PROSPECTUS
AQUA CLARA BOTTLING AND DISTRIBUTION, INC.
3,860,190 Shares of Common Stock
(no par value)
The estimated 3,860,190 shares (the "Shares") of Common Stock, no par
value (the "Common Stock") of Aqua Clara Bottling and Distribution, Inc., a
Colorado corporation (the "Company") are offered by the selling shareholders
(the "Selling Shareholders"), including 2,307,690 shares (assuming a market
price at the time of conversion of $1.75 and conversion at a rate of $1.0833 per
share) issuable upon conversion of $2,500,000 in principal amount of Series A
Convertible Preferred Stock (the "Series A Preferred"), 350,000 shares issuable
upon exercise of warrants and options and 1,202,500 shares currently
outstanding. The eventual number of Shares issuable upon exercise of the Series
A Preferred will depend on market prices on the date of conversion. The Company
will not receive any proceeds from the sale of Common Stock by the Selling
Shareholders. See "Selling Shareholders" and "Description of Securities." The
expenses of the offering, estimated at $42,000, will be paid by the Company.
The Common Stock currently trades on the Electronic Bulletin Board
under the symbol "AQCB" On September 16, 1998, the last sale price of the Common
Stock as reported on the Electronic Bulletin Board was $1.031 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED ON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
PURCHASE OF THESE SECURITIES INVOLVES RISKS. See "Risk Factors" on page 4.
The date of this Prospectus is October 24, 1998, as supplemented
January 6, 1999
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No person has been authorized in connection with this offering to give
any information or to make any representation other than as contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities covered by this Prospectus in any state or other jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such state
or jurisdiction. Neither the delivery of this Prospectus nor any sales made
hereunder shall, under any circumstances, create an implication that there has
been no change in the affairs of the Company since the date hereof.
ADDITIONAL INFORMATION
The Company has filed a Registration Statement under the Securities Act
with respect to the securities offered hereby with the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. This Prospectus, which is a part of the
Registration Statement, does not contain all of the information contained in the
Registration Statement and the exhibits and schedules thereto, certain items of
which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including all exhibits and schedules thereto, which may be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at its Regional Offices
located at 7 World Trade Center, New York, New York 10048, and at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 at
prescribed rates during regular business hours. Statements contained in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of such
contract or document filed as an exhibit to the Registration Statement, each
such statement being qualified in its entirety by such reference. The Company
will provide, without charge upon oral or written request of any person, a copy
of any information incorporated by reference herein. Such request should be
directed to the Company at 1315 Clearwater Street, Clearwater, Florida, 33755,
telephone (813) 446-2999.
As of the date of this Prospectus, the Company became a reporting
company under the Exchange Act and in accordance therewith in the future will
file reports and other information with the Commission. All of such reports and
other information may be inspected and copied at the Commission's public
reference facilities described above. The Commission maintains a web site that
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the Commission. The address of
such site is http://www.sec.gov. In addition, the Company intends to make
available to its shareholders annual reports, including audited financial
statements, unaudited semi-annual reports and such other reports as the Company
may determine.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the
more detailed information and financial statements, including the notes thereto,
appearing elsewhere in this Prospectus.
The Company
Aqua Clara Bottling & Distribution, Inc., a Colorado corporation (the
"Company") produces, bottles and sells non-sparkling purified drinking water
products.
According to Beverage Marketing, published by Beverage Marketing Corp.,
located at 2670 Commercial Avenue, Mingo Junction, Ohio 43938, the total U.S.
market for bottled water has grown from 1.6 billion gallons sold in 1987 to over
3.1 billion gallons in 1996, and accounted for approximately $3.6 billion in
wholesale sales during 1996. Non-sparkling water comprises over 87% of the U.S.
bottled water market and generated $2.7 billion of wholesale sales in 1996, and
is expected to continue to grow in the future. PET (an acronym for polyethylene
terephthalate, a premium clear plastic) packaged products comprise approximately
39% of the domestically produced non-sparkling water market and have grown from
approximately 83 million gallons in 1987 to approximately 580 million gallons in
1996, representing a compounded annual growth rate of approximately 24%.
PET-packaged products accounted for approximately $921 million of wholesale
sales in 1996. According to Beverage Marketing, PET bottled water is among the
fastest growing beverage categories in the United States. Contributing to the
growth in consumption of non-sparkling water are consumer trends including
health and fitness awareness, municipal tap water quality concern and maturing
soft drink demand, as well as consumer demand for convenience and innovative
packaging. Since April 1997, the Company has generated revenues from its 5
gallon home and office delivery business, which was sold by the Company in March
1998, and the Company now intends to focus its growth in PET containers ranging
from .5 liter to 1.5 liters, and to specialize in oxygen enriched water; with 40
parts per million (ppm) of oxygen, compared to 7 ppm for tap water. Oxygen
richness imparts a light and crisp taste and management believes that oxygen
enriched water is healthier, although no studies have been made to underlie this
conclusion.
The corporate offices of the Company are located at 1315 Cleveland
Street, Clearwater, Florida 33755 and its telephone number is (813) 446-2999.
<TABLE>
<CAPTION>
<S> <C>
Securities Offered:.............................. 3,860,190 shares of Common Stock, no par value per share,
including 2,307,690 shares issuable upon conversion of 2,500
shares of Series A Preferred Stock at a conversion price per
share of Preferred Stock equal to $1,000 divided by the lower
of $1.875 or 65% of the average closing bid price of the
Common Stock on the five trading days prior to conversion;
350,000 shares issuable upon exercise of warrants and options;
and 1,202,500 shares currently outstanding.
Risk Factors..................................... The securities offered hereby involve a high degree of risk and
immediate substantial dilution and should not be purchased by
investors who cannot afford the loss of their entire investment.
See "Risk Factors."
Common Stock Outstanding(1) Before Offering:..... 6,521,622(1) shares
Common Stock Outstanding After Offering:......... 9,179,312(1) shares
NASD Electronic Bulletin Board Symbol............ AQCB
</TABLE>
(1) Based on shares outstanding as of October 8, 1998.
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Risk Factors
The securities offered hereby are highly speculative and involve a high
degree of risk, including, but not necessarily limited to the risk factors
described below. Prospective purchasers should carefully consider the following
risk factors, among others, as well as the remainder of this prospectus, prior
to making an investment in the Company.
RISK FACTORS
An investment in the securities offered hereby is speculative in nature
and involves a high degree of risk. In addition to the other information in this
Prospectus, the following factors should be considered carefully in evaluating
the Company and its business.
Control Dispute
On October 12, 1998, John S. McAvoy, the then President of the Company,
gave notice that he was converting 45,000 shares of his common stock into
4,500,000 shares of a new Series B Preferred Stock. In October, 1998, Mr. McAvoy
took the position that the other officers of the Company had resigned and on
October 28, 1998 he executed a Consent action, exercising his purported rights
as a holder of 1,800,000 shares of Common Stock and 4,500,000 shares of super
voting stock, removing Messrs. Plunkett, Gray and Guthrie from the Board of
Directors, and electing Donald Huggins and Gerald Couture. The Company's
position is that since the Colorado Business Corporation Act requires that
shareholder consent actions, to be valid, must be unanimous, that McAvoy's
actions, assuming he held any Series B Preferred, were insufficient to remove
these three directors. In November, the renegade board purportedly increased the
number of authorized Series B Preferred to 49,500,000 and issued options to
purchase 3,600,000 shares of Common Stock at $.10 per share. On October 30, 1998
the Board of Directors removed John S. McAvoy as President and elected Mr.
Plunkett as President. On December 15, 1998 the Company filed an Amendment to
its Articles of Incorporation with the Colorado Secretary of State to eliminate
the Series B Preferred as an authorized class of stock. The members of the Board
of Directors, being Messrs. Guthrie, Plunkett and Gray, have sued Messrs.
McAvoy, Gerald Huggins and Donald Couture, as set forth under "Business - Legal
Proceedings." The Company obtained a temporary restraining order against McAvoy,
Huggins and Couture. The lawsuit was dismissed against McAvoy upon his written
resignation. Management believes that Huggins and Couture have no standing as
board members, but in the event they commence litigation and prevail, a change
of control could occur. See "Business - Legal Proceedings."
Limited History of Business Operations; Management of Growth
The Company has limited operating history, having commenced operations
in April 1997. The Company's operating history to date has been limited to the
5-gallon delivery market, which has been sold and the Company has no experience
in the PET market. The Company will be required to build a management
infrastructure as it devotes significant managerial resources to build its PET
business. As a result of the increase in operating expenses caused by this
expansion, operating results may be adversely affected if sales do not
materialize, whether due to increased competition or otherwise. The can be no
assurance that the Company will achieve significant sales or achieve
profitability. As a result, the Company believes that period to period
comparisons of its results of operation are not necessarily meaningful and
should not be relied upon as an indication of future performance.
Additional Financing Requirements of the Company
At July 4, 1998, the Company had working capital of approximately
$112,658. The Company's operations have been financed to date through a debt
offering and through sales of its common stock, most recently through the sale
of 2,500 shares of Series A Preferred Stock and the sale of 250,000 Shares of
Common Stock at $1.00 per share. The Company requires significant capital for
the expansion of its operations. The Company believes that the net proceeds from
this Preferred Stock offering and the Common Stock offering should be sufficient
to fund its operations until at least until April 30, 1999. However, no
assurance can be given that additional funds will not be required prior to the
expiration of such period or that any funds which may be required will be
available, if at all, on acceptable terms. If additional funds are required, the
inability of the Company to raise such funds will have an adverse effect upon
its operations. To the extent that additional funds are obtained by the sale of
equity securities, the stockholders may sustain significant dilution. If
adequate capital is not available the Company will have to
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reduce or eliminate its planned expansion activities, which could otherwise
ultimately provide significant revenue to the Company. Even if such additional
financing is available on satisfactory terms, it, nonetheless, could entail
significant additional dilution of the equity ownership of the Company to
existing shareholders and the book value of their outstanding shares.
Competition
The bottled water industry is highly competitive. Nearly all of the
Company's competitors have more experience in the U.S. bottled water market,
have greater financial and management resources and have more established
proprietary trademarks and distribution networks than the Company. The Company
currently competes with respect to bottled water with established national
companies such as The Perrier Group of America, Inc. (whose brands include
Arrowhead Mountain Spring Water, Poland Spring, Ozarka Spring Water, Great Bear,
Deer Park, Ice Mountain and Zephyrhills Natural Spring Water) and Great Brands
of Europe (whose brands include Evian Natural Spring Water and Dannon Natural
Spring Water), as well as numerous regional bottled water companies located in
the United States and Canada. The Company competes not only with other bottled
water producers, but also with producers of other beverages, including, but not
limited to, soft drinks, coffee, juices, beer, liquor and wine. The bottled
water industry also competes for the same consumer who may, when choosing to
drink water, drink tap water or use a home filtration system to filter tap water
for drinking. There can be no assurance that the Company can compete
successfully. See "Business -- Competition."
Ability to Manage Growth
In order to penetrate its bottled water business, the Company must meet
its strategic objectives to produce high quality oxygenated water products,
build its customer base, build its product line and add new distribution
channels. The Company's ability to meet these objectives depends upon (a) the
successful development and equipping of its Clearwater plant (b) the successful
marketing and distribution of its products, (C) the securing of sources of water
(d) the degree to which the Company loses sales to competing water suppliers,
(e) the availability of capital, (f) consumer acceptance of oxygenated water and
(g) general economic and other factors beyond the Company's control. The Company
has never produced and marketed PET packaged products. No assurance can be given
as to the future growth in the Company's business or as to its profitability.
Further growth of the Company will require employment and training of new
personnel, expansion of facilities and expansion of management information
systems. If the Company is unable to manage its growth effectively, the
Company's profitability and its ability to achieve its strategic objectives may
likely be materially adversely affected.
Fluctuations in Quarterly Operating Results
The Company's revenues are subject to several factors which may result
in fluctuations in the Company's operating results. The bottled water business
is highly seasonal, with increased sales during warmer months. Inclement weather
may negatively impact the Company's business, particularly summers which are
unusually cool or rainy. Fluctuations in retail prices and raw material prices
may produce corresponding fluctuations in the Company's profits. In addition,
the Company expects to make significant investments from time to time in capital
improvements to, among other things, increase capacity. Costs associated with
such improvements may cause an immediate reduction in profit margins unless and
until sales volume increases. The Company's product and packaging mix may change
from time to time and, depending on certain factors, may negatively impact
profit margins. The Company is subject to competitive pricing pressures which
may affect its financial results. Due to all the foregoing factors, it is
possible that in some future quarter or quarters, the Company's operating
results would likely be below the expectations of securities analysts and
investors. In such event, the price of the Common Stock would likely be
materially adversely affected.
Dependence on Key Personnel
The continued success of the Company is largely dependent on the
personal efforts and abilities of
management, including Mr. John C. (Jack)
Plunkett, President and Chief Operating Officer, and Mr. Rand L. Gray, Chief
Financial Officer of the Company. The Company
has entered into employment agreements with these persons but has no key man
life insurance in place. The loss
of any of these executive's services could have a material adverse effect on
the Company. See "Management."
Dependence on Key Suppliers
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All of the Company's water products will be expected to be offered in
premium PET bottles. PET bottles are manufactured by a limited number of
suppliers. While the Company believes that it will be able to obtain bottles,
there can be no assurance that the Company will be able to obtain PET bottles
from its suppliers on commercially reasonable terms, particularly at periods of
peak demand. Failure to obtain the necessary packaging materials could have a
material adverse effect on the business of the Company. The Company has no
agreements in place securing a supply of PET bottles. In the event the Company's
requirements for PET bottles are not met, there may be a material adverse effect
on the Company until alternative supplies of PET bottles are found.
Raw Material Prices
Due to the wide range of beverages available to consumers, including
bottled water products, the Company has limited ability to raise prices for its
products. The Company could in the future be affected by higher prices for raw
materials including PET resin and corrugated boxes. The Company might be unable
to pass such higher costs to its customers. As a result, the Company's results
of operations may be adversely affected by future increases in raw material
prices.
Product Liability
The bottling and distribution of bottled water products entails a risk
of product liability, including liability due to the presence of contaminants in
its products. The Company maintains insurance coverage against the risk of
product liability and product recall. However, the amount of the insurance
carried by the Company is limited, the insurance is subject to certain
exclusions and may or may not be adequate. In addition to direct losses
resulting from product liability and product recall, the Company may suffer
adverse publicity and damage to its reputation in the event of contamination
which could have a material adverse effect on sales and profitability.
Dependence on Trademarks
The Company has obtained a trademark on the Aqua Clara trademark, and
has applied for federal registrations for other proposed trademarks. The Company
believes that its registered and common law trademarks have significant value
and goodwill and that some of these trademarks are instrumental in its ability
to create demand for and to market its products. There can be no assurance that
the Company's trademarks do not or will not violate the proprietary rights of
others, that they would be upheld if challenged or that the Company would, in
such an event, not be prevented from using the trademarks, any of which could
have a material adverse effect on the Company.
Government Regulation
The Company's operations are subject to numerous federal, state and
local laws and regulations relating to its bottling operations, including the
identity, quality, packaging and labeling of its bottled water. These laws and
regulations and their interpretation and enforcement are subject to change.
There can be no assurance that additional or more stringent requirements will
not be imposed on the Company's operations in the future. Failure to comply with
such laws and regulations could result in fines against the Company, a temporary
shutdown of production, recalls of the product, loss of certification to market
the product or, even in the absence of governmental action, loss of revenue as a
result of adverse market reaction to negative publicity. Any such event could
have a material adverse effect on the Company. See "Business -- Regulation."
Lack of Inventory
The Company intends to maintain a limited amount of finished product
inventory. An event causing the Company's facilities to shut down, even for a
short period, would result in an inability to fill customer orders and
accordingly would have a material adverse effect on the Company's revenues and
customer relations.
Consumer Preferences
The Company believes that the most important factor in the growth of
natural water products has been a change in consumer preferences. Consumer
preferences may be influenced, however, by the availability and appeal of
alternative beverages or packaging as well as general economic conditions, among
other things. No assurance can be given that consumer demand for oxygen enriched
water will exist, grow or will not diminish in the future.
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No Cash Dividends
The Company has not paid any cash dividends on its capital stock. The
Company anticipates that its future earnings, if any, will be retained for use
in the business, or for other corporate purposes, and it is not anticipated that
any cash dividends on the Common Stock will be paid in the foreseeable future.
See "Dividend Policy" and "Description of Securities."
Control by Current Shareholders; Anti-Takeover Devices
Upon the consummation of this Offering, and assuming the conversion of
all of the shares into the underlying Common Stock at the rate of $1.0833 per
share and the exercise of all outstanding options which are requested hereby,
(but not the sale of shares by management), management and other control
shareholders will own 29.3% of the outstanding shares of Common Stock.
Accordingly, such persons, acting in concert, may be able to elect all of the
Company's directors, increase the Company's authorized capital, dissolve, merge
or sell the assets of the Company and generally direct the affairs of the
Company. See "Principal Shareholders."
In addition, certain provisions in the Company's Articles of
Incorporation and certain provisions of
applicable Colorado law may, under certain circumstances, have the effect of
discouraging, delaying or preventing
a change in control of the Company. See "Description of Securities -- Preferred
Stock."
No Prior Public Broad Market
Prior to this Offering, the Company's Common Stock has traded on the
NASDAQ OTC Bulletin Board under the symbol "AQCB." Although the Company intends
to apply at some future time to have the Common Stock included in the Nasdaq
SmallCap(R) Market, it does not currently meet the requirements for such listing
and there can be no assurance that the application will be successful nor that a
broad market in the Common Stock will develop, or, if such a market develops,
that it will be sustained. There can therefore be no assurance as to when, if at
all, investors will be able to liquidate their investment in the Company.
Nasdaq Stock Market and Market Illiquidity
The Company's Common Stock does not meet the current Nasdaq listing
requirements for the SmallCap(R) Market. If the Company is unable to satisfy
Nasdaq's requirements for listing, trading, if any, the Common Stock will
continue to be conducted on the NASD's OTC Bulletin Board, established for
securities that do not meet the Nasdaq SmallCap(R) Market listing requirements.
Consequently, the liquidity of the Company's securities could be impaired, not
only in the number of securities which could be bought and sold, but also
through delays in the timing of transactions, reduction in security analysts'
and the news media's coverage of the Company, and lower prices for the Company's
securities than might otherwise be attained.
Risks of Low-priced Stocks; Penny Stock Regulations
Until such time, if any, that the Company's securities are listed on
The Nasdaq SmallCap(R) Market or a registered U.S. securities exchange they will
continue to be subject to Rule 15g-9 under the 1934 Act, which imposes
additional sales practice requirements on broker-dealers which sell such
securities to persons other than established customers and institutional
accredited investors. For transactions covered by this rule, a broker-dealer
must make a special suitability determination for the purchaser and have
received the purchaser's written consent to the transaction prior to sale.
Consequently, the rule may affect the ability of broker-dealers to sell the
Company's Common Stock and may affect the ability of purchasers in this Offering
to sell any of the Common Stock acquired pursuant to this Memorandum in the
secondary market. The Commission's regulations define a "penny stock" to be any
equity security that has a market price (as therein defined) less than $5.00 per
share or with an exercise price of less than $5.00 per share, subject to certain
exceptions. The penny stock restrictions will not apply to the Company's Common
Stock if the Common Stock is listed on The Nasdaq SmallCap(R) Market and has
certain price and volume information provided on a current and continuing basis,
or meets certain minimum net tangible assets and other criteria. There can be no
assurance that the Company's securities will qualify for exemption from these
restrictions. If the Company's Common Stock continues to be subject to the rules
on penny stocks, the market liquidity for the Common Stock could be severely
adversely affected.
Shares Eligible for Future Sale
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All but 2,823,850 of the presently issued and outstanding shares of
Common Stock are "restricted securities" as that term is defined under Rule 144
promulgated under the Securities Act. Rule 144 governs resales of such
restricted securities for the account of any person (other than an issuer), and
restricted and unrestricted securities for the account of an "affiliate" of the
issuer. Restricted securities generally include any securities acquired directly
or indirectly from an issuer of its affiliates which were not issued or sold in
connection with a public offering registered under the Securities Act. An
affiliate of the issuer is any person who directly or indirectly controls, is
controlled by, or is under common control with, the issuer. Affiliates of the
Company may include its directors, executive officers and persons directly or
indirectly owning 10% or more of the outstanding Common Stock. Under Rule 144
unregistered resales of restricted Common Stock cannot be made until it has been
held for one year from the later of its acquisition from the Company or an
affiliate of the Company. Thereafter, the remaining 3,697,772 shares of Common
Stock (57% of the current outstanding) may be resold without registration
subject to Rule 144's volume limitation, aggregation, broker transaction, notice
filing requirements, and requirements concerning publicly available information
about the Company (the "Applicable Requirements"). The majority of the
outstanding "restricted securities" have currently been held more than one year
and are immediately resalable under Rule 144 and the applicable Requirements.
Resales by the Company's affiliates of restricted and unrestricted Common Stock
are subject to the Applicable Requirements. The volume limitations provide that
a person (or persons who must aggregate their sales) cannot, within any
three-month period, sell more than the greater of (I) one percent of the then
outstanding shares, or (ii) the average weekly reported trading volume during
the four calendar weeks preceding each such sale. A person who is not deemed an
"affiliate" of the Company and who has beneficially owned shares for at least
one year would be entitled to sell such shares under Rule 144 without regard to
the Applicable Requirements. If a broad public market develops for the Company's
Common Stock, sales made under Rule 144, or other sales may have an adverse
effect upon the then prevailing market price of the Common Stock or the ability
of purchasers in this offering to resell their shares.
Potential Future Issuances of Securities
The Company's Board of Directors has the power, without the consent of
the shareholders, to issue additional shares of common stock or preferred stock
for such consideration as may be permitted under the Colorado Business
Corporation Act. Preferred stock may be issued with preferences or rights as to
dividends, voting or liquidation which are superior to those of holders of
common stock. In view of the large number authorized but unissued shares of
common stock (43,478,378 Shares as of the date of this Prospectus) current
shareholders are subject to significant potential dilution in their ownership
interest in the Company, see "Description of Securities."
Risks Associated with Forward-looking Statements
This Prospectus contains certain forward-looking statements regarding
the plans and objectives of management for future operations, including plans
and objectives relating to the Company's planned marketing efforts and future
economic performance of the Company. The forward-looking statements and
associated risks set forth in this Prospectus include or relate to: (I) the
ability of the Company to obtain a meaningful degree of consumer acceptance for
its products and future products, (ii) the ability of the Company to market its
products and future products on a national basis at competitive prices, (iii)
the ability of the Company to develop brand-name recognition for its products
and future products, (iv) the ability of the Company to develop and maintain an
effective sales network, (v) success of the Company in forecasting demand for
its products and future products, (vi) the ability of the Company to maintain
pricing and thereby maintain adequate profit margins, (vii) the ability of the
Company to achieve adequate intellectual property protection for the Company's
products and future products and (viii) the ability of the Company to obtain and
retain sufficient capital for its future operations.
The forward-looking statements herein are based on current expectations
that involve a number of risks and uncertainties. Such forward-looking
statements are based on assumptions that the Company will market and provide
products on a timely basis, that the Company will retain its customers, that
there will be no material adverse competitive or technological change in
conditions in the Company's business, that demand for the Company's products
will significantly increase, that the Company's President will remain employed
as such by the Company, that the Company's forecasts accurately anticipate
market demand, and that there will be no material adverse change in the
Company's operations or business or in governmental regulations affecting the
Company or its suppliers. The foregoing assumptions are based on judgments with
respect to, among other things, future economic, competitive and market
conditions, and future business decisions, all of which are difficult or
impossible to predict accurately and many of which are beyond the Company's
control. Accordingly, although the Company believes that the assumptions
underlying the forward-looking statements are reasonable, any such assumption
could prove to be inaccurate and
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therefore there can be no assurance that the results contemplated in
forward-looking statements will be realized. In addition, as disclosed elsewhere
in the "Risk Factors" section of this Prospectus, there are a number of other
risks inherent in the Company's business and operations which could cause the
Company's operating results to vary markedly and adversely from prior results or
the results contemplated by the forward-looking statements. Growth in absolute
and relative amounts of cost of goods sold and selling, general and
administrative expenses or the occurrence of extraordinary events could cause
actual results to vary materially from the results contemplated by the
forward-looking statements. Management decisions, including budgeting, are
subjective in many respects and periodic revisions must be made to reflect
actual conditions and business developments, the impact of which may cause the
Company to alter its marketing, capital investment and other expenditures, which
may also materially adversely affect the Company's results of operations. In
light of significant uncertainties inherent in the forward-looking information
included in this Prospectus, the inclusion of such information should not be
regarded as a representation by the Company or any other person that the
Company's objectives or plans will be achieved.
See "Management's Discussion and Analysis" and "Business."
DIVIDEND POLICY
The Company has not paid any dividends on its Common Stock. The Company
currently intends to retain any earnings for use in its business, and therefore
does not anticipate paying cash dividends in the foreseeable future.
The Company is obligated to pay to holders of Series A Preferred Stock
an 8% annual dividend, equal to $80.00 per share, payable on each July 1
commencing on July 1, 1998. In the option of the Company it may pay such
dividend in shares of Common Stock valued at the Conversion Rate in effect on
July 1, 1998. No dividends may be paid on the Common Stock unless dividends have
been paid to the holders of Series A Preferred Stock.
MARKET PRICE OF COMMON STOCK
The Company's Common Stock has been listed on the NASD OTC Electronic
Bulletin Board sponsored by the National Association of Securities Dealers, Inc.
under the symbol "AQCB" since August 21, 1997. On September 11, 1998 the closing
bid price as reported by the Electronic Bulletin Board was $1.031.
The following table sets forth the high and low bid prices for the
Common Stock as reported on the Electronic Bulletin Board for each quarter since
August 21, 1997, for the periods indicated. Such information reflects inter
dealer prices without retail mark-up, mark down or commissions and may not
represent actual transactions.
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<CAPTION>
Quarter Ended High Low
<S> <C> <C>
September 30, 1997 4.50 1.8437
December 31, 1997 4.0625 2.00
March 31, 1998 3.1875 3.125
June 30, 1998 1.8750 1.8125
</TABLE>
As of September 16, 1998, there were approximately 200 record holders
of Company common stock.
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MANAGEMENT'S DISCUSSION AND ANALYSIS
Results of Operations
The Company's sales commenced in April 1997 with the introduction of
its 5 gallon bottled water service. The Company's fiscal year ends on the first
Saturday in April and its fiscal quarters end on the first Saturday in July,
October and January. In the fiscal year ended April 4, 1998 the Company had
$135,710 in sales from this business. Revenues are comprised of cooler rentals
and water sales, which terminated in March 1998. The Company intends with the
proceeds of its recent offering of Series A Preferred Stock and its sale of
250,000 Shares of Common Stock registered hereby to further penetrate the PET
bottled water market.
Three months ended July 4, 1998.
The Company commenced shipping PET products in mid June, 1998,
resulting in sales of $19,111 in the three months ended July 4, 1998, (interim
1998) compared to $14,785 in 5 gallon-water sales in the three months ended June
30, 1997 (interim 1997). Distribution is being made to Florida Albertsons, A&P
Stores, in Georgia and Walgreens and GNC Stores in Florida. The 5-gallon
business was sold by the Company in March 1998. Cost of sales in Interim 1998
were 156% of sales due to the start up costs and the low volume. Sales in
Interim 1998 were made to a limited number of distributors to establish markets.
General administration and sales expenses were $249,809 in Interim 1998,
compared to $523,603 in Interim 1997. The reduction was due to aggressive cost
control actions taken by management.
Year Ended April 4, 1998.
General, administrative and sales expenses in the year ended April 4,
1998 increased to $2,084,099, approximately nine times the level of such
expenses in the year ended March 31, 1997. Such expenses in year ended April 4,
1998 include $1,401,250 for consulting services paid in stock, and $132,000 in
other non-recurring expense. The increased level of these expenses in the year
ended April 4, 1998 reflects the commitment of the delivery of bottled water
business and expenses related to establishing the PET water business.
Sales of PET products commenced in June 1998. The Company has few
agreements in place with distributors for its PET bottled water products and
there can be no assurance as to future operating revenues from this business.
The Company sold its 5 gallon water business in March 1998 to Clearidge, Inc., a
Tennessee corporation located in Nashville Tennessee and a competitor to the
Company. Neither the Company nor any of its officer or directors is affiliated
with Clearidge. The purchase price of approximately $352,394 was paid $186,400
in cash and $148,782 by the assumption of installment notes payable, and
includes accounts receivable, inventory, equipment and deposits. See notes 1 and
5 of the notes to Consolidated Financial Statements. If the 5-gallon water
business had not been in existence for the years ended April 4, 1998 and March
31, 1997, the Company would have had no sales in either year, and would have had
$1,870,524 in general and administrative expenses and $1,881,903 in net losses
in fiscal 1998, compared to $2,084,099 and $2,203,714 in general and
administrative expenses and net loss, respectively, and the Company's need for
cash to supplement cash from operations would have been accordingly reduced.
General and administrative expenses related to the expansion of the
Company's business are expected to be less than $10,000 per month. The Company
does not intend to manufacture PET water products without firm orders in hand
for its products. However, the Company intends to expend approximately $300,000
over the next twelve months in advertising, marketing and distribution costs,
which amounts are expected to be expended prior to the receipt of significant
revenues. There can be no assurance as to when, if ever, the Company will
realize significant operating revenues nor attain profitability, if ever.
Liquidity and Capital Resources
As of July 4, 1998, the Company had working capital of approximately
$112,658, most of which was comprised of cash. In December 1997 the Company
completed a private offering of Series A Convertible Preferred Stock. The
proceeds of the offering were used to refurbish its Clearwater facility
($500,000), acquire water treatment and processing equipment, and oxygen
enhancement and bottling equipment ($800,000) and marketing and general and
administrative expenses and working capital. In August 1998 the Company received
$250,000 ($125,000 from
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each of the two purchasers) from the first installment payment on its 1,000,000
share offering of $1.00 per share. The first installment of $125,000 was paid by
each of the two purchasers, Thomas G. Vinton and Dennis Zweig in August 1998. In
October 1998 these two purchasers and the Company agreed to cancel the
subscriptions to purchase the remaining 750,000 shares, and the related
installment notes were cancelled. The Company's need for cash over the 12 months
ended July 3, 1999 is estimated to be $750,000, including the $250,000 already
received from the Common Stock Offering. The monthly cost deficit until
commencement of significant sales is $62,500. Management estimates that the
minimum monthly sales required to meet its operating cash flow requirement is
$210,000, which is estimated to be attained in February 1999. This projection is
based upon the assumption that the Company's current rate of customer growth
will continue. In the alternative, the Company is negotiating with several
potential larger customers, and if those negotiations are successful, the
projected sales level could be reached sooner. If this internal projection is
met the Company would require only $550,000 in cash with the remaining $200,000
to be allocated to reserve. However, there can be no assurance that management's
projections will materialize nor that other underlying assumptions will remain
constant. The realization of management's projections is based upon many factors
outside the control of management, including consumer and retailer acceptance of
its products, competitive pressures, and weather (more bottled water is consumed
during warmer temperatures). The Company anticipates meeting its remaining
$500,000 cash requirement from potential financing secured by a mortgage on its
facilities, or additional debt or equity placements. In addition, the Company
has outstanding options and warrants to purchase 350,000 shares of Common Stock
for proceeds of $1,350,000 at exercise prices ranging from $1.00 to $7.00 per
share, but the Company makes no representations as to the likelihood of the
exercise of these options and warrants. However, in the event the Company's
business expands beyond the Company's internal projections, or in the event the
Company encounters unforeseen difficulties occasioned by increased competition,
inability to obtain distribution contracts, or other factors, the Company may be
required to obtain additional capital on terms which cannot be foreseen at this
time. The Company has no other plans or arrangements with respect to additional
capital sources.
The Company has no lines of credit available to it at this time.
Inflation has not had a significant impact on the Company's results of
operations.
Prepaid expenses as of April 4, 1998 and July 4, 1998 include $400,800
in public relations expenses for a contract to be performed over twelve months
commencing January 1998. This contract was paid out of the Company's preferred
stock offering.
BUSINESS AND PLAN OF OPERATION
General
Aqua Clara Bottling & Distributors, Inc., a Colorado corporation (the
"Company") organized on July 29, 1996 is the successor to Pocotopaug Investment,
Inc., a Florida corporation and the Company's operating subsidiary
("Pocotopaug"). Pocotopaug was organized in August 1995 by John S. McAvoy to
investigate the feasibility of producing and marketing non-sparkling drinking
water products. The Company produces and sells non-sparkling purified drinking
and distilled and natural water products.
Since April 1997, the Company has generated revenues from its 5 gallon
home and office delivery business, which was sold in March 1998, and the Company
now intends to focus its future operations in the sale of oxygen enriched water
packaged in PET containers ranging from .5 liter to 1.5 liters, and to
specialize in oxygen enriched water; with 40 parts per million (ppm) of oxygen,
compared to 7 ppm for tap water. Oxygen richness imparts a light and crisp taste
and management believes that oxygen enriched water is healthier, although no
studies have been made to underlie this conclusion.
According to Beverage Marketing (published by Beverage Marketing Corp.,
located at 2670 Commercial Avenue, Mingo Junction, Ohio 43938), the total U.S.
market for bottled water has grown from 1.6 billion gallons sold in 1987 to over
3.1 billion gallons in 1996, and accounted for approximately $3.6 billion in
wholesale sales during 1996 and non-sparkling water comprises over 87% of the
U.S. bottled water market and generated $2.7 billion of wholesale sales in 1996,
and is expected to continue to grow in the future (Beverage Marketing has no
affiliation with the Company or any of its affiliates). PET (an acronym for
polyethylene terephthalate, a premium clear plastic) packaged products comprise
approximately 39% of the domestically produced non-sparkling water market and
have grown from approximately 83 million gallons in 1987 to approximately 580
million gallons in 1996, representing a compounded annual growth rate of
approximately 24%. PET-packaged products accounted for
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approximately $921 million of wholesale sales in 1996. According to Beverage
Marketing, PET bottled water is among the fastest growing beverage categories in
the United States. Contributing to the growth in consumption of non-sparkling
water are consumer trends including health and fitness awareness, municipal tap
water quality concern and maturing soft drink demand, as well as consumer demand
for convenience and innovative packaging.
Industry Overview
The U.S. bottled water market is comprised of three segments:
domestically produced non-sparkling water, domestically produced sparkling water
and imported water, which constituted approximately 65%, 21% and 14%,
respectively, of 1996 U.S. bottled water wholesale sales, according to Beverage
Marketing. The domestically produced non-sparkling water category includes
natural spring water obtained from naturally occurring springs, well water,
distilled water and purified water. Unlike other beverages, bottled water serves
both as a tap water substitute and a refreshment beverage.
Consumer Trends. Contributing to the growth in consumption of
non-sparkling water are consumer trends including health and fitness awareness,
municipal tap water quality concern and maturing soft drink demand, as well as
consumer demand for convenience and innovative packaging. Bottled water,
particularly when packaged in premium PET bottles with sport caps, appeals to
consumers who are sports enthusiasts or whose lifestyles are oriented to health
and fitness. According to Beverage Marketing, consumers' concern over the
quality of municipal water supplies has contributed to an increase in bottled
water consumption. Bottled water has also become an alternative to other
beverages, including soft drinks. According to Information Resources, Inc.
("IRI"), total U.S. gallons sold of soft drinks through food store channels has
increased approximately 10% from 1994 through 1996. (Information Resources Inc.,
is located at 150 Clinton Street, Chicago, Illinois 60661 and has no affiliation
with the Company or any affiliate thereof.) Over the same time period, gallons
sold of ready-to-drink juices have increased approximately 1%. In contrast,
non-sparkling bottled water gallons sold have increased approximately 21% from
1994 to 1996, according to Beverage Marketing. Bottled spring water is natural
and caffeine and additive free. These attributes and the increased availability
of convenient packaging for natural spring water have contributed to the
increase in bottled water consumption.
Distribution Channels. Non-sparkling bottled water is generally sold to
end users through four channels. According to Beverage Marketing, the total
share of the bottled water market for each channel is as follows: (I)
off-premise retail, which consists of supermarket, convenience store and drug
store chains and other similar retail outlets (44.9%); (ii) home and office
delivery which primarily consists of 5 gallon containers (39.0%); (iii)
on-premise retail, which includes restaurants, delicatessens and other similar
sites (8.3%); and (iv) vending (7.8%).
Non-sparkling bottled water is generally delivered to customer
locations through direct-store-delivery ("DSD") or warehouse distribution
systems. DSD involves delivery of the product directly to the store's location
where consumers may purchase the product. Warehouse distribution systems involve
the delivery of truckloads of palletized products to the warehouses of regional
customers which, in turn, deliver the product directly to the customer's retail
sales locations.
Private Label. Private label products have become increasingly popular
among retailers and other customers. For example, supermarket sales of private
label products grew 8.5% in 1996 versus 1.4% growth among branded products,
according to IRI. Retailers benefit from having a range of private label and
branded products as well as from the customer affinity developed from the
reinforcement of the retailer's own brand. Other non-retailing customers find it
more efficient to source products from a private label manufacturer than to
produce the products themselves. Both types of customers often choose private
label bottled water producers on the basis of price, consistent product quality,
packaging capability, distribution capability and customer service.
Consolidation. The trend toward consolidation in the bottled water
industry is evidenced by the reduction in the number of bottled water filling
locations and the corresponding increase in volume produced at most locations
over the past ten years. According to Beverage Marketing, in 1996 there were
approximately 350 filling locations in the United States versus approximately
425 in 1986, a decrease of 17.6%. The number of filling locations with sales
over $75 million doubled to eight from 1995 to 1996. Larger companies are
seeking to expand their share within a market, obtain broader distribution and
achieve economies of scale with larger volume production.
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Products
Five Gallon Home and Office Delivery. Although the focus of the
Company's business will be the production and distribution of oxygen enriched
water, the Company had an active 5 gallon home and office delivery business. The
Company delivered spring, purified drinking and distilled waters to Pinellas
County businesses and homeowners. Pinellas County is located approximately six
miles west of Tampa, Florida on the west central coast of Florida. The Company
owned and rented state-of-the art water coolers, which it rented to its 5 gallon
customers. The Company began its 5 gallon distribution business in April, 1997.
The Company sold this business in March 1998.
Oxygen Enriched Bottled Water. The Company's primary focus will be the
production/distribution of oxygen enriched bottled water in small package, PET,
containers ranging in size from .5 liter to 1.5 liters. The points of purchase
will include grocery stores, convenience stores, gas station markets, health
spas and vitamin/health food stores.
The Company's oxygen enriched bottled water will be made by combining
super purified water and oxygen. Through water purification processing the
source water will be reduced to 1-2 parts per million of total dissolved solids
and then oxygen will be introduced through a unique, proprietary process. As a
point of reference, the Food and Drug Administration's (FDA) definition of
distilled water is 5 parts per million or less of total dissolved solids. As
such, the base water will be of distilled quality, although the distillation
process will not be used.
The Company's market research, undertaken by a non-affiliated research
firm, has indicated that no specific medical claims have to be made to consumers
with regard to its product. According to this market research the public will
readily accept the necessity and benefits of both highly purified water and
oxygen.
There are no significant competitors producing oxygen enriched bottled
water. The Company knows of two other entities that are attempting to produce
and distribute oxygen enriched bottled water. None of the well-established
traditional bottled water distributors has an oxygen enriched bottled water
product.
The Company's oxygen enriched water will contain approximately 40 parts
per million of oxygen. Normal water contains approximately 7 parts per million
of oxygen. As such, the Company's oxygen enriched bottled water will contain
approximately 500 - 600% more oxygen. Oxygen is literally the breath of life;
oxygen is a natural energizer and body purifier. Oxygen is odorless and
tasteless, as well as non-carbonated. As such, the Company's water tastes like a
fine premium bottled water - light and crisp. Oxygen does not produce the
unhealthy "jolt" associated with caffeine products. Rather, it is believed to
create a feeling of physical well-being and mental clarity. There can be no
assurance, however, that the Company's products will achieve consumer
acceptance. Consumer preferences are inherently subjective and subject to
change.
Oxygen is currently in the public view as an "additive" to a range of
consumer products. There are currently oxygen bars in Toronto, New York City and
the Los Angeles area. Oxygen in beverages has received recent widespread media
coverage through television, radio and print media.
Initially, the Company will not carbonate or flavor its water. After
the introductions of Company's oxygen enriched bottled water product, the
introduction of a new product with natural flavoring or carbonation will be
considered. Likewise, the Company will consider the infusion of beneficial
herbs. The Company will also consider the production of super oxygen enriched
sports drinks, providing even higher levels of oxygen, to be marketed at a
higher price. The Company will utilize a distinctive bottle and label for its
water products.
Strategy
The Company's objective is to build a product enriched water in
Florida, concentrating on the Tampa area, and then expand nationally. Aspects of
the Company's strategy include the following.
The Company intends to enter into distribution agreements with 2-4
non-affiliated partners. No distribution agreements have been entered into as of
the date of this prospectus. The Company intends to use these distributors, as
well as its own production/distribution facility, as operational models. The
Company then intends to expand into multiple markets.
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The Company's oxygen enriched small packaged bottled water product will
primarily be sold through retail outlets, including convenience stores, gas
station markets, grocery stores, health food stores, and health spas. However,
secondary distribution will be effected through vending and private labeling.
Neither vending nor private labeling have the attendant costs of direct
retailing, while they do have the benefit of increasing the production volume
and thereby increasing the production margins.
Although the Company will distribute its own product in certain areas,
primarily the Company will sell to qualified third party distributors. These
third party distributors will have the right to distribute to retail outlets in
defined geographic areas. A large number of potential distributors have already
contacted the Company regarding potential distribution of its oxygen enriched
bottled water. The Company is discussing distribution possibilities at this time
but has no contracts for distribution.
Production
The three components of production are the building, the water
processing and bottling equipment, and the labor force.
Building. The Company currently owns a 10,800 sq. foot building located
on 2.1 acres in Clearwater. The Company has already completed the remodel to
utilize this building as a bottling and distribution facility. Major Building
Company, a regional building contractor, completed the remodel at a cost of
$561,000. The building is currently encumbered with a mortgage of $3,000.
Management believes, based on preliminary discussions with mortgage lenders,
that a $750,000 loan can be obtained on the property on a 30-year amortization,
with a likely monthly payment of $6,500. However, the Company has not yet
decided whether it will pursue mortgage financing, and no loan commitment or
interest rate lock has been entered into.
Equipment. The Company has investigated and inspected various equipment
to comprise various sized plants. The equipment can be divided into two general
categories - water processing and bottling. The water processing equipment will
not vary significantly from plant to plant, while the bottling equipment will
vary depending on the size of the plant to be constructed. A medium size plant
is capable of producing 3,200 cases per 8 hour shift, while running at 80%
capacity. The Company has received all of the equipment.
Water processing and bottling equipment for a medium size plant costs
approximately $750,000. These costs include shipping, installation and initial
technical training. The equipment, including material handling equipment,
bottling and labeling equipment, conveyor systems and water treatment systems,
was received and installed in April, 1998.
Labor Force
The larger and faster the bottling line, the less manpower is required
due to increased automation. In general, the bottling facility will require four
employees per shift.
Water Sources
Under FDA guidelines, bottled water must contain fewer than 500 parts
per million ("ppm") in total dissolved solids. Varying amounts of solids provide
different tastes to water. The Company uses FDA and International Bottled Water
Association approved water sources.
Upon delivery to the Company's facilities, water is filtered through
0.2 micron filters and then ozonated during storage in stainless steel storage
tanks. Ozone is an unbalanced form of oxygen which, unlike regular oxygen, kills
bacteria and micro-organisms 3,000 times faster than chlorine. Unlike chlorine,
ozone naturally breaks down to simple oxygen in a few hours and leaves no traces
or residues. At the Clearwater facility, the source water runs through a number
of filtration, ion exchange, and reverse osmosis processes by which it is
reduced to a very pure 1-2 parts per million of total dissolved solids. Water is
oxygenated by first removing dissolved gasses from the water following which
medical grade oxygen is infused through a proprietary process. The water is then
piped to the clean room bottling area where the various products are filled and
capped. The clean room is filled and pressurized with air from two high-volume
HEPA (High-Efficiency Particulate Air) air handlers that filter 99.97% of
particulates out of the air.
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The manufacturing process is designed to be highly automated. Bottles
are mechanically de-palletized, cleaned, rinsed, filled and capped. The bottles
are automatically labeled, tamper banded, assembled and packed in cases. After
palletizing and stretch wrapping, the product is either loaded directly onto a
truck for immediate shipment or is stored in a warehouse for future shipment.
Most products are shipped within 48 to 72 hours after production via outside
carriers.
The Company will maintain exacting internal quality control standards.
Each batch of water will be tested according to FDA and International Bottled
Water Association standards.
Competition
The bottled water industry is highly competitive. According to
"Beverage Marketing", there are approximately 350 bottled water filling
locations in the United States with sales increasingly concentrated among the
larger firms. According to "Beverage Marketing", the ten largest bottled water
companies accounted for approximately 58.4% of wholesale dollar sales in 1996.
Nearly all of the Company's competitors are more experienced, have greater
financial and management resources and have more established proprietary
trademarks and distribution networks than the Company. On a national basis, the
Company competes with bottled water companies such as The Perrier Group of
America, Inc. (which includes Arrowhead Mountain Spring Water, Poland Spring,
Ozarka Spring Water, Zephyrhills Natural Spring Water, Deer Park, Great Bear and
Ice Mountain) and Great Brands of Europe (which includes Evian Natural Spring
Water and Dannon Natural Spring Water). The Company also competes with numerous
regional bottled water companies located in the United States and Canada. Aqua
Clara has chosen to compete by focusing on innovative packaging, customer
service and pricing.
Seasonality
The market for bottled water is seasonal, with approximately 70% of
sales taking place in the seven months of April through October inclusive. As a
result of seasonality, the Company's staffing and working capital requirements
will vary during the year.
Trademarks
The Company has registrations in the U.S. Patent and Trademark Office
for the trademarks that it uses, including Aqua Clara. The Company believes that
its common law and registered trademarks have significant value and goodwill and
that some of these trademarks are instrumental in its ability to create demand
for and market its products. There can be no assurance that the Company's common
law or registered trademarks do not or will not violate the proprietary rights
of others, that they would be upheld if challenged or that the Company would, in
such an event, not be prevented from using the trademarks, any of which could
have an adverse effect on the Company.
Regulation
The Company's operations are subject to numerous federal, state and
local laws and regulations relating to its bottling operations, including the
identity, quality, packaging and labeling of its bottled water. The Company's
bottled water must satisfy FDA standards, which may be periodically revised, for
chemical and biological purity. The Company's bottling operations must meet FDA
"good manufacturing practices," and the labels affixed to the Company's products
are subject to FDA restrictions on health and nutritional claims. In addition,
bottled water must originate from an "approved source" in accordance with
federal and state standards.
State health and environmental agencies, such as the Florida Department
of Agriculture and consumer services, also regulate water quality and the
manufacturing practices of producers.
The Company's current products satisfy Florida and Federal requirements
and its proposed products will satisfy all applicable state and federal
requirements in all 50 states. These laws and regulations are subject to change,
however, and there can be no assurance that additional or more stringent
requirements will not be imposed on the Company's operations in the future.
Although the Company believes that its water supply, products and bottling
facilities are and will be in substantial compliance with all applicable
governmental regulations, failure to comply with such laws and regulations could
have a material adverse effect on the Company.
Legal Proceedings
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The Company is not a party to any material legal proceedings, except as
set forth below. On November 5, 1997 Life International Products, Inc., a
competitor of the Company, filed a complaint in the Circuit Court of Collier
County Florida against the Company and Corporate Relations Group alleging false
and unfair competition under the Lanham Act, false and misleading advertising
under Florida law and common law unfair competition. The Complaint seeks
unspecified monetary damages and injunctive relief. In summary, the complaint
alleges that the Company has made claims about its current and future business
plans. The Company believes that the lawsuit is wholly without merit, and is
procedurally defective in that the plaintiffs lack standing to file suit, among
other defects. The company filed a motion to dismiss, which was granted on
February 17, 1998. The motion was granted without prejudice so Life
International may refile in the future. Life International refiled the lawsuit
and on November 4, 1998 the Company again filed a motion to dismiss.
Civil litigation in the Circuit Court of the Sixth Judicial Circuit in
and for Pinellas County, Florida, was filed by JOHN C. PLUNKETT, RAND L. GRAY,
AND ROBERT GUTHRIE, on behalf of themselves and all other similarly situated
stockholders of AQUA CLARA BOTTLING & DISTRIBUTION, INC., a Colorado
corporation, Defendants, Case No:98-7528CI-007. This case was a three-count
action consisting of a demand for Injunctive Relief, Declaratory Action, and a
count for Shareholder Inspection of Documents. The case was filed on November
18, 1998. A hearing was held on November 19, 1998 which resulted in an "Order on
Temporary Injunctive Relief", and a subsequent "Order of Referral to Mediation",
dated November 20, 1998. During the litigation, John McAvoy, President and
Chairman of the Board resigned, the three named plaintiffs resumed their
position on the board, and the case was voluntarily dismissed on December 15,
1998. A final Disposition Form was filed with the clerk of the court December
21, 1998.
Civil litigation in the County Court of the Sixth Judicial Circuit in
and for Pinellas County, Florida, was filed by SGN, Inc., Plaintiff, vs. Aqua
Clara Bottling & Distribution, Inc., a Colorado corporation, Defendant, Case No:
98-2478-SP-19-F. It is a two-count complaint served on December 28, 1998,
consisting of Open Account and Breach of Contract. The Plaintiff seeks payment
on alleged open invoices for commissions due in the amount of $4,900.00 further
alleging that the invoices are the result of contract for sales representation
throughout the East Coast of the United States. At this writing, the underlying
merits of the complain have not been reviewed. A responsive pleading is due on
this case on or before twenty days from the date served upon the corporation.
Civil litigation in the Circuit Court of the Eighteenth Judicial
Circuit, in and for Seminole County, Florida, was filed by Mainstream
Construction Group, Inc., a Florida corporation, Plaintiff, vs. Aqua Clara
Bottling & Distribution, Inc., Defendant, Case No: 98-2336-CA-15-B. The
complaint is a two-count complaint for Breach of an Oral Contract and Quantum
Merit. The Plaintiff seeks $236,938.00 alleging Aqua Clara filed to pay for
improvements to the corporation's production and office building. An answer was
not filed and a clerk's default was entered. Subsequent to the entry of the
clerk's default, a Defendant's Motion to Dismiss These Proceedings and Compel
Arbitration, or Alternatively to Enlarge the Time for Defendant's Responsive
Pleading and to Deny Plaintiff's Motions for Default and for Entry of Final
Judgment, dated December 11, 998. The motion further alleges that there is a
written contract, which requires arbitration. Aqua Clara disputes the amount
owed. Aqua Clara may be liable for $141,000.00 of improvements to the property;
the disputes appears to be centered on contested change orders.
Civil litigation is pending concerning allegations and representations
made by Gerald Huggins and Donald Couture, two individuals that were appointed
to the Aqua Clara board by former President and Chairman of the Board, John
McAvoy. These appointments were contested as further asserted in the litigation
set forth above styled JOHN C. PLUNKETT, RAND L. GRAY, AND ROBERT GUTHRIE, on
behalf of themselves and all other similarly situated stockholders of AQUA CLARA
BOTTLING & DISTRIBUTION, INC., a Colorado corporation, Plaintiffs vs. AQUA CLARA
BOTTLING & DISTRIBUTION, INC., a Colorado corporation, Defendants, Case No: 98-
7528CI-007. However, Mr. Couture and Huggins have asserted that they were
properly appointed to the reconstituted board and that they are current board
members. The board of Aqua Clara consisting of Plunkett, Rand and Guthrie have
taken the position that they are not. It is the opinion of litigation counsel
for Aqua Clara, Michael C. Berry, and Associates, P.A. that neither Couture nor
Huggins are board members. Any representations and actions made by either
Couture and Huggins may force Aqua Clara to seek the appropriate relief in court
against either Couture or Huggins or both as it would be deemed interference
with the ongoing business of Aqua Clara.
Employees
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The Company currently employs approximately 11 full-time employees,
none of whom are covered by collective bargaining agreements. During peak
production periods, the Company supplements its full-time work force with
part-time employees. The Company believes that its relations with its employees
are good.
MANAGEMENT
The following table sets forth certain information with respect to the
executive officers and directors of the Company. Each director holds such
position until the next annual meeting of the Company's shareholders and until
his respective successor has been elected and qualifies. All officers devote
full time to the Company. Any of the Company's officers may be removed with or
without cause at any time by the Company's Board of Directors.
Directors and Executive Officers
The members of the Board of Directors of the Company serve until the
next annual meeting of stockholders, or until their successors have been
elected. The officers serve at the pleasure of the Board of Directors. The
following are the directors and executive officers of the Company.
John C. (Jack) Plunkett, 49, was a Director and the Vice
President/Chief Operating Officer and Secretary
of the Company since November 1, 1996. In December 1998 he was elected as
President. Mr. Plunkett is a graduate
of the U. S. Naval Academy where he received a degree in naval engineering in
1970. Since 1984 Mr. Plunkett has
served as a consulting engineer with Science Applications International
Corporation, a two-billion dollar per year
employee-owned consulting firm in the defense, space, energy, medical and
transportation fields. Mr. Plunkett was
responsible for business development and project management of multi-million
dollar contracts. Additionally, Mr.
Plunkett is the principal in Sea Trails Shoppes, Inc., a commercial real estate
development consisting of retail, office
and restaurant space and since 1995 has served as President and Managing Partner
of this entity.
Rand L. Gray, 50, has been Chief Financial Officer since July 1997. Mr.
Gray is a graduate of Western Michigan University and attended Notre Dame
University Graduate School. Mr. Gray served as Chief Financial Officer/Senior
Vice President with Felicione International, a wholesale fish distributor, from
1990 to 1996, and was Executive Vice President/Chief Financial Officer with
Behstev Inc., International, a modified asphalt manufacturer and distributor,
from 1985 to 1989. From 1979 to 1985 he was a Divisional Vice
President/Controller for Diamond International (Fortune 500), a printed products
manufacturer and distributor; and Litton Industries (Fortune 400), a printed
products manufacturer and distributor and as Vice President of Finance/CFO for
D.H.C., Inc., a manufacturer and distributor of modular homes. Mr. Gray has been
an accountant and business manager for over twenty-five years.
Robert Guthrie, 74, has served as Director of the Company since May,
1997. Mr. Guthrie is an attorney
licensed to practice in Florida with affairs in Seminole, Florida. Mr. Guthrie
also serves as a Director of the Rivellas
Community Bank.
The Company also retains consultants with experience in the bottled
water industry experience on the issues of processing and bottling. All
consulting contracts are oral and at will and the total amount incurred the
consulting fees is less than $20,000.
On January 20, 1998 the Company entered into one-year employment
agreements with each of Messrs. John A. McAvoy, Plunkett and Gray as amended,
providing for salaries of $77,000 each. Messrs. Plunkett & Gray's employment
agreements were extended for an additional year. Mr. McAvoy and Mr. Plunkett
have orally agreed and Mr. Gray has agreed in his written employment contracts
to defer $25,000 of such compensation until such time as the Company's cash flow
permits. The Company also agreed to grant stock options to Mr. Plunkett and Mr.
Gray equivalent to those granted to Mr. McAvoy. In addition the Company has
issued to Messrs. Plunkett and Gray, 500,000 and 250,000 shares, respectively,
in connection with a prior consulting agreements approved by the Board of
Directors in December, 1996. Mr. John A. McAvoy, the Company's former president,
resigned on November 24, 1998. Pursuant to the terms of the original Amended
Employment Agreements, dated January 20, 1998, the Company has reduced the
accrued and unpaid 1998 salaries of Messrs. Plunkett ($50,000) and Gray
($38,000) to promissory notes and secured their interest with the assets of the
Company. The promissory notes, dated December 15, 1998 are demand instruments,
at 5% simple interest. A blanket Security Agreement on all of the Company's
assets and a UCC filing on the Company's non-realty assets secures each note. A
second mortgage on the
17
<PAGE>
Company's realty will also secure each note. Each note, security agreement, UCC
filing and second mortgage includes any future accrued and unpaid salary.
18
<PAGE>
Executive Compensation
The following table sets forth the cash compensation of the Company's
executive officers and directors during each of the last three fiscal years. The
remuneration described in the table does not include the cost to the Company of
benefits furnished to the named executive officers, including premiums for
health insurance and other benefits provided to such individual that are
extended in connection with the conduct of the Company's business. The value of
such benefits cannot be precisely determined, but the executive officers named
below did not receive other compensation in excess of the lesser of $25,000 or
10% of such officer's cash compensation.
<TABLE>
<CAPTION>
Summary Compensation Table
ANNUAL COMPENSATION LONG TERM COMPENSATION
-
-
-
-
-
-
-
-
-
-
Name and Other Annual Awards Payouts All
Principal Position Year Salary Bonus Compensation Other
Restricted Options/ LTIP
Stock ($)SARs(#) Payouts ($)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
John S. McAvoy 1998 $31,875 0 0 0 0 0 0
President and CEO 1997 0 0 0 0 0 0
1996 0 0 0 0 0 0 0
Rand Gray 1998 $18,000 0 0 125,000 0 0 0
Chief Financial Officer 1997 0 0 0 0 0 0 0
1996 0 0 0 0 0 0 0
John C. Plunkett 1998 $31,875 0 0 250,000 0 0 0
Vice President 1997 0 0 0 0 0 0
Chief Operating Officer 1996 0 0 0 0 0 0 0
</TABLE>
19
<PAGE>
PRINCIPAL SHAREHOLDERS
The following table sets forth information relating to the beneficial
ownership of Company Common Stock as of the date of this Prospectus by (I) each
person known by the Company to be the beneficial owner of more than 5% of the
outstanding shares of Common Stock (ii) each of the Company's directors and
executive officers, and (iii) all of the Company's directors and executive
officers as a group. The Percentage After Offering assumes the conversion of all
shares of Series A Preferred into 2,307,690 shares of common stock and the
exercise of all warrants and options, but not the sale of shares by Messrs.
Plunkett, Gray, Vinton or Zweig or Corporate Relations Group, Inc. See "Selling
Shareholders".
<TABLE>
<CAPTION>
Percentage Percentage
Name and Address(1) Common Stock Before Offering After Offering
<S> <C> <C> <C>
John S. McAvoy 1,837,900 28.1% 20.0%
1315 Cleveland Street
Clearwater, Florida 33755
John C. Plunkett 580,000 8.9% 6.3%
1315 Cleveland Street
Clearwater, Florida 33755
Rand L. Gray(2) 250,000 3.8% 2.7%
1315 Cleveland Street
Clearwater, Florida 33755
Robert Guthrie 25,000 .4% .3%
1315 Cleveland Street
Clearwater, Florida 33755
Corporate Relations Group, Inc.(3) 350,000 5.2% 3.8%
1801 Lee Road, Suite 301
Winter Park, Florida 32709
Thomas G. Vinton 125,000 1.9% 1.4%
3558 Mill Road
Gainsville, Ga. 30504
Dennis J. Zweig 125,000 1.9% 1.4%
7560 Bridgegate Court
Atlanta, Ga. 30350
All Directors and Executive 2,692,900 41.3% 29.3%
Officers as a Group (4 persons)
</TABLE>
(1) Unless otherwise noted below, the Company believes that all persons
named in the table have sole voting and investment power with respect
to all shares of Common Stock beneficially owned by them. For purposes
hereof, a person is deemed to be the beneficial owner of securities
that can be acquired by such person within 60 days from the date hereof
upon the exercise of warrants or options or the conversion of
convertible securities. Each beneficial owner's percentage ownership is
determined by assuming that any such warrants, options or convertible
securities that are held by such person (but not those held by any
other person) and which are exercisable within 60 days from the date
hereof, have been exercised.
(2) Includes 230,000 shares held jointly with his spouse and 20,000 shares
held by the children of Mr. and Mrs.
Gray.
(3) Includes options to purchase 250,000 shares.
20
<PAGE>
CERTAIN TRANSACTIONS
Mr. McAvoy founded Pocotopaug Investment, Inc. ("Pocotopaug") as a
Florida Corporation in August 1995.
(Pocotopaug means "Clearwater" in a local Indian dialect). Pocotopaug was
capitalized in 1996 by $323,500 in
bridge loans. Jack C. Plunkett, an officer and director, invested $20,000 in
bridge loans.
Aqua Clara Bottling and Distribution, Inc., was incorporated on July
29, 1996 in the State of Colorado and issued 835,000 shares of common stock
(including 192,650 shares to Mr. McAvoy) and 27,500 shares of preferred stock to
various investors for total consideration of $3,167.50. The preferred stock has
since been retired. The offering was made under Rule 504 as an offering exempt
from registration under the Securities Act of 1933.
On November 1, 1996, the director and officer of Aqua Clara, Danny L.
Wey, resigned and was replaced by Messrs. McAvoy and Plunkett. On November 23,
1996, Aqua Clara issued 1,645,250 shares of common stock to Mr. McAvoy in
exchange for all of the outstanding shares of Pocotopaug and issued 44,872
shares to Danny L. Wey. Mr. Wey subsequently has sold all of his unrestricted
shares on the public market and continues to hold the remaining 104,706
restricted shares held by him pursuant to Rule 144. Unless otherwise noted, all
references to the Company in this Prospectus include the consolidated entity of
Aqua Clara and Pocotopaug.
On March, 1997, the Pocotopaug bridge investors exchanged their
$323,500 in convertible debt into 796,500 shares of Company common stock under
Rule 504, including Mr. Plunkett who received 80,000 shares. In December 1996,
the Company issued 1,029,500 shares to 7 persons for services rendered valued at
$100,950. From December 27, 1996 to March 1997, the Company issued 1,283,000
shares of common stock in an offering under Rule 504 for $.50 per share, to 35
persons.
In December, 1997, the Company issued 20,000 restricted shares of
common stock to Olympus Capital for consulting services rendered prior to
September 30, 1997. In October 1997, the Company paid $375,000 and agreed to
issue 75,000 restricted shares to Olympus Capital, Inc. for the purpose of
assisting the Company in identifying investors willing to invest capital into
the Company in connection with the $2,500,000 private placement Management has
netted theses costs against the proceeds and has allocated a portion of the net
proceeds as a cost of the 75,000 shares issued.
In September, 1997, the Company issued 200,000 shares of restricted
common stock to each of Gulf Atlantic Publishing and Arrow Marketing for
advertising services and creative design of marketing materials respectively,
and issued 25,000 shares for services to each of Robert Guthrie (a director) and
Richard Trnouski.
Gulf Atlantic Publishing and Arrow Marketing purchased these 400,000
shares at $.25 per share pursuant to an option agreement.
On November 17, 1997 the Company entered into a Lead
Generation/Corporate Relations Agreement with Corporate Relations Group ("CRG")
pursuant to which the Company has paid CRG $400,000 and by which the Company has
agreed to pay CRG an additional $400,000 upon the Company raising its next
tranche of $2,500,000. Additionally, the Company agreed to issue options to
purchase 250,000 shares of common stock under the following terms:
<TABLE>
<CAPTION>
Number of Shares Exercise Price Expiration Date
<C> <C> <C> <C>
50,000 $ 3.50 11/17/98
50,000 4.20 11/17/99
50,000 4.70 11/17/00
50,000 5.60 11/17/01
50,000 7.00 11/17/02
</TABLE>
At this time the Company does not anticipate requiring any additional
financing, and under the terms of the agreement the Company would therefore have
no further monetary obligations to CRG.
21
<PAGE>
Subsequent to year-end the Company entered into two subscription
agreements to issue 1,000,000 shares for $1,000,000. Under the terms of these
agreements, the $1,000,000 is due in four monthly installments beginning in
August 1998. The remaining three monthly installments begin the latter of
September 1, 1998 or 30 days subsequent to the effective date of the Company's
registration statement filed with the SEC. The first installment of $125,000 was
paid by each of the two purchasers, Thomas G. Vinton and Dennis Zweig in August
1998. In October 1998 these two purchasers, and the Company agreed to cancel the
subscriptions to purchase the remaining 750,000 shares, and the related
installment notes were cancelled.
The Company agreed to issue 100,000 restricted shares to CRG, such
shares to be returned should the Company file and cause to be effective a
registration statement for the shares underlying the options within 120 days of
the date of the agreement. CRG was also granted piggyback rights for these
shares which have been escrowed with the Company's legal counsel. Under its
agreement with the Company, CRG has agreed to perform financial public relations
services for the Company, consisting of disseminating information about the
Company to the investing public, for $400,000 paid in cash in December 1997.
Under the Core Broker program undertaken by CRG, agreement, the Company will be
required to host a due diligence trip for up to ten retail brokers who
demonstrate an interest in the Company's Common Stock.
Mr. John McAvoy has loaned the Company amounts for working capital. The
loans are represented by promissory notes due on demand and bearing interest of
6%. None of the loans have been repaid. The total owed is $15,000 with $1,500
loaned on March 15, 1996, $9,000 loaned on April 17,1996, $4,000 loaned on July
19, 1996, and $500 loaned without a formal promissory note.
During October through December, 1998 the Companyr eceived emergency
loans from Mesrs. Plunkett ($7,500), Gray ($8,000) and Guthrie ($5,000), which
amounts were reduced to promissory notes and secured with the assets of the
Company. The promissory notes, dated December 15, 1998 are demand instruments,
at 5% simple interest. A blanket Security Agreemetn on all of the Company's
assets and a UCC filing on the Company's non-realty assets secures each note. A
second mortgage on the Company's realty will also secure each note. Each note,
security agreement, UCC filing and second mortgage includes any future
advancement of additional funds.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
The Company's former independent accountant BDO Seidman, LLP ("BDO
Seidman") resigned from that capacity on December 29, 1997. The report by BDO
Seidman on the financial statements of the Company dated November 10, 1997,
including a balance sheet as of March 31, 1997 and the statements of operations,
cash flows and statement of stockholders' equity for the eight months ended
March 31, 1997 and the period inception (August 17, 1995) through March 31, 1997
did not contain an adverse opinion or a disclaimer of opinion, or was qualified
or modified as to uncertainty, audit scope or accounting principles, except as
to the uncertainty as to whether the Company would continue as a going concern.
During the period covered by the financial statements through the date of
resignation of the former accountant, there were no disagreements with the
former accountant on any matter of accounting principles or practices, financial
statement disclosure, or auditing scope or procedure. However, subsequent to the
issuance of BDO Seidman's audit report, the Company included the audit report,
together with unaudited financial statements of the Company as of and for the
six months ended October 4, 1997, in a private placement memorandum relating to
the offering of the Series A Preferred Stock. BDO Seidman did not consent to the
use of the audit report in the private placement memorandum, and did not have
the opportunity to review the private placement memorandum or the unaudited
financial statements until after the close of the offering, at which time BDO
Seidman indicated for the Company's President that certain prepaid expenses were
incorrectly capitalized as of October 4, 1997. The Board of Directors did not
itself discuss this issue of the capitalization of expenses with BDO Seidman.
BDO Seidman resigned as a result of what it considered to be an unauthorized
dissemination of its audit report coupled with the inaccuracies in the unaudited
financial statements. The Company did not disagree with BDO Seidman as to the
inaccuracies and expensed the prepaid expenses in question, which were included
in the $488,700 expensed for consulting services in the year ended April 4,
1998. BDO Seidman has been advised of the restatement. A letter from the former
independent accountant for the Company is attached as an exhibit to the
Registration Statement of which this Prospectus is a part. There have been no
other transactions similar to the above transaction in disagreement. On December
30, 1997 the Company engaged Pender Newkirk & Company as its new independent
accountants. Pender Newkirk & Company had no discussions with BDO Seidman on the
classification of expenses.
22
<PAGE>
SELLING SHAREHOLDERS
The shares of Common Stock of the Company offered by the Selling
Shareholders (the "Shares") will be offered at market prices, as reflected on
the Electronic Bulletin Board, or on the Nasdaq Small Cap Market if the Common
Stock is then traded on Nasdaq. The shares include 1,202,500 shares currently
outstanding as well as shares being offered by the holders upon conversion of
the Series A Preferred and 350,000 shares issuable upon exercise of warrants or
options. The aggregate number of shares offered for resale upon conversion of
the Series A Preferred will be based on the conversion rate in effect at the
time of conversion. It is anticipated that registered broker-dealers will be
allowed the commissions which are usual and customary in open market
transactions. There are no other arrangements or understandings with respect to
the distribution of the Common Stock.
The number of shares of Common Stock issuable upon conversion of each
of the 2,500 shares of Series A Preferred, and the consequent number of shares
of Common Stock available for resale under this Prospectus, is based upon a
conversion ratio which is $1,000 divided by the lower of (a) 65% of the closing
bid price of the Common Stock on the electronic Bulletin Board NASDAQ averaged
over the five trading days immediately prior to the date of conversion, or (b)
$1.875. Based upon a market price of $1.75 and an assumed conversion price of
$1.1375 per share, 879.12087 shares of Common Stock would be issuable per share
of Series A Preferred, plus 5% additional shares issuable since the Registration
Statement of which this Prospectus is a part was not declared effective by April
15, 1998. See "Description of Securities - Preferred Stock." Except as noted,
the Selling Shareholders do not own any Common Stock except as registered hereby
and will own no shares after the completion of the offering. The relationship,
if any, between the Company and any Selling Stockholder is set forth below. The
Percentage Before Offering has been computed in accordance with Rule 13d-3 of
the Securities Exchange Act of 1934, by dividing the number of shares held by
each Selling Shareholder by the sum of the number of shares outstanding
(6,521,622 shares) and the number of shares, if any, issuable to the Selling
Shareholder within 60 days (but assuming no issuances to any other person).
23
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares of Number of Percent
Series A Common Shares Before
Shareholder Preferred Offered Offering
<S> <C> <C> <C>
Olympus Capital, Inc.(1) 200 279,615 4.2%
Barry Seidman 500 461,538 6.6%
Arnold Zousmer 500 461,538 6.6%
James W. Spratt II(1) 25 23,077 *
Hassan Abdul SA(2) 250 230,769 3.4%
C.A. Opportunidad SA(2) 250 230,769 3.4%
Joseph Sloves 25 23,077 *
Philip Holstein, Jr.(3) 20 18,461 *
Castle Creek Valley Ranch
Defined Benefit Pension Plan(3) 20 18,461 *
Peak Financial, Inc. 30 27,693 *
Lee & Rick's Oyster Bar #2, Inc. 50 46,154 *
Bruce R. Knox 75 69,231 *
Frederic A. Lenz 75 69,231 *
Tom Richardson 15 13,846 *
Charles Kerr 15 13,846 *
Passy Holding 150 138,461 2.1%
James Skalko 200 184,615 2.8%
Ed Leinster 100 92,308 1.4%
Corporate Relations Group, Inc.(4) 350,000 5.2%
Edward Foster 5,000 *
Richard Foster 2,500 *
David M. Smith(7) 100,000 1.5%
Jack C. Plunkett(5) 500,000 8.9%
Rand L. Gray(6) 250,000 2.7%
Thomas G. Vinton 125,000 1.4%
Dennis Zweig 125,000 1.4%
TOTAL 2,500 3,860,190 42.1%
* Less than 1%
</TABLE>
(1) The controlling shareholder of Olympus Capital, Inc. is James W.
Spratt III, the son of James W. Spratt
II. Includes 95,000 shares of Common Stock already held by Olympus
Capital, Inc.
(2) Jose Antonio Gomez is the principal shareholder of Hassan Abdul SA and
C.A. Opportunidad, S.A.
(3) Mr. Holstein is the trustee of the Castle Creek Valley Ranch Defined
Benefit Pension Plan.
(4) Messrs. Joe H. Landis and Paul Serluco are the officers of Corporate
Relations Group, Inc. Includes
100,000 shares held in escrow (see "Certain Transactions") and options
to purchase 250,000 shares, as follows:
<TABLE>
<CAPTION>
Number of Shares Exercise Price Expiration Date
<S> <C> <C> <C> <C>
50,000 $ 3.50 11/17/98
50,000 4.20 11/17/99
50,000 4.70 11/17/00
50,000 5.60 11/17/01
50,000 7.00 11/17/02
</TABLE>
(5) Mr. Plunkett owns 80,000 shares not offered hereby.
(6) Includes 230,000 shares held by Mr. Gray and his spouse and 20,000
shares held by their minor children.
(7) Includes 100,000 shares issuable upon exercise of options at $1.00 per
share until July 1, 1999.
24
<PAGE>
DESCRIPTION OF SECURITIES
Common Stock
The Company's Articles of Incorporation authorizes the issuance of
50,000,000 shares of Common Stock, no par value per share, of which 6,521,622
shares were outstanding as of September 16, 1998, including 100,000 shares held
in escrow. See "Certain Transactions." The Company has no plans to sell
additional shares of common stock at this time, but reserves the right to do so
to meet future operating requirements. Holders of shares of Common Stock are
entitled to one vote for each share on all matters to be voted on by the
stockholders. Holders of Common Stock have no cumulative voting rights. Holders
of shares of Common Stock are entitled to share ratably in dividends, if any, as
may be declared, from time to time by the Board of Directors in its discretion,
from funds legally available therefor. In the event of a liquidation,
dissolution or winding up of the Company, the holders of shares of Common Stock
are entitled to share pro rata all assets remaining after payment in full of all
liabilities and the liquidation preference to holders of Series A Preferred
Stock. Holders of Common Stock have no preemptive rights to purchase the
Company's common stock. There are no conversion rights or redemption or sinking
fund provisions with respect to the common stock. All of the outstanding shares
of Common Stock are, and the shares of Common Stock will be, when issued and
delivered, fully paid and non-assessable, including Shares issuable upon
conversion of the Preferred Stock.
Preferred Stock
The Company's Articles of Incorporation authorize the issuance of
5,000,000 shares of preferred stock, no par value, of which 2,500 shares of
Series A Preferred Stock are outstanding. The Series A Preferred Stock is
convertible, at the option of the holder, into shares of common stock at an
initial Conversion Rate, subject to adjustments, at a number of shares of Common
Stock equal to $1,000 divided by the lower of (I) Sixty-Five Percent (65%) of
the average Market Price of the Common Stock for the five trading days
immediately prior to the Conversion Date (defined below) or (ii) $1.875,
increased proportionally for any reverse stock split and decreased
proportionally for any forward stock split or stock dividend. Market Price for
any date shall be the closing bid price of the Common Stock on such date, as
reported by the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), or the closing bid price in the over-the-counter market if
other than Nasdaq. The holders of Series A Preferred have no voting rights, and
have a liquidation preference of $1,300 per share over the Common Stock.
Dividends on the Series A Preferred are payable at the rate of 8% per annum ($80
per share of Series A Preferred Stock) payable on each July 1, in either cash,
or in the option of the Company, Common Stock valued at the Conversion Rate. The
initial closing for the sale of the Series of Preferred Stock was on November
11, 1997. The holders of the Series A Preferred Stock have the right to receive,
at the time of conversion, additional penalty shares equal to (a) 5% if the
Company did not file a registration statement to register the underlying common
stock by January 15, 1998, (b) an additional 5% if the registration statement is
not declared effective by April 15, 1998, and (c) an additional 5% of the
Company does not deliver certificates representing the Common Stock within 5
days of the date of conversion. Since the registration statement of which this
Prospectus is a part was filed by January 15, 1998 but not declared effective by
April 15, 1998, the holders of Series A Preferred Stock are entitled to 5%
additional shares upon conversion.
The Company's Board of Directors has authority, without action by the
shareholders, to issue all or any portion of the authorized but unissued
preferred stock in one or more series and to determine the voting rights,
preferences as to dividends and liquidation, conversion rights, and other rights
of such series. The Company considers it desirable to have preferred stock
available to provide increased flexibility in structuring possible future
acquisitions and financings and in meeting corporate needs which may arise. If
opportunities arise that would make desirable the issuance of preferred stock
through either public offering or private placements, the provisions for
preferred stock in the Company's Articles of Incorporation would avoid the
possible delay and expense of a shareholder's meeting, except as may be required
by law or regulatory authorities. Issuance of the preferred stock could result,
however, in a series of securities outstanding that will have certain
preferences with respect to dividends and liquidation over the Common Stock
which would result in dilution of the income per share and net book value of the
Common Stock. Issuance of additional Common Stock pursuant to any conversion
right which may be attached to the terms of any series of preferred stock may
also result in dilution of the net income per share and the net book value of
the Common Stock. The specific terms of any series of preferred stock will
depend primarily on market conditions, terms of a proposed acquisition or
financing, and other factors existing at the time of issuance. Therefore, it is
not possible at this time to determine in what respect a particular series of
preferred stock will be
25
<PAGE>
superior to the Company's Common Stock or any other series of preferred stock
which the Company may issue. The Board of Directors may issue additional
preferred stock in future financings, but has no current plans to do so at this
time.
The issuance of Preferred Stock could have the effect of making it more
difficult for a third party to acquire a majority of the outstanding voting
stock of the Company.
The Company intends to furnish holders of its common stock annual
reports containing audited financial statements and to make public quarterly
reports containing unaudited financial information.
Transfer Agent
The transfer agent for the Common Stock is Jersey Transfer and Trust
Company, 201 Bloomfield Avenue, Verona, New Jersey 07044 and its telephone
number is (973) 239-2712.
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon for the
Company by Hand & Hand, a law corporation, Dana Point, California.
EXPERTS
The audited financial statements included in this Prospectus as of
April 4, 1998 and for the years ended April 4, 1998, March 31, 1997 and the
period Inception (August 17, 1995) to April 4, 1998 have been audited by Pender
Newkirk & Company, independent certified public accountants, to the extent and
for the periods set forth in their report thereon and are included in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
INDEMNIFICATION
The Company has adopted provisions in its articles of incorporation and
bylaws that limit the liability of its directors and provide for indemnification
of its directors and officers to the full extent permitted under the Colorado
General Business Act. Under the Company's articles of incorporation, and as
permitted under the Colorado General Business Act, directors are not liable to
the Company or its stockholders for monetary damages arising from a breach of
their fiduciary duty of care as directors. Such provisions do not, however,
relieve liability for breach of a director's duty of loyalty to the Company or
its stockholders, liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, liability for transactions
in which the director derived as improper personal benefit or liability for the
payment of a dividend in violation of Colorado law. Further, the provisions do
not relieve a director's liability for violation of, or otherwise relieve the
Company or its directors from the necessity of complying with, federal or state
securities laws or affect the availability of equitable remedies such as
injunctive relief or recision.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding that may result in a claim for indemnification by any director or
officer.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
26
<PAGE>
<PAGE>
Consolidated Financial Statements
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Periods August 17, 1995 (Date of Inception) through July 4, 1998
Independent Auditors' Report
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
<TABLE>
<CAPTION>
Contents
<S> <C>
Independent Auditors' Report on Consolidated Financial Statements...............................................1-2
Consolidated Financial Statements:
Consolidated Balance Sheet....................................................................................3
Consolidated Statements of Operations.........................................................................4
Consolidated Statements of Changes in Stockholders' Equity....................................................5
Consolidated Statements of Cash Flows.......................................................................6-7
Notes to Consolidated Financial Statements.................................................................8-19
</TABLE>
<PAGE>
<PAGE>
Independent Auditors' Report
Board of Directors
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary (A Development Stage Enterprise)
Largo, Florida
We have audited the accompanying consolidated balance sheet of Aqua Clara
Bottling & Distribution, Inc. and Subsidiary (a development stage enterprise) as
of April 4, 1998 and the related consolidated statements of operations, changes
in stockholders' equity, and cash flows for the years ended April 4, 1998 and
March 31, 1997. These consolidated financial statements are the responsibility
of the management of Aqua Clara Bottling & Distribution, Inc. and Subsidiary.
Our responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. These standards require that we plan and perform the audits to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Aqua Clara Bottling
& Distribution, Inc. and Subsidiary as of April 4, 1998 and the results of its
operations and its cash flows for the years ended April 4, 1998 and March 31,
1997 in conformity with generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared assuming
the Company will continue as a going concern. As discussed in Note 1 to the
consolidated financial statements, the Company has been in the development stage
since its inception on August 17, 1995. Realization of a major portion of the
assets is dependent on the Company's ability to meet
<PAGE>
<PAGE>
its future financing requirements, and the success of future operations. These
factors raise substantial doubt about the Company's ability to continue as a
going concern. Management's plans regarding these matters are also described in
Note 1 to the consolidated financial statements. The consolidated financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
Pender Newkirk & Company
Certified Public Accountants
Tampa, Florida
May 27, 1998, except for Note 11 as to which
the date is July 22, 1998
<PAGE>
<TABLE>
<CAPTION>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Balance Sheet
July 4,
April 4, July 4, 1998
1998 1998 Pro Forma(1)
(Unaudited) (Unaudited)
Assets
Current assets:
<S> <C> <C> <C>
Cash and cash equivalents $ 723,618 $ 108,991 $ 108,991
Accounts receivable, trade 18,192 18,192
Employee advances 17,691 777 777
Inventory 26,948 71,949 71,949
Prepaid assets 400,800 404,318 404,318
Total current assets 1,169,057 604,227 604,227
---------------------------------------------------------
Property, plant, and equipment, net of
accumulated depreciation 1,408,002 1,868,126 1,868,126
---------------------------------------------------------
Other assets:
Organizational costs, net of accumulated
amortization 23,194 21,753 21,753
Deposits and other assets 17,383 4,278 4,278
---------------------------------------------------------
Total other assets 40,577 26,031 26,031
---------------------------------------------------------
$ 2,617,636 $ 2,498,384 $ 2,498,384
=========================================================
</TABLE>
Read independent auditors' report. The accompanying notes are an integral part
of the consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
July 4,
April 4, July 4, 1998
1998 1998 Pro Forma(1)
(Unaudited) (Unaudited)
Liabilities and Stockholders' Equity Current liabilities:
<S> <C> <C> <C>
Accounts payable, trade $ 209,481 $ 337,005 $ 337,005
Accrued expenses 99,112 120,429 120,429
Note payable and current maturities of
long-term debt 34,135 34,135 34,135
Total current liabilities 342,728 491,569 491,569
---------------------------------------------------------
Long-term debt, less current maturities 279,514 275,344 275,344
---------------------------------------------------------
Stockholders' equity:
Preferred stock; no par value; 5,000,000
shares authorized; 2,500 shares issued
and outstanding 1,864,988 1,864,988 1,864,988
Common stock; no par value; 50,000,000
shares authorized; 6,271,622 shares
issued and outstanding (6,521,622
pro forma) 2,781,166 2,781,166 3,218,666
Additional paid-in capital 1,417,391 1,417,391 1,417,391
Deficit accumulated during development
stage (4,068,151) (4,332,074) (4,519,574)
---------------------------------------------------------
1,995,394 1,731,471 1,981,471
Subscriptions receivable ( 250,000)
---------------------------------------------------------
Total stockholders' equity 1,995,394 1,731,471 1,731,471
---------------------------------------------------------
$ 2,617,636 $ 2,498,384 $ 2,498,384
=========================================================
</TABLE>
(1) The pro forma reflects the effect of the subsequent event in which the
Company entered into a subscription agreement to issue 250,000 shares of
common stock for $250,000. These shares were subscribed to in an amount
below their fair value resulting in an effective dividend of $187,500.
3
<PAGE>
<TABLE>
<CAPTION>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Statement of Operations
Period
August 17,
1995
Year Ended Three Months Ended (Inception)
April 4, March 31, July 4, June 30, through
1998 1997 1998 1997 July 4, 1998
(Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C> <C>
Sales $ 135,710 $ $ 19,111 $ 14,785 $ 154,821
Cost of sales 227,146 29,864 81,303 307,010
Gross profit (141,436) (10,753) (66,518) (152,189)
General, administrative, and sales expenses 2,084,099 $ 315,985 249,809 523,603 2,721,538
Operating loss (2,225,535) (315,985) (260,562) (590,121) (2,873,727)
Interest expense (38,968) (50,542) (6,617) (22,165) (105,001)
Interest and other income 27,589 3,256 5,228 30,845
Gain on sale of assets 33,200 33,200
Net loss (2,203,714) (366,527) (263,923) (607,058) (2,914,683)
Dividends on preferred stock:
Amortization of intrinsic value of
conversion rights 1,417,391 1,417,391
Unpaid 8.0% cumulative dividend 59,178 49,863 109,041
Net loss applicable to common stock $ (3,680,283) $ (366,527) $ (313,786) $ (607,058) $ (4,441,115)
Net loss per common share $ (.62) $ (.13) $ (.05) $ (.11) $ (1.07)
Weighted average common shares outstanding 5,962,307 2,787,931 6,271,622 5,669,836 4,140,623
</TABLE>
Read independent auditor's report. The accompanying notes are an
integral part of the consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Statements of Stockholders' Equity
Periods August 17, 1995 (Date of Inception) through July 4, 1998
Deficit
Accumulated
Additional During
Preferred Stock Common Stock Paid-In DevelopmentSubscription
Shares Amount Shares Amount Capital Stage Receivable
Issuance of common stock,
<S> <C> <C> <C> <C> <C> <C> <C>
August 1995 500,000 $ 5,000 $ 15,250
Issuance of common stock
for services, August 1995 500,000 5,000 15,250
Net loss for period $ (80,519)
Balance,
March 31, 1996 1,000,000 10,000 30,500 (80,519)
Adjustment for recapitalization,
December 1996 1,525,122 33,668 (30,500)
Issuance of common stock for
services, December 1996 279,500 139,750
Common stock issued for conversion
of notes payable, March 1997 796,500 323,500
Common stock issued through Regulation
D offering, March 1997 1,283,000 525,498 $ (50,000)
Net loss for period (366,527)
Balance,
March 31, 1997 4,884,122 1,032,416 0 (447,046) (50,000)
Collection of subscription receivable,
April 1997 50,000
Issuance of common stock for
services and $100,000 1,312,500 1,501,250
Stock issued through Regulation
D offering, December 1997 2,500 $ 447,597 75,000 247,500 1,417,391
Amortization of the intrinsic
value of the conversion rights
of the preferred stock 1,417,391 (1,417,391)
Net loss for period (2,203,714)
Balance, April 4, 1998 2,500 $ 1,864,988 6,271,622 $ 2,781,166 $ 1,417,391 $(4,068,151) $0
Net loss for period (unaudited) (263,923)
Balance, July 4, 1998 (unaudited) 2,500 1,864,988 6,271,622 2,781,166 1,417,391 (4,332,074) 0
Pro forma effect of $1,000,000
subscription agreement (unaudited) 250,000 437,500 (187,500) (250,000)
Pro forma balance, July 4, 1998 (unaudited) 2,500 $ 1,864,988 6,521,622 $ 3,218,666 $ 1,417,391 $(4,519,574)$(250,000)
</TABLE>
Read independent auditors' report. The accompanying notes are an
integral part of the consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Statements of Cash Flows
Period
August 17,
1995
Year Ended Three Months Ended (Inception)
April 4, March 31, July 4, June 30, through
1998 1997 1998 1997 July 4, 1998
(Unaudited) (Unaudited) (Unaudited)
Operating Activities
<S> <C> <C> <C> <C> <C>
Net loss $ (2,203,714) $ (366,527) $ (263,923) $ (607,058) $ (2,914,683)
Adjustments to reconcile net loss to net
cash and cash equivalents used in
operating activities:
Gain on sale of assets (33,200) (33,200)
Depreciation and amortization 56,200 5,950 62,150
Issuance of common stock for services 1,326,250 139,750 300,000 1,486,250
(Increase) decrease in:
Accounts receivable (18,192) (11,673) (18,192)
Prepaid assets (399,709) 2,427 (3,518) (11,293) (400,800)
Inventory (26,948) (45,001) (3,000) (71,949)
Increase in:
Accounts payable 51,436 4,917 61,964 927 118,317
Accrued expenses 98,209 69,533 21,317 18,597 195,429
Total adjustments 1,072,238 216,627 22,520 293,558 1,338,005
Net cash and cash equivalents used by
operating activities (1,131,476) (149,900) (241,403) (313,500) (1,576,678)
Investing activities
Proceeds from sale of assets 133,925 133,925
Purchase of investments (51,004)
Proceeds from sale of investments 50,004 50,004
Purchase of property, plant, and equipment (942,892) (43,978) (399,073) (30,013) (1,495,442)
Decrease (increase) in other assets 7,930 (65,977) 30,019 21,225 (35,167)
Net cash and cash equivalents used by
investing activities (801,037) (59,951) (369,054) (8,788) (1,397,684)
Financing Activities
Proceeds from notes payable
and incurrence of convertible debt 55,475 136,000 393,975
Payments of long-term debt and obligations
under capital lease (53,113) (10,396) (4,170) (18,552) (68,508)
Net proceeds from issuance of stock 2,262,488 475,148 50,000 2,757,886
Net cash and cash equivalents provided
(used) by financing activities 2,264,850 600,752 (4,170) 31,448 3,083,353
</TABLE>
Read independent auditors' report. The accompanying notes are an
integral part of the consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Consolidated Statement of Cash Flows
Period
August 17,
1995
Year Ended Three Months Ended (Inception)
April 4, March 31, July 4, June 30, through
1998 1997 1998 1997 July 4, 1998
(Unaudited) (Unaudited) (Unaudited)
Net increase (decrease) in
<S> <C> <C> <C> <C> <C>
cash and cash equivalents 332,337 390,901 (614,627) (290,840) 108,991
Cash and cash equivalents,
beginning of period 391,281 380 723,618 391,281
Cash and cash equivalents,
end of period $ 723,618 $ 391,281 $ 108,991 $ 100,441 $ 108,991
Supplemental disclosures of cash flow information and noncash investing and
financing activities:
Cash paid for interest $ 38,967 $ 56,010 $ 6,617 $ 22,165 $ 105,001
</TABLE>
During the year ended March 31, 1997, $323,500 of convertible debt was
converted to 796,500 shares of
common stock.
During the period August 17, 1995 (date of inception) through April 4, 1998,
the Company entered into a purchase money mortgage of $300,000 in connection
with the acquisition of property, plant, and equipment.
The Company owed $146,378 and $6,750 on property, plant, and equipment as of
April 4, 1998 and March 31,
1997, respectively.
During the year ended March 31, 1997, 100,000 shares of common stock were
issued for a $50,000 subscription receivable. During the period ended April
4, 1998, $1,401,250 of common stock was issued in exchange for services to
be performed.
During the period ended April 4, 1998, the Company incurred a capital lease
obligation of $49,731 and debt of $107,563 when it acquired new equipment.
During the year ended April 4, 1998, the Company sold its five-gallon water
business. As part of the terms of the sale, debt of $149,782 was assumed by
the purchaser.
<PAGE>
The Company owed $218,688 on property, plant, and equipment at July 4, 1998
(unaudited).
Read independent auditors' report. The accompanying notes are an integral part
of the consolidated financial statements.
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Period August 17, 1995 (Date of Inception) through July 4, 1998
1. Organization, Background, Sale of Assets, and Going Concern
On August 17, 1995, Pocotopaug Investment, Inc. (hereinafter referred to as
"Pocotopaug") was incorporated under the laws of Florida for the purpose of
raising capital to fund the development of products for subsequent entry into
the bottled water industry. Pocotopaug has been in the development stage since
its formation.
On July 29, 1996, Aqua Clara Bottling & Distribution, Inc. (hereinafter referred
to as "Aqua Clara") was incorporated under the laws of Colorado for the purpose
of raising capital to fund the development of products for subsequent entry into
the bottled water industry. Aqua Clara has been in the development stage since
its formation and was virtually inactive until the time of its combination with
Pocotopaug, as described below.
In December 1996, the stockholders of Pocotopaug gained control of Aqua Clara
and Aqua Clara acquired Pocotopaug in a business combination accounted for as a
reorganization of Pocotopaug. Pocotopaug became a wholly owned subsidiary of
Aqua Clara through the exchange of 1,690,122 shares of Aqua Clara's common stock
for all 1,000,000 shares of the outstanding stock of Pocotopaug. Upon the
execution of this transaction, Aqua Clara had 2,525,122 shares outstanding. The
accompanying consolidated financial statements have been based on the assumption
that the Companies were combined for all periods presented.
In December 1997, the Company issued 2,500 shares of convertible cumulative
preferred stock through a private placement memorandum. The Company raised
$2,500,000 and incurred offering costs of $387,512. The Company issued 75,000
shares of common stock as compensation to a promoter of this offering. These
<PAGE>
shares were valued at their trading price of other common stock and amounted to
$247,500.
During the year ended April 4, 1998, the Company began its five-gallon water
business. In February 1998, the Company sold this portion of the business. The
assets disposed of consist of certain receivables, a vehicle, and various
equipment used in the Company's bottled water business. The total sales price
was approximately $352,394 which included the assumption of installment notes
payable of approximately $149,782 by the acquiring company. The Company
recognized a gain of approximately $33,000 on this sale.
Read independent auditors' report. 8
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
1. Organization, Background, Sale of Assets, and Going Concern (continued)
The following is a pro forma statement of the operations (unaudited) as if the
five-gallon water business was not in existence for the years ended April 4,
1998 and March 31, 1997.
<TABLE>
<CAPTION>
Year Ended
April 4, March 31
1998 1997
-----------------------------
<S> <C> <C>
General and administrative expenses $ (1,870,524) $ (315,985)
Interest expense (38,968) (50,542)
Other income 27,589
--------------
Net loss $ (1,881,903) $ (366,527)
=================================
</TABLE>
As shown in the consolidated financial statements, the Company has been a
development stage enterprise since its inception. The majority of the revenues
reflected in the consolidated financial statements are from initial operations
of a five-gallon water business which was discontinued in March 1998. The
<PAGE>
Company is devoting its efforts to establishing its oxygenated water business
and there have been no significant sales from these operations to date. The
Company will need to generate sales or continue to obtain additional financing
to fund its developmental stage operations. These factors, combined with the
fact that the Company has not generated any positive cash flows from operations
since its inception, raise substantial doubt about the Company's ability to
continue as a going concern. The consolidated financial statements do not
include any adjustments relating to the recoverability and classification of
recorded assets or amounts and classifications of liabilities that might be
necessary in the event the Company cannot continue in existence.
Management of the Company is currently negotiating with various banks to obtain
additional funds for a new mortgage on the Company's building. In addition,
management is currently working on raising an additional $2,500,000 from the
private placement of additional common stock of the Company. Although management
believes the above actions will result in additional funds, no assurance can be
given that they will be successful.
Read independent auditors' report. 9
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
2. Significant Accounting Policies
The significant accounting policies followed are:
The consolidated financial statements include the accounts of Aqua Clara
Bottling & Distribution, Inc. and its wholly owned subsidiary,
Pocotopaug Investments, Inc. All significant intercompany accounts and
transactions have been eliminated.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
<PAGE>
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
The Company maintains cash balances in excess of the Federal Deposit
Insurance Corporation's insured limit of $100,000.
Cash equivalents consist of all highly liquid debt instruments purchased
with a maturity of three months or less.
Inventory is stated at the lower of cost (first-in, first-out) or
market.
Deferred tax assets and liabilities are recognized for the estimated
future tax consequences attributable to differences between the
consolidated financial statements carrying amounts of existing assets
and liabilities and their respective income tax bases. Deferred tax
assets and liabilities are measured using enacted tax rates expected to
apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect on
deferred tax assets and liabilities of a change in tax rates is
recognized as income in the period that included the enactment date.
Organizational costs are amortized over a period of six years.
Read independent auditors' report. 10
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
2. Significant Accounting Policies (continued)
Shares of common stock issued for other than cash have been assigned
amounts equivalent to the estimated fair value of the service received
until the time the Company's stock began trading. At that time, the
<PAGE>
Company valued the transactions based on quoted prices. The Company
records shares as outstanding at the time the Company becomes
contractually obligated to issue shares.
Property, plant, and equipment are recorded at cost. Depreciation is
calculated by the declining-balance and straight-line methods over the
estimated useful lives of the assets. Maintenance and repairs are
charged to operations when incurred. Betterments and renewals are
capitalized. When property, plant, and equipment are sold or otherwise
disposed of, the asset account and related accumulated depreciation
account are relieved and any gain or loss is included in operations. No
significant depreciation has been taken as of April 4, 1998 since the
property, plant, and equipment have not yet been placed in service.
The Company applies APB Opinion 25 in accounting for its stock options.
The exercise price of these options exceeded the fair value of the
underlying common stock on the grant date and, therefore, there are no
compensation costs included in the accompanying consolidated financial
statements.
Fair value estimates discussed herein are based upon certain market
assumptions and pertinent information available to management. The
respective carrying value of certain on-balance-sheet financial
instruments approximated their fair values. These financial instruments
include cash, investment securities, accounts payable, and accrued
expenses. Fair values were assumed to approximate carrying values for
these financial instruments since they are short-term in nature and
their carrying amounts approximate fair values or they are receivable or
payable on demand. The fair value of the Company's long-term debt is
estimated based upon the quoted market prices for the same or similar
issues or on the current rates offered to the Company for debt of the
same remaining maturities.
The Company charges to retained earnings and credits its additional
paid-in capital for the amortization of the intrinsic value of the
conversion feature of its preferred stock in accordance with the
statements issued by the Securities and Exchange Commission.
Read independent auditors' report. 11
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
<PAGE>
2. Significant Accounting Policies (continued)
Loss per share is based on the weighted average number of common shares
outstanding during each period after giving effect to the
recapitalization described in Note 1. The Company has implemented SFAS
No. 128. There is no effect on the prior loss per share amounts based on
this statement. In computing diluted earnings per share, the following
were excluded because their effects were antidilutive: options on
250,000 shares; preferred shares convertible into common shares; and
600,000 contingently issuable shares.
Advertising costs are expensed as incurred and amounted to approximately
$849,176 and $1,700 for the year ended April 4, 1998 and the year ended
March 31, 1997, respectively. There was no advertising expense incurred
during the three-month periods ended July 4, 1998 and June 30, 1997.
The Company changed its fiscal year-end to the first Saturday in April
beginning with the fiscal year ended April 4, 1998.
In the opinion of management, all adjustments, consisting only of normal
recurring adjustments necessary for a fair statement of (a) the results
of operations for the three-month periods ended July 4, 1998 and June
30, 1997, (b) the financial position at July 4, 1998, and (c) cash flows
for the three-month periods ended July 4, 1998 and June 30, 1997, have
been made.
3. Prepaid Assets
Prepaid assets consist principally of a lead generation/corporate relations
agreement entered into by the Company. The terms of this agreement are for 12
months at a cost of $400,000. The Company will amortize these costs when
services under the contract are rendered.
Read independent auditors' report. 12
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
<PAGE>
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
4. Property, Plant, and Equipment
Property, plant, and equipment consist of the following:
<TABLE>
<CAPTION>
April 4, July 4,
1998 1998
(Unaudited)
<S> <C> <C>
Land $ 90,000 $ 90,000
Building 528,707 955,583
Machinery and equipment 763,951 801,708
Vehicles 30,392 30,392
---------------------------------
1,413,050 1,877,683
Less accumulated depreciation 5,048 9,557
---------------------------------
$ 1,408,002 $ 1,868,126
=================================
</TABLE>
5. Notes Payable and Long-Term Debt
Notes payable and long-term debt consist of:
<TABLE>
<CAPTION>
April 4, July 4,
1998 1998
(Unaudited)
Mortgage payable; interest adjustable annually to prime (8.5% at March
31, 1998); payable $2,954 per month including interest; unpaid
principal of approximately $238,000 due January 15, 2001;
<S> <C> <C>
collateralized by property and plant $ 277,409 $ 274,419
Stockholder notes payable; 6.0%; due on demand;
unsecured 15,000 15,000
Installment notes payable; interest ranging from 10.5%
to 11.5%; payments aggregating $6,340 per month
including interest; collateralized by vehicles 21,240 20,059
-----------------------------
313,649 309,478
Less amounts currently due 34,135 34,135
-----------------------------
$ 279,514 $ 275,343
=============================
</TABLE>
Read independent auditors' report. 13
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
5. Notes Payable and Long-Term Debt (continued)
The following is a schedule by year of the principal payments required on these
notes payable and long-term debt (excluding the obligations under capital lease)
as of July 4, 1998 (unaudited):
1999 $34,135
=======
2000 $18,284
=======
2001 $256,512
========
2002 $547
====
During the year ended July 4, 1998, the Company sold the assets of their
five-gallon water business. The purchaser of these assets assumed the notes
payable and obligations under capital leases used by the Company to finance
these assets. The purchaser is responsible for making the payments on these
notes payable and obligations under capital leases; however, the Company remains
contingently liable for any nonpayments on behalf of the purchaser. The
principal payments required on these notes payable and obligations under capital
leases are $149,782 at April 4. The balances of these notes and obligations
under capital leases amounted to approximately $20,000 as of October 5, 1998.
6. Lease Commitments
The Company rents its operating facility and various vehicles under operating
leases that expire at various dates from 1998 through 2002. The following is a
schedule by year of future minimum rental payments required under operating
leases that have an initial or remaining noncancelable lease term in excess of
one year as of July 4, 1998 (unaudited).
<TABLE>
<CAPTION>
<S> <C> <C>
1999 $ 11,545
2000 11,592
2001 6,760
----------
$ 29,897
</TABLE>
Rent expense amounted to approximately $83,269 and $5,000 for the years ended
April 4, 1998 and March 31, 1997, respectively. For the periods ended July 4,
<PAGE>
1998, June 30, 1997, and the period from inception through July 4, 1998, rent
expense amounted to $20,361, $15,840, and $108,630, respectively.
Read independent auditors' report. 14
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
7. Income Taxes
No provision for income taxes is recorded due to the amount of tax losses
incurred since inception. The Company had unused net operating loss
carryforwards to carry forward against future years' taxable income of
approximately $624,000, which begin to expire in years after 2011. Temporary
differences giving rise to the deferred tax assets consist primarily of the
deferral and amortization of start-up costs for tax reporting purposes.
Management has established a valuation allowance equal to the amount of the
deferred tax assets due to the uncertainty of the Company's realization of this
benefit.
The components of deferred tax assets consist of the following:
<TABLE>
<CAPTION>
April 4, July 4,
1998 1998
(Unaudited)
Deferred tax assets:
<S> <C> <C>
Start up costs $ 663,000 $ 663,000
Net operating loss carryforwards 120,000 240,000
-----------------------------
Gross deferred tax assets 783,000 903,000
Valuation allowance 783,000 903,000
-----------------------------
Total deferred tax assets $ 0 $ 0
=============================
</TABLE>
Since inception, substantial changes of ownership of the Company have occurred.
Under federal tax law, this change in ownership of the Company will
significantly restrict future utilization of the net operating loss
carryforwards. Other than the net operating losses which have been limited
<PAGE>
because of the change in ownership as described above, any other net operating
losses will expire if not utilized within 15 years of the year they were
incurred.
8. Commitments and Contingencies
The Company has employment agreements with terms ranging from one to five years
with its officers which provide for minimum annual salaries. These one-year
agreements have automatic renewal provisions. The total salary commitment under
these agreements amounts to approximately $231,000 per year. At April 4, 1998
and July 4, 1998, the Company accrued $80,710 and $90,906 (unaudited),
respectively, in deferred salaries related to these agreements.
Read independent auditors' report. 15
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
8. Commitments and Contingencies (continued)
During the year ended April 4, 1998, the Company entered into a lead
generation/corporate relations agreement with a term of one year which required
the Company to pay $400,000 on execution of the agreement and an additional
$400,000 contingent on the Company raising an additional $2,500,000 in a future
common stock offering. The initial $400,000 payment is reflected as a prepaid
asset as of April 4, 1998 and July 4, 1998 (unaudited) and will be expensed at
the time services are received.
9. Stock
In December 1996, the Company issued 259,500 shares to individuals for
consulting services performed. These shares were valued at $.50 per share. In
addition, in April 1997, the Board of Directors approved the issuance of 750,000
shares to two of its officers for services rendered. These shares were also
valued at $.50 per share, management's estimate of the fair market value of the
stock at that time.
<PAGE>
The Company entered into two agreements for services to be performed during the
year ended April 4, 1998. Each agreement contained options to acquire 200,000
shares of common stock at $.25 per share. These services were valued at the
difference between the fair market value of the underlying common stock of the
options on the date of grant and the $.25 per share exercise price. These
options were exercised and resulted in a total cash consideration paid to the
Company of $100,000. The cost of these agreements was expensed because the
services were performed.
In April 1997, the Company issued 62,500 shares of common stock to directors and
employees for services rendered. These shares were valued at $.50 per share, the
fair market value of the common stock.
Read independent auditors' report. 16
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
9. Stock (continued)
The following is a summary of options, common stock issued for services, and
$100,000 received on exercise of the options during the year ended April 4,
1998:
<TABLE>
<CAPTION>
Number
Month of Shares Amount
------------------------------- -------------------
<S> <C> <C>
April 1997 812,500 $ 406,250
September 1997 (including
$100,000 received) 400,000 920,000
March 1998 100,000 175,000
--------------------------------
1,312,500 $ 1,501,250
================================
</TABLE>
<PAGE>
During the year ended April 4, 1998, the Company issued 2,500 shares of Series A
convertible preferred stock. These shares are nonvoting, and the holders are
entitled to receive an eight percent annual dividend and have a liquidation
preference of $1,300 per share. These preferred shares are convertible at any
time at the option of the holder into common shares equal to $1,000 divided by
the lower of (i) 65 percent of the average market price of the common stock for
the five trading days prior to the conversion date, or (ii) $1.875. The Series A
preferred shares contain a provision that the Company shall increase the
conversion rate by five percent for each of the following occurrences:
1. Failure to file a registration statement under the Securities Act of
1933 covering the common stock within 30 days of closing date;
2. Failure of the registration to become effective within 120 days of closing
date; and 3. Failure to issue the common shares within the time limits set forth
in the amended articles
of incorporation.
These shares, if converted using the aforementioned 65 percent of the average
market price of the common stock as of April 4, 1998, would convert to a maximum
of 2,197,802 common shares. Subsequent to April 4, 1998, the Company failed to
register the shares within the 120-day time frame and the maximum amount of
shares increased to five percent as a result.
Considering the beneficial conversion feature of the 2,500 Series A convertible
preferred shares, the Company allocated $1,417,391 of the proceeds raised from
the issuance of these shares, which represents the intrinsic value of the
conversion feature to additional paid-in capital. The amortization of this
discount is charged against retained earnings and increases preferred stock
analogous to a dividend distribution based on the demand conversion.
Read independent auditors' report. 17
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
10. Stock Options
As part of a "lead generation/corporate relations agreement," the Company issued
250,000 options to acquire common stock. These options are exercisable at prices
ranging from $3.50 to $7.00 and the latter of 50,000 annually over the next five
years or upon the Company's raising its next tranche of $2,500,000.
<PAGE>
As indicated in Note 2, the Company applies APB Opinion 25 in accounting for its
stock options. The exercise price of these options exceeded the fair value of
the underlying common stock on the grant date and, therefore, there are no
compensation costs recognized under APB Opinion 25.
The options issued were for future services. Had compensation cost for the
options granted been determined based on the fair value at the grant date under
methods prescribed by FASB Statement No. 123, the Company would have recorded a
prepaid asset of approximately $359,000. This would be amortized as compensation
cost over the next five years as the services are provided to the Company.
Following is a summary of stock option activity from inception through July 4,
1998:
<TABLE>
<CAPTION>
Number of Weighted Average
Shares Exercise Price
<S> <C> <C>
Outstanding at August 17, 1995 0
Granted during the year ended
April 4, 1998 650,000 $ 2.08
======
Exercised 400,000 $ .25
----------- ======
Outstanding at April 4, 1998 250,000 $ 5.00
=========== ======
Outstanding at July 4, 1998 (unaudited) 250,000 $ 5.00
=========== ======
</TABLE>
The following is a summary of options outstanding at July 4, 1998:
<TABLE>
<CAPTION>
Weighted
Exercise Number Average Remaining
Price of Shares Contractual Life Exercise Date
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$3.50 50,000 1 November 17, 1998
$4.20 50,000 2 November 17, 1999
$4.70 50,000 3 November 17, 2000
$5.60 50,000 4 November 17, 2001
$7.00 50,000 5 November 17, 2002
</TABLE>
Read independent auditors' report. 18
<PAGE>
Aqua Clara Bottling & Distribution, Inc.
and Subsidiary
(A Development Stage Enterprise)
Notes to Consolidated Financial Statements
Periods August 17, 1995 (Date of Inception) through July 4, 1998
<PAGE>
10. Stock Options (continued)
The exercise date of the above options is the latter of the above dates or the
Company's raising its next tranche of $2,500,000.
The weighted average fair value of the options at their grant date during the
year ended April 4, 1998 was $4.14. The estimated fair value of each option
granted is calculated using the Black-Scholes option-pricing model. The
following summarizes the weighted average of the assumptions used in the model:
<TABLE>
<CAPTION>
<S> <C>
Risk-free interest rate 5.79%
Expected years until exercise 3
</TABLE>
11. Subsequent Event and Pro Forma Information
In August 1998 the Company received $250,000 ($125,000 from each of the two
purchasers) from the first installment payment on its 1,000,000 shares offering
of $1.00 per share. The first installment of $125,000 was paid by each of the
two purchasers in August 1998. In October 1998 these two purchasers and the
Company agreed to cancel the subscription to purchase the remaining 750,000
shares, and the related installment notes were cancelled.
Included in the accompanying consolidated financial statements is pro forma
information disclosing the net effects of this transaction as though it had
occurred on July 4, 1998.
No dealer, salesman or other person is authorized to give any
information or to make any representations not contained in this Prospectus in
connection with the offer made hereby, and, if given or made, such information
or representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or a solicitation
to an offer to buy the securities offered hereby to any person in any state or
other jurisdiction in which such offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that the information contained herein
is correct as of any time subsequent to the date hereof.
TABLE OF CONTENTS
Page
Additional Information...................... 2
Prospectus Summary.......................... 3
Risk Factors................................ 4
Dividend Policy............................. 8
Market Price of Common Stock................ 9
Management's Discussion and Analysis........ 9
Business and Plan of Operation.............. 10
Management.................................. 15
Principal Shareholders...................... 16
Certain Transactions........................ 16
Selling Shareholders........................ 18
Description of Securities................... 19
Legal Matters............................... 20
Experts..................................... 20
Financial Statements........................ 21
AQUA CLARA BOTTLING AND
DISTRIBUTION, INC.
3,860,190 SHARES
PROSPECTUS
October 24, 1998
<PAGE>
