidated Balance Sheets at December 31, 2017 and 2016  F-3
   
Consolidated Statements of Operations for the Years Ended December 31, 2017 and 2016  F-5
   
Consolidated Statements of Changes in Net Capital Deficiency for the Years Ended December 31, 2017 and 2016 F-6
   
Consolidated Statements of Cash Flows for the Years Ended December 31, 2017 and 2016 F-8
   
Notes to Consolidated Financial Statements F- 9

 

  57  

 

 

19720 Jetton Road, 3rd Floor

Cornelius, NC 28031

Tel: 704-897-8336

Fax: 704-919-5089

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and

Kaya Holdings, Inc. and Subsidiaries

 

We have audited the accompanying consolidated balance sheets of Kaya Holdings, Inc. and Subsidiaries (“the Company”) as of December 31, 2017 and 2016 and the related consolidated statements of operations, stockholders’ deficit, and consolidated cash flows for the two years ended. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of their internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, 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. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by the management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2017 and 2016, and the results of its operations, changes in stockholders’ deficit and cash flows for the two years then ended in conformity with accounting principles generally accepted in the United States of America.

 

The accompanying financial statements have been prepared assuming the Company will continue as a going concern. The Company has suffered recurring operating losses, has an accumulated stockholders’ deficit, has negative working capital, has had minimal revenues from operations, and has yet to generate an internal cash flow that raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

/s/ L&L CPAS, PA

L&L CPAS, PA

Certified Public Accountants

Cornelius, NC

The United States of America

April 17, 2018

 

 

  F- 2  

 

Kaya Holdings, Inc. and Subsidiaries

Condensed Consolidated Balance Sheet

December 31, 2017 and 2016

 

ASSETS
    (Audited)   (Audited)
    December 31, 2017   December 31, 2016
CURRENT ASSETS:                
Cash and equivalents   $ 318,462       306,884  
Inventory-Net of Allowance     118,296       83,997  
Prepaid Expenses     9,094       4,500  
Total Current Assets     445,851       395,381  
                 
OTHER ASSETS:                
Property and equipment, net     897,565       192,964  
Deposits     98,497       122,024  
Total Other Assets     996,062       314,988  
                 
Total Assets     1,441,913       710,369  
                 
                 
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
                 
CURRENT LIABILITIES:                
Accounts payable and accrued expense     464,462       506,601  
Accounts payable and accrued expense-related parties     8,923       18,586  
Accrued interest     302,341       142,853  
Notes Payable     144,782       —    
Notes Payable-Related Party     250,000       —    
Convertible Note Payable-related party     500,000       —    
Convertible Notes Payable-net of discount     275,000       721,665  
Derivative liabilities     17,316,783       8,423,354  
Total Current Liabilities     19,262,290       9,813,059  
                 
LONG TERM LIABILITIES:                
Convertible Note Payable-related party-Net of Discount     —         298,908  
Derivative liabilities     13,026,826       10,922,994  
Convertible Note Payable-Net of Discount  (2,620,245)     1,555,206       147,833  
Notes Payable     —         267,635  
Notes Payable-Related Party     —         250,000  
Total Long Term Liabilities     14,582,032       11,887,370  
                 
Total Liabilities     33,844,322       21,700,429  
                 
STOCKHOLDERS' EQUITY (DEFICIT):                
Convertible Preferred Stock, Series C, par value $.001; 10,000,000 shares authorized;                
49,900 and 49,900 issued and outstanding at December 31, 2017     50       50  
and December 31, 2016                
Common stock , par value $.001;  500,000,000 shares authorized;                
138,993,087 shares issued as of December 31, 2017 and                
  117,076,795 shares issued as of December 31, 2016     138,993       117,076  
Additional paid in capital     12,811,671       9,035,740  
Subscriptions payable     152,796       272,400  
Accumulated Deficit     (44,672,209 )     (29,790,416 )
Non-controlling Interest     (833,710 )     (624,910 )
Net Stockholders' Equity/(Deficit)     (32,402,409 )     (20,990,060 )
Total Liabilities and Stockholders' Equity/(Deficit)   $ 1,441,913     $ 710,369  

           

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

  F- 3  

 

 

Kaya Holdings, Inc. and Subsidiaries

Condensed Consolidated Statements of Operations

(Audited) 

       

    For the Year   For the Year
    Ended   Ended
    December 31, 2017   December 31, 2016
         
Net Sales   $ 966,382     $ 952,852  
                 
Cost of Sales     394,424       553,290  
                 
Gross Profit     571,958       399,562  
                 
Operating Expenses:                
Professional Fees     809,809       1,352,543  
Salaries and Wages     436,163       297,760  
General and Administrative     1,313,254       504,617  
Total Operating Expenses     2,559,225       2,154,920  
                 
Operating Loss     (1,987,267 )     (1,755,358 )
                 
Other Income(expense):                
Interest Expense     (354,374 )     (286,383 )
Legal Settlement     (247,500 )     —    
Amortization of Debt discount     (2,267,026 )     (1,638,984 )
Derivative Liabilities Expense     (18,377,623 )     (2,220,663 )
Gain(Loss) on Extinguishment of Debt     (67,442 )     —    
Loss on disposal of fixed assets     (10,846 )     —    
Change in Derivative Liabilities Expense     8,221,485       (14,302,811 )
Total Other Income(Expense)     (13,103,326 )     (18,448,841 )
                 
Net income (loss) before Income Taxes     (15,090,593 )     (20,204,199 )
                 
Provision for Income Taxes                
                 
Net income (loss)     (15,090,593 )     (20,204,199 )
                 
Net (Loss) attributed to non-controlling interest     (208,800 )     (354,937 )
                 
Net income (loss) attributed to Kaya Holdings, Inc.     (14,881,793 )     (19,849,262 )
                 
Basic and diluted net loss per common share   $ (0.12 )   $ (0.20 )
                 
Weighted average number of common shares outstanding     127,972,813       102,076,923  

 

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

  F- 4  

 

Kaya Holdings, Inc. and Subsidiaries

Consolidated Statement of Cashflows

 

    Year Ended   Year Ended
    December 31, 2017   December 31, 2016
OPERATING ACTIVITIES:                
Net Income/(Loss)   $ (15,090,593 )     (20,204,199 )
Adjustments to reconcile net loss to net cash used in operating activities:                
Net loss attributable to non-controlling interest     (208,800 )     (354,937 )
Depreciation     68,166       87,585  
Imputed Interest     30,000       90,000  
Loss (Gain) on Extinguishment of Debt     67,442       —    
Loss on disposal of fixed assets     10,846          
Derivative Expense     18,377,623       2,220,663  
Change in derivative liabilities     (8,221,485 )     14,302,811  
Amortization of debt discount     2,267,026       1,638,984  
Stock issued for services     127,010       684,750  
Stock issued for interest     52,536       9,000  
Changes in operating assets and liabilities:                
Prepaid Expense     (4,594 )     6,000  
Inventory     (34,299 )     (3,340 )
Deposits     23,527       —    
Other assets     0       (97,817 )
Accrued Interest     342,300       233,290  
Accounts payable and accrued expenses     (20,951 )     297,839  
                 
        Net cash used in operating activities     (2,214,245 )     (1,089,371 )
                 
INVESTING ACTIVITIES:                
Purchase of property and equipment     (749,812 )     (54,885 )
Net cash used in investing activities     (749,812 )     (54,885 )
                 
FINANCING ACTIVITIES:                
Proceeds from Convertible debt     3,150,000       925,000  
Proceeds from Notes Payable     80,000       150,000  
Payments on Note Payable     (254,366 )     (73,210 )
Proceeds from sales of common stock     —         110,000  
        Net cash provided by (used in) financing activities     2,975,634       1,111,790  
                 
NET INCREASE IN CASH     11,578       (32,466 )
                 
CASH BEGINNING BALANCE     306,884       123,907  
                 
CASH ENDING BALANCE   $ 318,462       306,884  
                 
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:                
Taxes paid     —         —    
Interest paid     17,166       24,686  
                 
NON-CASH TRANSACTIONS AFFECTING OPERATING, INVESTING                
   AND FINANCING ACTIVITIES:                
Value of common shares issued as payment of debt     —         361,428  
Value of common shares issued as payment of debt and interest     560,254       —    
Value of common shares issues as payment of interest     52,536       9,000  

 

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

  F- 5  

 

 

Kaya Holdings, Inc. and Subsidiaries

Statement of Stockholder's Equity

(Audited)

 

    Preferred       Common Stock   Additional Paid   Subscribed shares not   Accumulated   Non-controlling   Total Stockholders'
    Shares   Amount   Shares   Amount   in Capital   issued   Deficit   Interest   Equity (Deficit)
Balance at December 31, 2015     55,120       55       88,855,991       88,856       4,755,418       410,510       (9,941,154 )     (269,973 )     (4,956,288 )
Cancel Pref Shares     (2,454 )     (2 )     —         —         2               —                 —    
Pref Shares Converted     (2,766 )     (3 )     1,200,249       1,200       (1,197 )             —         —         —    
Warrants issued                                     101,667                               101,667  
 Imputed Interest                                     90,000                               90,000  
Common Stock issued for prior year services                     2,535,000       2,535       215,475       (218,010 )                        
Common Stock for services issued                     9,525,000       9,525       675,225       —                         684,750  
Common Stock to be issued for services                                             53,500                       53,500  
Common Stock for cash                     2,422,222       2,422       107,578       —                         110,000  
Common stock issued for prior year cash                     2,322,222       2,322       102,678       (105,000 )                     —    
Common Stock to be issued-conversion of convertible notes                     —         —         1,039,226       131,400                       1,170,626  
Common Stock for debt conversion and interest                     10,216,111       10,216       1,949,667       —                         1,959,883  
Net Loss for the year ended December 31, 2016     —         —         —         —         —         —         (19,849,262 )     (354,937 )     (20,204,199 )
Balance at December 31, 2016     49,900       50       117,076,795       117,076       9,035,740       272,400       (29,790,416 )     (624,910 )     (20,990,060 )
reclassified dervative liabilities to apic                                     2,960,979                               2,960,979  
Imputed Interest                                     30,000                               30,000  
Common Stock for debt conversion and interest                     21,266,292       21,266       616,222       (77,234 )     —         —         560,254  
Common Stock for services issued                     650,000       650       168,730       (53,500 )     —         —         115,880  
Common Stock to be issued for services                     —         —         —         11,130       —         —         11,130  
Net Loss of the year ended December 31, 2017                                                     (14,881,793 )     (208,800 )     (15,090,593 )
Balance at December 31, 2017     49,900       50       138,993,087       138,993       12,811,671       152,796       (44,672,209 )     (833,710 )     (32,402,409 )

 

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

  F- 6  

 

NOTE 1 – ORGANIZATION AND NATURE OF THE BUSINESS

 

Organization

 

Kaya Holdings, Inc. FKA (Alternative Fuels Americas, Inc.) is a holding company. The Company was incorporated in 1993 and has engaged in a number of businesses. Its name was changed on May 11, 2007 to NetSpace International Holdings, Inc. (a Delaware corporation) (“NetSpace”). NetSpace acquired 100% of Alternative Fuels Americas, Inc. (a Florida corporation) in January 2010 in a stock-for-member interest transaction and issued 6,567,247 shares of common stock and 100,000 shares of Series C convertible preferred stock to existing shareholders. Certificate of Amendment to the Certificate of Incorporation was filed in October 2010 changing the Company’s name from NetSpace International Holdings, Inc. to Alternative Fuels Americas, Inc. (a Delaware corporation). Certificate of Amendment to the Certificate of Incorporation was filed in March 2015 changing the Company’s name from Alternative Fuels Americas, Inc. (a Delaware corporation) to Kaya Holdings, Inc.

 

The Company has three subsidiaries, Alternative Fuels Americas, Inc, a Florida corporation, which is wholly-owned, Marijuana Holdings Americas, Inc., a Florida corporation (“MJAI”), which is majority-owned and 34225 Kowitz Road, LLC, an Oregon limited liability company which holds the Company’s recently acquired 26 acre property in Lebanon, Oregon on which it plans to develop a legal cannabis cultivation and manufacturing facility. MJAI develops and operates the Company’s legal cannabis retail operations in Oregon through controlling ownership interests in four Oregon limited liabilities companies: MJAI Oregon 1 LLC, MJAI Oregon 2 LLC, MJAI Oregon 3 LLC and MJAI Oregon 4 LLC.

 

Nature of the Business  

 

In January 2014, KAYS incorporated MJAI, a wholly-owned subsidiary, to focus on opportunities in the legal recreational and medical marijuana in the United States. MJAI has concentrated its efforts in Oregon, where through controlled Oregon limited liability companies, it initially secured licenses to operate a medical marijuana dispensary (an “MMD”) and following legalization of recreational cannabis use in Oregon, has secured licenses to operate three retail outlets (with the license application for a fourth outlet pending) and purchased 26 acres for development as a legal cannabis cultivation and manufacturing facility. The Company has developed the Kaya Shack™ brand for its retail operations.

 

On July 3, 2014 opened its first Kaya Shack™ MMD in Portland, Oregon.  In April 2015, KAYS commenced its own medical marijuana grow operations for the cultivation and harvesting of legal marijuana thereby becoming the first publicly traded U.S. company to own a majority interest in a vertically integrated legal marijuana enterprise in the United States. In October 2015, concurrent with Oregon commencing legal sales of recreational marijuana through MMDs, KAYS opened its second retail outlet in Salem, Oregon, the Kaya Shack™ Marijuana Superstore. During 2015, the Company also consolidated its grow operations and manufacturing operations into a single facility in Portland, Oregon.

 

In 2016, Oregon began the process to transition legal marijuana sales from Oregon Health Authority (“OHA”) licensed MMDs and grow operations to Oregon Liquor Control Commission (“OLCC”) licensed recreational marijuana retailers and producer and processing facilities. Effective January 1, 2017, all retailers of recreational marijuana were required to have a recreational marijuana sales license issued by the OLLC for each retail outlet operated.

  F- 7  

 

 

In 2016 the Company applied for OLLC licenses for its two initial Kaya Shack™ retail outlets (Portland, Oregon and South Salem, Oregon), and also submitted license applications for its two new locations under construction and development at that time.

 

In late December 2016, we received our OLCC recreational license for the South Salem Kaya Shack™ Marijuana Superstore (Kaya Shack™ OLCC Marijuana Retailer License #1) and recreational and medical sales continued without interruption from 2016 through the present at that location.

 

 On March 21, 2017, we received our North Salem Kaya Shack™ outlet (Kaya Shack™ OLCC Marijuana Retailer License #2) a 2,600-square foot Kaya Shack™ Marijuana Superstore in North Salem, Oregon, whereupon the location opened for business with both recreational and medical sales.

 

On May 2, 2017, we received our OLCC recreational license for our Portland Kaya Shack™ outlet (Kaya Shack™ OLCC Marijuana Retailer License #3) after a delay of approximately four months. During that period, we were limited to solely medical sales at the Portland location. Upon receipt of Kaya Shack™ OLCC Marijuana Retailer License #3, recreational sales recommenced at that location. Our OLCC License for the Central Salem Kaya Shack™ Marijuana Superstore (Kaya Shack™ OLCC Marijuana Retailer License #4) has been filed and is pending completion, inspection and final licensing.

 

During August of 2017, we purchased 26 acres in Lebanon, Oregon, for development as a legal cannabis cultivation and manufacturing facility. The company is in the process of planning and permitting.

 

Our OLCC License for the Central Salem Kaya Shack™ Marijuana Superstore (Kaya Shack™ OLCC Marijuana Retailer License #4) has been issued as of March 2018.

 

 

NOTE 2 - LIQUIDITY AND GOING CONCERN

 

The Company’s consolidated financial statements as of and for the year ended December 31, 2017 have been prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities and commitments in the normal course of business. The Company incurred a net loss of $14,881,793 for the year ended December 31, 2017 and a net loss of $19,849,262 for the year ended December 31, 2016. At December 31, 2017 the Company has a working capital deficiency of $1,499,656 and is totally dependent on its ability to raise capital. The Company has a plan of operations and acknowledges that its plan of operations may not result in generating positive working capital in the near future. Even though management believes that it will be able to successfully execute its business plan, which includes third-party financing and capital issuance, and meet the Company’s future liquidity needs, there can be no assurances in that regard. These matters raise substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this material uncertainty. Management recognizes that the Company must generate additional funds to successfully develop its operations and activities. Management plans include:

  F- 8  

 

 

  the sale of additional equity and debt securities,
  alliances and/or partnerships with entities interested in and having the resources to support the further development of the Company’s business plan,
  business transactions to assure continuation of the Company’s development and operations,
  development of a unified brand and the pursuit of licenses to operate recreational and medical marijuana facilities under the branded name.

 

NOTE 3 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND BASIS OF PRESENTATION

 

Basis of Presentation

 

The accompanying consolidated financial statements of the Company have been prepared in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP) under the accrual basis of accounting.

 

Use of Estimates

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes.

 

Such estimates and assumptions impact both assets and liabilities, including but not limited to: net realizable value of accounts receivable and inventory, estimated useful lives and potential impairment of property and equipment, the valuation of intangible assets, estimate of fair value of share based payments and derivative liabilities, estimates of fair value of warrants issued and recorded as debt discount, estimates of tax liabilities and estimates of the probability and potential magnitude of contingent liabilities.

 

Making estimates requires management to exercise significant judgment. It is at least reasonably possible that the estimate of the effect of a condition, situation or set of circumstances that existed at the date of the financial statements, which management considered in formulating its estimate could change in the near term due to one or more future non-conforming events. Accordingly, actual results could differ significantly from estimates.

 

Risks and Uncertainties

 

The Company’s operations are subject to risk and uncertainties including financial, operational, regulatory and other risks including the potential risk of business failure.  

 

The Company has experienced, and in the future expects to continue to experience, variability in its sales and earnings.  The factors expected to contribute to this variability include, among others, (i) the uncertainty associated with the commercialization and ultimate success of the product, (ii) competition inherent at other locations where product is expected to be sold (iii) general economic conditions and (iv) the related volatility of prices pertaining to the cost of sales. 

  F- 9  

 

     

Fiscal Year

 

The Company’s fiscal year-end is December 31.

 

Principles of Consolidation

 

The consolidated financial statements include the accounts of Kaya Holdings, Inc. and its subsidiaries, Alternative Fuels Americas, Inc. (a Florida corporation), 34225 Kowitz Road, LLC (a Oregon LLC) and Marijuana Holdings Americas, Inc. (a Florida corporation) which is a majority owned subsidiary including all wholly owned LLC’s (MJAI Oregon 1 LLC, MJAI Oregon 2 LLC, MJAI Oregon 3 LLC, MJAI Oregon 4 LLC).  All inter-company accounts and transactions have been eliminated in consolidation.

 

Non-Controlling Interest

 

The company owns 55% of Marijuana Holdings Americas, Inc.

 

Cash and Cash Equivalents

 

Cash and cash equivalents are carried at cost and represent cash on hand, demand deposits placed with banks or other financial institutions and all highly liquid investments with an original maturity of three months or less. The Company had no cash equivalents

 

Inventory

 

Inventory consists of finished goods purchased, which are valued at the lower of cost or market value, with cost being determined on the first-in, first-out method.  The Company periodically reviews historical sales activity to determine potentially obsolete items and also evaluates the impact of any anticipated changes in future demand.  Total Value of Finished goods inventory as of December 31, 2017 is $118,296 and $83,994 as of December 31, 2016. No allowance as necessary as of December 31, 2017 and 2016.

 

Property and Equipment

 

Property and equipment is stated at cost, less accumulated depreciation and is reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable.  

 

Depreciation of property and equipment is provided utilizing the straight-line method over the estimated useful lives, ranging from 5-7 years of the respective assets. Expenditures for maintenance and repairs are charged to expense as incurred.

 

Upon sale or retirement of property and equipment, the related cost and accumulated depreciation are removed from the accounts and any gain or loss is reflected in the statements of operations.

  F- 10  

 

 

Long-lived assets

 

The Company reviews long-lived assets and certain identifiable intangibles held and used for possible impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. In evaluating the fair value and future benefits of its intangible assets, management performs an analysis of the anticipated undiscounted future net cash flow of the individual assets over the remaining amortization period. The Company recognizes an impairment loss if the carrying value of the asset exceeds the expected future cash flows.

 

Operating Leases

 

We lease our retail stores under non-cancellable operating leases. Most store leases include tenant allowances from landlords, rent escalation clauses and/or contingent rent provisions. We recognize rent expense on a straight-line basis over the lease term, excluding contingent rent, and record the difference between the amount charged to expense and the rent paid as a deferred rent liability.

 

Deferred Rent and Tenant Allowances

 

Deferred rent is recognized when a lease contains fixed rent escalations. We recognize the related rent expense on a straight-line basis starting from the date of possession and record the difference between the recognized rental expense and cash rent payable as deferred rent. Deferred rent also includes tenant allowances received from landlords in accordance with negotiated lease terms. The tenant allowances are amortized as a reduction to rent expense on a straight-line basis over the term of the lease starting at the date of possession.

 

 

Earnings Per Share

 

In accordance with ASC 260, Earnings per Share, the Company calculates basic earnings per share by dividing net income (loss) by the weighted average number of common shares outstanding during the period. Diluted earnings per share are computed if the Company has net income; otherwise it would be anti-dilutive, and would result from the conversion of a convertible note.

 

Income Taxes

 

The Company accounts for income taxes in accordance with ASC 740, Accounting for Income Taxes, as clarified by ASC 740-10, Accounting for Uncertainty in Income Taxes.  Under this method, deferred income taxes are determined based on the estimated future tax effects of differences between the financial statement and tax basis of assets and liabilities given the provisions of enacted tax laws. Deferred income tax provisions and benefits are based on changes to the assets or liabilities from year to year. In providing for deferred taxes, the Company considers tax regulations of the jurisdictions in which the Company operates, estimates of future taxable income, and available tax planning strategies. If tax regulations, operating results or the ability to implement tax-planning strategies vary, adjustments to the carrying value of deferred tax assets and liabilities may be required. Valuation allowances are recorded related to deferred tax assets based on the “more likely than not” criteria of ASC 740.

 

ASC 740-10 requires that the Company recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the “more-likely-than-not” threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.

  F- 11  

 

 

Fair Value of Financial Instruments

 

The Company measures assets and liabilities at fair value based on an expected exit price as defined by the authoritative guidance on fair value measurements, which represents the amount that would be received on the sale of an asset or paid to transfer a liability, as the case may be, in an orderly transaction between market participants. As such, fair value may be based on assumptions that market participants would use in pricing an asset or liability. The authoritative guidance on fair value measurements establishes a consistent framework for measuring fair value on either a recurring or nonrecurring basis whereby inputs, used in valuation techniques, are assigned a hierarchical level.

 

The following are the hierarchical levels of inputs to measure fair value:

 

 

Level 1 – Observable inputs that reflect quoted market prices in active markets

for identical assets or liabilities.

 

Level 2 - Inputs reflect quoted prices for identical assets or liabilities in markets

that are not active; quoted prices for similar assets or liabilities in active

markets; inputs other than quoted prices that are observable for the assets

or liabilities; or inputs that are derived principally from or corroborated by

observable market data by correlation or other means.

 

Level 3 – Unobservable inputs reflecting the Company’s assumptions

incorporated in valuation techniques used to determine fair value.

These assumptions are required to be consistent with market participant

assumptions that are reasonably available.

 

The carrying amounts of the Company’s financial assets and liabilities, such as cash, prepaid expenses, other current assets, accounts payable & accrued expenses, certain notes payable and notes payable – related party, approximate their fair values because of the short maturity of these instruments.

 

The Company accounts for its derivative liabilities, at fair value, on a recurring basis under level 3. See Note 7.

 

Embedded Conversion Features

 

The Company evaluates embedded conversion features within convertible debt under ASC 815 “Derivatives and Hedging” to determine whether the embedded conversion feature(s) should be bifurcated from the host instrument and accounted for as a derivative at fair value with changes in fair value recorded in earnings. If the conversion feature does not require derivative treatment under ASC 815, the instrument is evaluated under ASC 470-20 “Debt with Conversion and Other Options” for consideration of any beneficial conversion feature.

 

Derivative Financial Instruments

 

The Company does not use derivative instruments to hedge exposures to cash flow, market, or foreign currency risks. The Company evaluates all of it financial instruments, including stock purchase warrants, to determine if such instruments are derivatives or contain features that qualify as embedded derivatives.

 

For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported as charges or credits to income. For option-based simple derivative financial instruments, the Company uses the Binomial option-pricing model to value the derivative instruments at inception and subsequent valuation dates. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is re-assessed at the end of each reporting period.

  F- 12  

 

 

Beneficial Conversion Feature

 

For conventional convertible debt where the rate of conversion is below market value, the Company records a "beneficial conversion feature" ("BCF") and related debt discount.

 

When the Company records a BCF, the relative fair value of the BCF is recorded as a debt discount against the face amount of the respective debt instrument (offset to additional paid in capital) and amortized to interest expense over the life of the debt.

 

Debt Issue Costs and Debt Discount

 

The Company may record debt issue costs and/or debt discounts in connection with raising funds through the issuance of debt.  These costs may be paid in the form of cash, or equity (such as warrants). These costs are amortized to interest expense over the life of the debt. If a conversion of the underlying debt occurs, a proportionate share of the unamortized amounts is immediately expensed.

 

Original Issue Discount

 

For certain convertible debt issued, the Company may provide the debt holder with an original issue discount.  The original issue discount would be recorded to debt discount, reducing the face amount of the note and is amortized to interest expense over the life of the debt.

 

Extinguishments of Liabilities

 

The Company accounts for extinguishments of liabilities in accordance with ASC 860-10 (formerly SFAS 140) “Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities”. When the conditions are met for extinguishment accounting, the liabilities are derecognized and the gain or loss on the sale is recognized.

 

Stock-Based Compensation - Employees

 

The Company accounts for its stock-based compensation in which the Company obtains employee services in share-based payment transactions under the recognition and measurement principles of the fair value recognition provisions of section 718-10-30 of the FASB Accounting Standards Codification. Pursuant to paragraph 718-10-30-6 of the FASB Accounting Standards Codification, all transactions in which goods or services are the consideration received for the issuance of equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable.  

 

The measurement date used to determine the fair value of the equity instrument issued is the earlier of the date on which the performance is complete or the date on which it is probable that performance will occur.  

 

If the Company is a newly formed corporation or shares of the Company are thinly traded, the use of share prices established in the Company’s most recent private placement memorandum (based on sales to third parties) (“PPM”), or weekly or monthly price observations would generally be more appropriate than the use of daily price observations as such shares could be artificially inflated due to a larger spread between the bid and asked quotes and lack of consistent trading in the market.

 

The fair value of share options and similar instruments is estimated on the date of grant using a Binomial option-pricing valuation model.  The ranges of assumptions for inputs are as follows:

  F- 13  

 

 

  Expected term of share options and similar instruments: The expected life of options and similar instruments represents the period of time the option and/or warrant are expected to be outstanding. Pursuant to Paragraph 718-10-50-2(f)(2)(i) of the FASB Accounting Standards Codification the expected term of share options and similar instruments represents the period of time the options and similar instruments are expected to be outstanding taking into consideration of the contractual term of the instruments and employees’ expected exercise and post-vesting employment termination behavior into the fair value (or calculated value) of the instruments.  Pursuant to paragraph 718-10-S99-1, it may be appropriate to use the simplified method, i.e., expected term = ((vesting term + original contractual term) / 2), if (i) A company does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate expected term due to the limited period of time its equity shares have been publicly traded; (ii) A company significantly changes the terms of its share option grants or the types of employees that receive share option grants such that its historical exercise data may no longer provide a reasonable basis upon which to estimate expected term; or (iii) A company has or expects to have significant structural changes in its business such that its historical exercise data may no longer provide a reasonable basis upon which to estimate expected term. The Company uses the simplified method to calculate expected term of share options and similar instruments as the company does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate expected term.
  Expected volatility of the entity’s shares and the method used to estimate it.  Pursuant to ASC Paragraph 718-10-50-2(f)(2)(ii) a thinly-traded or nonpublic entity that uses the calculated value method shall disclose the reasons why it is not practicable for the Company to estimate the expected volatility of its share price, the appropriate industry sector index that it has selected, the reasons for selecting that particular index, and how it has calculated historical volatility using that index.  The Company uses the average historical volatility of the comparable companies over the expected contractual life of the share options or similar instruments as its expected volatility.  If shares of a company are thinly traded the use of weekly or monthly price observations would generally be more appropriate than the use of daily price observations as the volatility calculation using daily observations for such shares could be artificially inflated due to a larger spread between the bid and asked quotes and lack of consistent trading in the market.
  Expected annual rate of quarterly dividends.  An entity that uses a method that employs different dividend rates during the contractual term shall disclose the range of expected dividends used and the weighted-average expected dividends.  The expected dividend yield is based on the Company’s current dividend yield as the best estimate of projected dividend yield for periods within the expected term of the share options and similar instruments.
 

Risk-free rate(s). An entity that uses a method that employs different risk-free rates shall disclose the range of risk-free rates used.  The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant for periods within the expected term of the share options and similar instruments.

 

Generally, all forms of share-based payments, including stock option grants, warrants and restricted stock grants and stock appreciation rights are measured at their fair value on the awards’ grant date, based on estimated number of awards that are ultimately expected to vest.

 

The expense resulting from share-based payments is recorded in general and administrative expense in the statements of operations.

  F- 14  

 

 

Stock-Based Compensation – Non Employees

 

Equity Instruments Issued to Parties Other Than Employees for Acquiring Goods or Services

 

The Company accounts for equity instruments issued to parties other than employees for acquiring goods or services under guidance of Sub-topic 505-50 of the FASB Accounting Standards Codification (“Sub-topic 505-50”).

 

Pursuant to ASC Section 505-50-30, all transactions in which goods or services are the consideration received for the issuance of equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable.  The measurement date used to determine the fair value of the equity instrument issued is the earlier of the date on which the performance is complete or the date on which it is probable that performance will occur.  If the Company is a newly formed corporation or shares of the Company are thinly traded the use of share prices established in the Company’s most recent private placement memorandum (“PPM”), or weekly or monthly price observations would generally be more appropriate than the use of daily price observations as such shares could be artificially inflated due to a larger spread between the bid and asked quotes and lack of consistent trading in the market.

 

The fair value of share options and similar instruments is estimated on the date of grant using a Binomial option-pricing valuation model.  The ranges of assumptions for inputs are as follows:

 

  Expected term of share options and similar instruments: Pursuant to Paragraph 718-10-50-2(f)(2)(i) of the FASB Accounting Standards Codification the expected term of share options and similar instruments represents the period of time the options and similar instruments are expected to be outstanding taking into consideration of the contractual term of the instruments and holder’s expected exercise behavior into the fair value (or calculated value) of the instruments.  The Company uses historical data to estimate holder’s expected exercise behavior.  If the Company is a newly formed corporation or shares of the Company are thinly traded the contractual term of the share options and similar instruments is used as the expected term of share options and similar instruments as the Company does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate expected term.
  Expected volatility of the entity’s shares and the method used to estimate it.  Pursuant to ASC Paragraph 718-10-50-2(f)(2)(ii) a thinly-traded or nonpublic entity that uses the calculated value method shall disclose the reasons why it is not practicable for the Company to estimate the expected volatility of its share price, the appropriate industry sector index that it has selected, the reasons for selecting that particular index, and how it has calculated historical volatility using that index.  The Company uses the average historical volatility of the comparable companies over the expected contractual life of the share options or similar instruments as its expected volatility.  If shares of a company are thinly traded the use of weekly or monthly price observations would generally be more appropriate than the use of daily price observations as the volatility calculation using daily observations for such shares could be artificially inflated due to a larger spread between the bid and asked quotes and lack of consistent trading in the market.
  Expected annual rate of quarterly dividends.  An entity that uses a method that employs different dividend rates during the contractual term shall disclose the range of expected dividends used and the weighted-average expected dividends.  The expected dividend yield is based on the Company’s current dividend yield as the best estimate of projected dividend yield for periods within the expected term of the share options and similar instruments.
  Risk-free rate(s). An entity that uses a method that employs different risk-free rates shall disclose the range of risk-free rates used.  The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant for periods within the expected term of the share options and similar instruments.

  F- 15  

 

Pursuant to ASC paragraph 505-50-25-7, if fully vested, non-forfeitable equity instruments are issued at the date the grantor and grantee enter into an agreement for goods or services (no specific performance is required by the grantee to retain those equity instruments), then, because of the elimination of any obligation on the part of the counterparty to earn the equity instruments, a measurement date has been reached. A grantor shall recognize the equity instruments when they are issued (in most cases, when the agreement is entered into). Whether the corresponding cost is an immediate expense or a prepaid asset (or whether the debit should be characterized as contra-equity under the requirements of paragraph 505-50-45-1) depends on the specific facts and circumstances.

 

Pursuant to ASC paragraph 505-50-45-1, a grantor may conclude that an asset (other than a note or a receivable) has been received in return for fully vested, non-forfeitable equity instruments that are issued at the date the grantor and grantee enter into an agreement for goods or services (and no specific performance is required by the grantee in order to retain those equity instruments). Such an asset shall not be displayed as contra-equity by the grantor of the equity instruments. The transferability (or lack thereof) of the equity instruments shall not affect the balance sheet display of the asset. This guidance is limited to transactions in which equity instruments are transferred to other than employees in exchange for goods or services. Section 505-50-30 provides guidance on the determination of the measurement date for transactions that are within the scope of this Subtopic.

 

Pursuant to Paragraphs 505-50-25-8 and 505-50-25-9, an entity may grant fully vested, non-forfeitable equity instruments that are exercisable by the grantee only after a specified period of time if the terms of the agreement provide for earlier exercisability if the grantee achieves specified performance conditions. Any measured cost of the transaction shall be recognized in the same period(s) and in the same manner as if the entity had paid cash for the goods or services or used cash rebates as a sales discount instead of paying with, or using, the equity instruments. A recognized asset, expense, or sales discount shall not be reversed if a share option and similar instrument that the counterparty has the right to exercise expires unexercised.

 

Pursuant to ASC paragraph 505-50-30-S99-1, if the Company receives a right to receive future services in exchange for unvested, forfeitable equity instruments, those equity instruments are treated as unissued for accounting purposes until the future services are received (that is, the instruments are not considered issued until they vest). Consequently, there would be no recognition at the measurement date and no entry should be recorded.

 

Revenue Recognition

  

Revenue is recorded when all of the following have occurred: (1) persuasive evidence of an arrangement exists, (2) asset is transferred to the customer without further obligation, (3) the sales price to the customer is fixed or determinable, and (4) collectability is reasonably assured.

 

Cost of Sales

 

Cost of sales represents costs directly related to the purchase of goods and third party testing of the Company’s products.

 

Related Parties

 

The Company follows subtopic 850-10 of the FASB Accounting Standards Codification for the identification of related parties and disclosure of related party transactions.

 

Pursuant to Section 850-10-20 the related parties include a. affiliates of the Company; b. Entities for which investments in their equity securities would be required, absent the election of the fair value option under the Fair Value Option Subsection of Section 825–10–15, to be accounted for by the equity method by the investing entity; c. trusts for the benefit of employees, such as pension and profit-sharing trusts that are managed by or under the trusteeship of management; d. principal owners of the Company; e. management of the Company; f. other parties with which the Company may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests; and g. Other parties that can significantly influence the management or operating policies of the transacting parties or that have an ownership interest in one of the transacting parties and can significantly influence the other to an extent that one or more of the transacting parties might be prevented from fully pursuing its own separate interests.

  F- 16  

 

 

The consolidated financial statements shall include disclosures of material related party transactions, other than compensation arrangements, expense allowances, and other similar items in the ordinary course of business. However, disclosure of transactions that are eliminated in the preparation of consolidated or combined financial statements is not required in those statements.

 

The disclosures shall include: a. the nature of the relationship(s) involved; b. a description of the transactions, including transactions to which no amounts or nominal amounts were ascribed, for each of the periods for which income statements are presented, and such other information deemed necessary to an understanding of the effects of the transactions on the financial statements; c. the dollar amounts of transactions for each of the periods for which income statements are presented and the effects of any change in the method of establishing the terms from that used in the preceding period; and d. amounts due from or to related parties as of the date of each balance sheet presented and, if not otherwise apparent, the terms and manner of settlement.

 

Contingencies

 

The Company follows subtopic 450-20 of the FASB Accounting Standards Codification to report accounting for contingencies. Certain conditions may exist as of the date the consolidated financial statements are issued, which may result in a loss to the Company but which will only be resolved when one or more future events occur or fail to occur. The Company assesses such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against the Company or unasserted claims that may result in such proceedings, the Company evaluates the perceived merits of any legal proceedings or unasserted claims as well as the perceived merits of the amount of relief sought or expected to be sought therein.

 

If the assessment of a contingency indicates that it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Company’s financial statements. If the assessment indicates that a potentially material loss contingency is not probable but is reasonably possible, or is probable but cannot be estimated, then the nature of the contingent liability, and an estimate of the range of possible losses, if determinable and material, would be disclosed.

 

Loss contingencies considered remote are generally not disclosed unless they involve guarantees, in which case the guarantees would be disclosed. However, there is no assurance that such matters will not materially and adversely affect the Company’s business, consolidated financial position, and consolidated results of operations or consolidated cash flows.

 

  Uncertain Tax Positions

The Company did not take any uncertain tax positions and had no adjustments to its income tax liabilities or benefits pursuant to the provisions of Section 740-10-25 for the reporting periods ended December 31, 2017, and 2016.

  

Subsequent Events

 

The Company follows the guidance in Section 855-10-50 of the FASB Accounting Standards Codification for the disclosure of subsequent events. The Company will evaluate subsequent events through the date when the financial statements are issued.

  

Pursuant to ASU 2010-09 of the FASB Accounting Standards Codification, the Company as an SEC filer considers its financial statements issued when they are widely distributed to users, such as through filing them on EDGAR.

 

  F- 17  

 

Recently Issued Accounting Pronouncements

 

In November 2015, the Financial Accounting Standards Board issued Accounting Standards Update No. 2015-17 “Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes” (“ASU 2015-17”) to simplify the presentation of deferred income taxes. Under this update, all deferred income tax assets and liabilities, along with any related valuation allowance, are required to be classified as noncurrent on the balance sheet. We do not believe the adoption of this update will have a material impact on our financial statements.

 

In February 2016, the FASB issued ASU No. 2016-02, “Leases (Topic 842).” The ASU will increase transparency and comparability among entities by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. The ASU will require lessees to recognize in the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The ASU is effective for annual reporting periods beginning after December 15, 2018 and interim periods within those annual periods. We do not believe the adoption of this update will have a material impact on our financial statements.

In March 2016, the FASB issued ASU No. 2016-09, Improvements to Employee Share-Based Payment Accounting, which simplifies the accounting and reporting for share-based compensation, including the accounting for income taxes, forfeitures, and statutory tax withholding requirements, as well as classification in the statement of cash flows. For public business entities, the amendments in this Update are effective for annual periods beginning after December 15, 2016, and interim periods within those annual periods. We currently do not expect the adoption of this update to have a material effect on our consolidated results of operations and financial position.

In August 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (”ASU”) No. 2016-15, “Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments.” This ASU includes specific guidance to address diversity in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. The ASU is effective for annual reporting periods beginning after December 15, 2017 and interim periods within those annual periods. The Company does not expect the adoption of this ASU to have a significant impact on the consolidated financial statements. 

 

In May 2014, the FASB has issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606)”.  The guidance in this update supersedes the revenue recognition requirements in Topic 605, “Revenue Recognition.”  In addition, the existing requirements for the recognition of a gain or loss on the transfer of nonfinancial assets that are not in a contract with a customer (for example, assets within the scope of Topic 360, Property, Plant, and Equipment, and intangible assets within the scope of Topic 350, Intangibles—Goodwill and Other) are amended to be consistent with the guidance on recognition and measurement (including the constraint on revenue) in this Update.  Under the new guidance, an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.  The amendments in ASU No, 2014-09 are effective for annual reporting periods beginning after December 15, 2016, including interim periods within that reporting period. Early application is not permitted.  We do not believe the adoption of this update will have a material impact on our financial statements.

 

Management does not believe that any other recently issued, but not yet effective accounting pronouncements, if adopted, would have a material effect on the accompanying financial statements.

 

Re-Classifications

 

Certain amounts in 2016 were reclassified to conform to the 2017 presentation. These reclassifications had no effect on consolidated net loss for the periods presented.

 

The fair value of the warrants on the date of issuance and on each re-measurement date of those warrants classified as liabilities is estimated using the Binomial option pricing model using the following assumptions: contractual life according to the remaining terms of the warrants, no dividend yield, weighted average risk-free interest rate of 1.49% at December 31, 2017 and weighted average volatility of 131.81%. For this liability, the Company developed its own assumptions that do not have observable inputs or available market data to support the fair value. This method of valuation involves using inputs such as the fair value of the Company's various classes of preferred stock, stock price volatility, the contractual term of the warrants, risk free interest rates and dividend yields. Due to the nature of these inputs, the valuation of the warrants is considered a Level 3 measurement. The warrant liability is recorded in other liabilities on the Company's Consolidated Balance Sheets. The warrant liability is marked-to-market each reporting period with the change in fair value recorded on the Consolidated Statement of Operations and Comprehensive Loss until the warrants are exercised, expire or other facts and circumstances lead the warrant liability to be reclassified as an equity instrument.

  F- 18  

 

 

NOTE 4 – CONVERTIBLE DEBT

 

These debts have a price adjustment provision. Therefore, the Company accounted for these Notes under ASC Topic 815-15 “Embedded Derivative.”  The derivative component of the obligation are initially valued and classified as a derivative liability with an offset to discounts on convertible debt. Discounts have been amortized to interest expense over the respective term of the related note. In determining the indicated value of the convertible note issued, . In determining the indicated value of the convertible note issued, the Company used the Binomial Option Model with a risk-free interest rate of ranging from 0.05% to 1.06%, volatility ranging from 131% of 157%, trading prices ranging from $.1 per share to $0.41 per share and a conversion price ranging from $0.03 per share to $0.10 per share. The total derivative liabilities associated with these notes are $30,343,609 at December 31, 2017 and $19,346,348 as of December 31, 2016.

 

Convertible Debt Summary
  Debt Type Debt Classification Interest Rate Due Date  Ending 
 CT   LT   12.31.17   12.31.16 
               
A Convertible  X    10.0% 1-Jan-17  $       25,000  $       25,000
B Convertible    X  8.0% 1-Jan-19            65,700            58,556
C Convertible    X  8.0% 1-Jan-19            32,850            29,278
D Convertible    X  8.0% 1-Jan-19         209,047         186,316
H Convertible    X  8.0% Converted                     -               55,895
I Convertible    X  8.0% Converted                     -               67,074
J Convertible    X  8.0% Converted                     -               23,442
K Convertible    X  8.0% Converted                     -               23,442
L Convertible    X  8.0% Converted                     -               27,116
M Convertible    X  8.0% Converted                     -            116,966
N Convertible    X  8.0% Converted                     -               50,000
O Convertible    X  8.0% 1-Jan-19         109,167         100,000
P Convertible    X  8.0% 1-Jan-19            52,767            50,000
Q Convertible    X  8.0% 1-Jan-19            52,050            50,000