<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1998
REGISTRATION FILE NO. 333-32029
REGISTRATION FILE NO. 333-5733
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM SB-2/A3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(AMENDMENT NO. 3 TO REGISTRATION FILE NO. 333-32029)
(POST EFFECTIVE AMENDMENT NO. 3 TO REGISTRATION FILE NO. 333-5733)
-----------------------------
VITAFORT INTERNATIONAL CORPORATION
(Exact name of small business issuer as specified in Its Charter)
<TABLE>
<CAPTION>
DELAWARE 5149 68-0110509
<S> <C> <C>
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Number) Identification No.)
</TABLE>
1800 AVENUE OF THE STARS, SUITE 480
LOS ANGELES, CALIFORNIA 90067
(310) 552-6393
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
-----------------------------
MARK BEYCHOK, PRESIDENT & CEO
Vitafort International Corporation
1800 Avenue of the Stars, Suite 480
Los Angeles, CA 90067
(310) 552-6393
(Name, address, including zip code and telephone number, including area code, of
agent for service)
-----------------------------
COPIES OF ALL COMMUNICATIONS TO:
FRANK J. HARITON, ESQ.
The Empire State Building
350 Fifth Avenue, Suite 3000
New York, NY 10118
Telephone: (212) 695-6000
Facsimile: (212) 563-3101
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC FROM TIME TO TIME AFTER THE
---------------------------
EFFECTIVE DATE
- --------------
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Price Aggregate Registration
to be registered Registered Per Share* Offering Price* Fee**
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------
Common Stock,
par value
$.0001 per
share 1,343,260 $.99 $1,330,760 $392.56
===========================================================================================
</TABLE>
* Based on the closing bid price of the common stock on the Over The Counter
Bulletin Board on June 18, 1998, as to shares of common stock and based on the
exercise price of options for shares issuable upon the exercise of options.
** Calculated pursuant to Rule 457(h).
There is also registered hereunder such additional shares of Common Stock,
par value $.0001, as may be issuable based upon any adjustment of the conversion
price of the preferred shares held by the Selling Security Holders.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective in such date as the Commission, acting pursuant to said Section 8(a)
shall determine.
<PAGE>
CROSS REFERENCE SHEET
UNDER ITEM 501 (c) OF REGULATION S-B
<TABLE>
<CAPTION>
ITEM AND NUMBER LOCATION IN PROSPECTUS
- --------------------------------------------------------------------------------------------------
<S> <C>
1. Front of Registration Statement Front of Registration Statement
and Outside Front Cover of Prospectus and Outside Front Cover of Prospectus
2. Inside Front and Outside Back Inside Front and Outside Back
Cover Pages of Prospectus Cover Pages of Prospectus
3. Summary Information and Risk Factors Prospectus Summary and Risk Factors
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Legal Proceedings Legal Proceedings
10. Directors, Executive Officers, Promoters Management
and Control Persons
11. Security Ownership of Certain Principal Stockholders
Beneficial Owners and Management
12. Description of Securities Description of Securities
13. Interest of Named Experts and Counsel Experts; Counsel
14. Disclosure of Commission Position Statement of Indemnification
on Indemnification For Securities Act Liabilities
15. Organization Within Last Five Years Business of the Company
16. Description of Business Business of the Company
17. Management's Discussion and Analysis Management's Discussion and Analysis of
or Plan of Operation Financial Condition and Results of Operations
18. Description of Property Business of the Company - Property
19. Certain Relationships and Related Transactions. Certain Transactions
20. Market for Common Equity and Related Market for Common Equity and Related
Stockholder Matters Stockholder Matters
21. Executive Compensation Management - Executive Compensation
22. Financial Statements Financial Statements
23. Changes in and Disagreements With Change of Auditors
Accountants on Accounting and
Financial Disclosure
</TABLE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALES OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
- ----------
VITAFORT INTERNATIONAL CORPORATION
COMMON STOCK
($.0001 PAR VALUE)
7,319,321 SHARES OF COMMON STOCK
OFFERED BY CERTAIN SELLING STOCKHOLDERS
This Prospectus relates to 7,319,321 shares of Common Stock which consists
of:
(a) 500,000 shares of Common Stock issued in a private placement
transaction in February, 1997.
(b) 4,371,061 shares reserved for issuance upon conversion of shares
of preferred stock issued in April and May, 1997 and March 1998,
including shares of common stock which may be issued upon
exercise of certain options to be granted by the Company in
connection with the mandatory conversion of such preferred
stock.
(c) 2,448,260 shares issuable, if at all, upon exercise of options
and warrants granted to various vendors, employees, lenders and
consultants to the Company between February 1997 and June 1998,
and 17,857 shares issued as a result of the exercise of such
options.
(d) 60,000 shares in connection with an acquisition.
The shares of Common Stock may be offered for sale, from time to time,
by the Selling Stockholders or by donees, pledgees, transferees, or other
successors in interest through ordinary brokerage transactions in the over-the-
counter market, either directly or through brokers or to dealers, in private
sales, in negotiated transactions, or otherwise, at market prices prevailing at
the time of sale or at negotiated prices. The Company will not receive any
proceeds from the sale of the Common Stock by the Selling Stockholders. The
Selling Stockholders, and not the Company, will pay or assume all applicable
brokerage commissions or other costs of sale as may be incurred in the sale of
such securities. See "Selling Stockholders" and "Plan of Distribution".
The Company will assume no responsibility for the sale of the shares
of Common Stock of the Selling Stockholders, nor can there be any assurances
that a liquid trading market will exist for the sale of the shares of Common
Stock to be offered by the Selling Stockholders. See "Risk Factors."
The Company's Common Stock is traded in the over-the-counter market
and is quoted on the OTC Electronic Bulletin Board maintained by NASDAQ under
the symbol "VRFT". On June 18, 1998, the closing price bid for the Common
Stock on the OTC Electronic Bulletin Board was $1.00 per share.
All share and per share information in this Prospectus reflects a one
for twenty reverse stock split, effective October 4, 1996.
------------------------------------------------------------
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND SHOULD NOT BE
PURCHASED BY INVESTORS WHO CANNOT AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
SEE "RISK FACTORS" ON PAGE 5.
------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
------------------------------------------------------------
THE DATE OF THIS PROSPECTUS IS JUNE 24, 1998
1
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements, and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information may be inspected and copied at the public reference facilities
maintained by the Commission at 450 5th Street, N.W., Washington, DC 20549, and
at the Commission's regional offices located at 13th Floor, Seven World Trade
Center, New York, New York 10048; 10960 Wilshire Boulevard, Suite 1710, Los
Angeles, California 90024, and 14th Floor, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material may be obtained from the Commission at
450 5th Street, N.W., Washington, DC 20549, at prescribed rates. The Company is
an electronic filer under the EDGAR (Electronic Data Gathering and Retrieval)
system maintained by the Commission. The Commission maintains a web site
(http:/www.sec.gov.) on the Internet that contains reports, proxy and
information statements and other information regarding Companies that file
electronically with the Commission. In addition, reports, proxy statements and
other information concerning the Company may be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, DC 20006.
The Company has filed with the Commission a registration statement on Form
SB-2 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"). This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to
the Registration Statement.
THE COMPANY
Vitafort International Corporation (the "Company" or "Vitafort") is in the
business of developing, and marketing fat free, low fat, and reduced fat bakery
snacks that would be marketed under Company owned trademarks. Vitafort does not
own any production facilities, so established contract manufacturers
(co-packers) are utilized to manufacturer these branded products developed by
the Company. The Company's principal products are a variety of products
marketed under the Auburn Farms and Natures Warehouse trademarks and Fudgets and
Caketts marketed under the Vitafort name. The Company recently expanded its
product line to include salty snacks and began utilizing its new trade name
AVENUE OF THE STARS(TM) to sell products connected to motion picture licenses.
The first effort, connected with "The Lost World: Jurassic Park" was introduced
into the marketplace in November, 1997.
The Company's fat free and low fat snack items are based upon the Company's
proprietary formulas and are developed in conjunction with its co-packers. The
Company seeks to protect its proprietary information through confidentiality
agreements with employees, suppliers and manufacturers. These products are made
from generally available ingredients, which are then converted into the
Company's products.
In March 1998, the Company acquired Global International Sourcing, Inc.
("Global"). Global is an international sourcing company which provides natural
and low fat product sources from abroad. These sources should be able to provide
products to be distributed by Vitafort at significantly lower cost.
The Company's principal executive offices are located at 1800 Avenue of the
Stars - Suite 480, Los Angeles, California 90067 and its telephone number is
(310) 552-6393.
2
<PAGE>
PROSPECTUS SUMMARY
THE COMPANY
Vitafort International Corporation (the "Company" or "Vitafort") is in the
business of developing, manufacturing and marketing fat free and low fat bakery
snacks that would be marketed under Company owned trademarks. Vitafort does not
own any production facilities, so established contract manufacturers (co-
packers) are utilized to manufacture these branded products developed by the
Company. The Company's principal products are a variety of products produced
under the Auburn Farms and Natures Warehouse trademarks and snack foods and
licensed products sold under its Avenue of the Stars name.
The Company's fat free and low fat snack items are based upon the Company's
proprietary formulas and are developed in conjunction with its co-packers. The
Company seeks to protect its proprietary information through confidentiality
agreements with employees, suppliers and manufacturers. These products are made
from generally available ingredients, which are then converted into the
Company's products.
The Company has recently acquired Global International Sourcing which
provides imported products to Vitafort and other customers at significantly
reduced costs to the ultimate consumer.
THE OFFERING
Up to 7,319,321 shares offered by the Selling Security Holders.
SHARES OUTSTANDING
Before the Offering After the Offering
7,500,350 (1) 7,841,110 (1)
(1) Includes 2,847,934 previously issued shares which are offered hereby
and shares issuable upon exercise of options and conversion of preferred stock.
CAUTIONARY STATEMENT FOR PURPOSES OF "SAFE HARBOR PROVISIONS" OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995.
EXCEPT FOR HISTORICAL FACTS, ALL MATTERS DISCUSSED IN THIS PROSPECTUS, WHICH ARE
FORWARD LOOKING, INVOLVE A HIGH DEGREE OF RISKS AND UNCERTAINTIES. POTENTIAL
RISKS AND UNCERTAINTIES INCLUDE, BUT ARE NOT LIMITED TO, COMPETITIVE PRESSURES
FROM OTHER FOOD COMPANIES AND WITHIN THE GROCERY INDUSTRY, THE IMPACT OF QUALITY
PROBLEMS EXPERIENCED IN 1996, THE LACK OF ADEQUATE CAPITAL TO FUND CONTINUING
OPERATIONS, ECONOMIC CONDITIONS IN THE COMPANY'S PRIMARY MARKETS AND OTHER
UNCERTAINTIES DETAILED FROM TIME-TO-TIME IN THE COMPANY'S SECURITIES AND
EXCHANGE COMMISSION FILINGS.
SUMMARY FINANCIAL INFORMATION
The following table sets forth, for the periods and at the dates indicated,
certain summary financial information for the Company. Such data have been
derived from, and should be read in conjunction with, the financial statements
of the Company, including the notes thereto, and "Management's Discussion and
Analysis of Financial Condition and Results of Operations," included elsewhere
in this Prospectus.
The Company's independent public accountants included an explanatory paragraph
in their opinion as of December 31, 1997 and 1996 reflecting uncertainty about
the Company's ability to continue to operate as a "going concern". Should the
Company be unsuccessful in raising capital or generating an adequate level of
profitable sales, it will be forced to curtail and/or suspend operations. See
Note 2 of Notes to the Consolidated Financial Statements for the
3
<PAGE>
year ended December 31, 1997 for additional information. The Company received
$6,750,000 in full and complete settlement from the Keebler arbitration on
July 5, 1997. See Note 16 of Notes to the Consolidated Financial Statements for
the year ended December 31, 1997 for an explanation of the total Keebler
transaction.
CONSOLIDATED STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
YEARS ENDED THREE MONTHS ENDED
DECEMBER 31, MARCH 31,
1997 1996 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues $ 1,995,317 $ 5,285,149 $ 732,641 $ 765,239
Cost of sales 1,896,410 6,870,120 609,522 548,288
----------- ----------- ----------- ----------
Gross profit (loss) 98,907 (1,584,971) 123,119 216,951
----------- ----------- ----------- ----------
Operating expenses:
Research and development 337,806 737,044 61,359 39,350
Sales and marketing 1,239,460 3,029,480 419,949 379,797
General and administrative 2,672,946 2,721,321 724,884 586,232
----------- ----------- ----------- ----------
Total operating expenses 4,250,212 6,487,845 1,206,192 1,005,379
----------- ----------- ----------- ----------
Loss from operations (4,151,305) (8,072,816) (1,083,073) (788,428)
Interest income 78,070 49,319 30,826 -
Interest expense (214,690) (50,509) (47,870) (40,611)
Other income (expense) 15,210 (45,650) 2,927 14,010
Litigation recovery, net of costs (Note 16) 4,748,946 - - -
----------- ----------- ----------- ----------
Income (loss) before income taxes 476,231 (8,119,656) (1,097,189) (815,029)
State income taxes (Note 8) 3,200 3,159 3,200 -
----------- ----------- ----------- ----------
Net Income (loss) 473,031 $(8,122,815) (1,100,389) (815,029)
Deemed dividends to preferred shareholders 269,164 - 163,728 -
----------- ----------- ----------- ----------
Net income (loss) allocable to
common shareholders $ 203,867 $(8,122,815) $(1,100,389) $ (815,029)
=========== =========== =========== ==========
Basic net income (loss) per common share $ .03 $ (1.58) $ (0.18) $ (0.14)
=========== =========== =========== ==========
Diluted net income (loss) per share $ .03 $ (1.58) $ (0.18) $ (0.14)
=========== =========== =========== ==========
Basic weighted average shares
of common stock 5,831,404 5,133,665 6,856,961 5,821,635
=========== =========== =========== ==========
Diluted weighted average shares
of common stock 6,343,397 5,133,665 6,856,961 5,821,635
=========== =========== =========== ==========
</TABLE>
<TABLE>
DECEMBER 31, MARCH 31,
1997 1996 1998
<S> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Working capital (deficit) $1,503,938 $(1,217,296) $1,170,867
Total assets 3,912,263 1,836,514 3,141,301
Total liabilities 1,634,266 2,330,343 1,215,820
Stockholders' equity (deficit) 2,277,997 (493,829) 1,925,481
</TABLE>
4
<PAGE>
RISK FACTORS
THE SHARES OF COMMON STOCK OFFERED BY THIS PROSPECTUS ARE SPECULATIVE AND
INVOLVE A HIGH DEGREE OF RISK. THEREFORE, PROSPECTIVE PURCHASERS SHOULD
CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AFFECTING THE BUSINESS OF THE
COMPANY, PRIOR TO MAKING ANY INVESTMENT THEREIN, AS WELL AS OTHER MATTERS SET
FORTH ELSEWHERE IN THIS PROSPECTUS.
5
<PAGE>
LIMITED RELEVANT OPERATING HISTORY
The Company was formed in 1986 and until May 1993 the Company was in the
business of formulating and developing value-added foods and beverages for third
parties and marketing branded seafood. In May 1993, these businesses were
discontinued and later in 1993 the Company disposed of these businesses. In
September 1993 the Company installed new management and entered the business of
developing and marketing branded low fat and fat-free foods using proprietary
formulations. In June 1994 the Company commercially introduced its principal
product, a line of fat-free brownies under the brand name "Fudgets". Some
stockkeeping units ("SKU's") were discontinued. Other products were introduced
or acquired in 1996 and 1997. The Company's business did not achieve operating
profitability during 1996, 1997, nor in the first quarter of 1998.
CONTINUING LOSSES
The Company incurred losses from operations of $8,072,816 in 1996,
$4,151,305 in 1997, and $1,100,390 for the three months ended March 31, 1998 and
continues not to generate an operating profit. For the three months ended March
31, 1998, the Company had working capital of $1,170,867 and stockholders' equity
of $1,925,481. For the year ended December 31, 1997, the Company had working
capital of $1,503,938 and a stockholders' equity of $2,277,997. Management
anticipates that at June 30, 1998, working capital and stockholders equity will
be further reduced. The Company is slow and has been delinquent in paying its
accounts payable and other obligations. The Company's auditors have included an
explanatory paragraph in their report for the year ended December 31, 1997,
indicating there is substantial doubt regarding the Company's ability to
continue as a going concern. Although the Company generated a profit before
income taxes in 1997, the profit was derived from the arbitration in the Keebler
litigation. There can be no assurance that the Company will be profitable in the
future. Furthermore, future revenues and profits, if any, will be dependent on
many factors, including, but not limited to, the Company's ability to expand its
operations in a timely manner to meet demand, need for additional financing,
competition from other makers of low fat or fat-free products and market
acceptance of the Company's products. If the Company is not able to
significantly improve its operating results, it may be required to cease or
substantially curtail its operations.
LIEN ON ASSETS
Pursuant to a Loan and Security Agreement between the Company and Coast
Business Credit ("Lender"), all of the Company's assets are subject to a lien
which secures inventory and receivable financing. As of December 31, 1996 and
March 31, 1997, the Company was in violation of certain covenants in that it had
not maintained minimum tangible net worth of at least $1,500,000 and minimum
working capital of $1,000,000. Should the Lender exercise its rights under the
Agreement, it may request customer payments be made directly to it, sell the
finished goods inventory at auction, and seize and sell the fixed assets of the
Company until the obligation has been satisfied. As of December 31, 1997, the
Company was again in compliance with the covenants in the Loan and Security
Agreement. At March 31, 1998, the Company was in violation of the tangible net
worth covenant in that it has fallen below the $1,500,000 requirement. The
Company is in negotiations with the lender to resolve the issue. Should the
Company be unsuccessful in these negotiations or should it be unsuccessful in
finding a new lender, if necessary, it would have to significantly curtail its
business activities.
POSSIBLE NEED FOR ADDITIONAL FINANCING
The Company's capital requirements associated with the introduction and
development of new products and the marketing of existing products have been and
will continue to be substantial. The Company anticipates (based on management's
internal forecasts and assumptions related to operations) that its existing
capital resources may not be sufficient to permit it to develop or acquire new
products and complete the marketing thereof, as well as the marketing of
existing products. The Company is, therefore, likely to require additional
financing to execute its business plan. However, no assurance is given that the
Company would be able to obtain additional financing when needed, or that, if
available, such financing
6
<PAGE>
would be on terms acceptable to the Company. In any such financing, the
interests of the Company's existing security holders, including purchasers of
shares offered hereby, could be substantially diluted.
WORKING CAPITAL SHORTAGES
During the latter portion of 1996 and the first two quarters of 1997, the
Company's operations were curtailed as a result of working capital shortages.
The Company has experienced working capital shortages from time to time in the
past. While the Company's working capital position was greatly improved by the
receipt of the proceeds of the Keebler arbitration, the likelihood that a
working capital shortage will occur in the future is high based on the present
level operating results. Unless the Company is able to improve its revenues from
new products or raise additional funds (neither of which can be assured), it
will suffer from working capital shortages during 1998.
NEED FOR MARKET ACCEPTANCE AND DEPENDENCE ON A LIMITED NUMBER OF PRODUCTS
Consumer preferences for snack foods in general, and for fat-free and
low-fat foods in particular, are continually changing and are extremely
difficult to predict. In 1997, the Company derived approximately 62% of its
revenues from the sale of the Auburn Farms and Natures Warehouse lines of
products and approximately 38% of its revenues from the sale of Fudgets and
Caketts. There can be no assurance that the Company's products will a) achieve a
significant degree of market acceptance; b) will be sustained for any
significant period; or c) that the product life cycles will be sufficient to
permit the Company to recover start-up and other associated costs. Failure of
the Company's products to achieve or sustain market acceptance could have a
material adverse effect on the Company's business, financial condition and
results of operations. Certain of the Company's products, particularly Fudgets
and Caketts, had their market acceptance materially adversely affected by the
mold problem, principally associated with Keebler.
COMPETITION
The market for snacks is large and highly competitive. Competitive
factors in the snack industry include product quality and taste, brand awareness
among consumers, access to supermarket shelf space, price, advertising and
promotion and variety of snacks offered. The Company's fat-free and low-fat
products are priced higher than traditional snacks. As a result, price erosion
due to competitive factors could have a material adverse effect on the Company.
The Company also competes with a number of manufacturers in the fat-free
and low-fat portion of the industry, including Health Valley Foods, Nabisco
(Snackwell's) and Pepperidge Farms (Greenfield). Additional competitors include
regional and private label snack companies. Potential entrants in the fat-free
and low-fat snack food market segment include the national competitors and
private label competitors.
DEPENDENCE ON KEY EXECUTIVE OFFICERS AND OTHER QUALIFIED PERSONNEL
The Company is highly dependent on certain key personnel, including Mark
Beychok, its President and Chief Executive Officer. Other key employees are Jack
Spencer, Chief Operating Officer and Chief Financial Officer, and John
Coppolino, Executive Vice President. The loss of one or more key personnel could
have a material adverse effect on the Company's business, financial condition
and results of operations. The Company has key man life insurance on Mr. Beychok
and Mr. Spencer. The recruitment, retention and motivation of skilled
executives, sales and technical personnel and other employees are important to
the Company's operations. Although the Company has not experienced significant
problems in recruiting and retaining qualified personnel, there can be no
assurance that it will not encounter such problems in the future.
7
<PAGE>
AVAILABILITY OF SHELF SPACE
The majority of the Company's sales are made through supermarkets, and the
Company expects supermarket sales to constitute a significant portion of its
future sales. Such sales are affected by access to shelf space, which is
limited. Food retailers typically seek concessions, allowances or other
discounts from food manufacturers and suppliers, such as the Company and its
distributors, in return for shelf space. The Company believes that it may have
to incur such expenditures in the future in order to obtain or retain shelf
space for its products. Should the Company be unable, financially, to incur such
costs, it could be limited in its ability to increase sales volume. Such
expenditures, if significant, could adversely affect the Company's business,
financial condition and results of operations.
PAST DISPUTES WITH CONTRACT MANUFACTURERS
In order to achieve economies of scale and production flexibility the
Company has entered into contract manufacturing agreements with established food
manufacturers, which have the facilities for the production of its products. The
Company does not, itself, own or operate any production facilities. In the event
of a contract dispute between the Company and any of these contract
manufacturers, or if any contract manufacturer experiences an interruption in
its business as a result of labor disputes, acts of God or a similar occurrence
over which the Company has no control, such an event could materially and
adversely affect the Company's business. Past financial restraints have hampered
the Company's ability to respond to production manufacturers financial
requirements on a timely basis, resulting in significant problems receiving
production quantities timely. In addition, the Company has experienced quality
control problems at certain of its past contract manufacturers, particularly the
Keebler Company, which may continue to adversely effect its goodwill. The
Company was recently engaged in legal proceedings with former co-packers. During
the pendency of these proceedings, the Company's ability to procure products in
response to customer demand was materially impaired which resulted in a
substantial loss of goodwill. No assurance can be given that the Company will
not, in the future, have its results again adversely effected by disputes with
its contract manufacturers.
PENDENCY OF LEGAL PROCEEDINGS
As set forth under the heading "Legal Proceedings", the Company is engaged
in several legal proceedings. An adverse finding in certain of these proceedings
could have a material adverse effect on the Company. See Note 13 to the
consolidated financial statements for the year ended December 31, 1997 and Note
10 to the consolidated financial statements for the three months ended March 31,
1998 for additional information concerning all legal proceedings.
MANAGEMENT OF POSSIBLE GROWTH
The Company intends to expand its operations during 1998 and thereafter,
through the expansion of its sales and marketing capacity, the addition of new
products and the expansion and addition of distribution channels. There can be
no assurance that the Company will have sufficient financial and management
resources necessary to support the capital outlays and logistical difficulties
posed by such growth as they may occur.
COORDINATION OF PRODUCT SUPPLY AND DISTRIBUTION
If the Company is to be successful, it must match its production capacity
to the demand for its products in a timely manner and maintain its distribution
system. The Company has no long-term contracts with its distributors. The
Company has previously experienced problems both with a slowing of demand and
resulting excess capacity, as well as with sharp increases in demand and
resulting shortages of capacity.
8
<PAGE>
Efforts by the Company to increase production rapidly in order to meet sharp
increases in demand have sometimes resulted, and could in the future result, in
additional expenses that materially increase the cost of goods sold and reduce
profitability. The occurrence of any of these events would likely have a
material adverse effect on the Company's business, financial condition and
results of operations, as well as on its distribution relationship and
prospects.
LIMITED PRODUCT SHELF LIFE
Because the Company's fat-free products have a limited shelf life, the
Company cannot produce significant inventories for later sale. As a result,
manufacture, distribution and marketing of these products require a high degree
of coordination. Should the Company be unsuccessful in coordinating such
functions, the Company could be adversely affected by reduced sales volume.
NEED FOR IMPROVED OPERATING CONTROLS
To improve its results, the Company must continue to implement and improve
its financial, accounting and management information systems and to hire, train,
motivate and manage its employees. A failure to improve management controls
would have a material adverse effect on the Company's business, financial
condition and results of operations, and on its ability to execute its business
strategy successfully.
LACK OF PATENTS, DEPENDENCE ON TRADEMARKS AND PROPRIETARY RIGHTS
The Company's success is dependent to some degree on its ability to
preserve its trademarks and operate without infringing upon the proprietary
rights of third parties. The Company has registered various trademarks in the
United States. No assurance can be given as to the degree of protection the
trademarks will afford or the Company's ability to avoid violating or infringing
upon any trademarks issued to others. Defense and prosecution of trademark
objections can be expensive and time consuming, even in those instances in which
the outcome is favorable to the Company, and can result in the diversion of
resources from the Company's other activities. An adverse outcome could subject
the Company to significant liabilities to third parties, require the Company to
obtain licenses from third parties or require the Company to cease any related
product development activities or sales. The Company is seeking to determine
whether its various formulas and procedures are patentable in the United States.
No assurance can be given, however, that such steps will adequately protect the
Company. Should there be an adverse outcome resulting from a dispute, the
outcome could impede the Company's ability to continue to operate.
The Company's success is also dependent upon the skills, knowledge and
experience (none of which is patentable) of its technical personnel. To help
protect its rights, the Company requires all employees to enter into
confidentiality agreements that prohibit the disclosure of confidential
information to anyone outside the Company. There is no assurance, however, that
these agreements will provide adequate protection for the Company's trade
secrets, know-how or other proprietary information in the event of any
unauthorized use or disclosure. While the loss of any member of the technical
staff could impede development in the short term, the greater concern is the
lack of protection afforded the Company.
POSSIBLE IMPACT OF GOVERNMENT REGULATION
The packaged food industry is subject to numerous federal, state and local
government regulations, including those relating to the preparation, labeling
and marketing of food products. The Company is particularly affected by the
recently enacted Nutrition Labeling and Education Act ("NLEA"), which requires
specified nutritional information to be disclosed on all packaged foods. In
addition, the NLEA, which is administered by the Food and Drug Administration
("FDA"), strictly regulates the standards that must be met to make a claim that
a product is "fat-free" or "low-fat." In addition, the FDA standards could
9
<PAGE>
conceivably be lowered further or reduced to zero. Changes in fat content could
adversely affect the taste and texture of the Company's products and their
acceptability to consumers, which could adversely affect the Company's sales and
results of operations. Labeling standards imposed by certain other countries may
vary from those in the United States. Were the Company to be found to have
violated any regulations applicable to it, such finding could materially
adversely affect its ongoing operations and curtail its business significantly.
EFFECT OF PENNY STOCK RULES
The Common Stock of the Company currently trades on the OTC Bulletin Board
maintained by the National Association of Securities Dealers, Inc. (the "NASD").
Under the Securities Enforcement and Penny Stock Reform Act of 1990, the Common
Stock is defined as a "penny stock" because its market price is below $5.00.
Additional disclosures are required related to the market for penny stocks and
for broker-dealers to effect trades in a penny stock. In the absence of the
Company's obtaining NASDAQ listing, the Common Stock and the liquidity of an
investment in the Common Stock will be impaired. The Common Stock could not be
included in NASDAQ unless the price of the Common Stock came to exceed $3.00
per. Accordingly, no assurance can be given that the Common Stock will be
included in NASDAQ in the foreseeable future and the Common Stock. Furthermore,
even if the Common Stock were to be included in NASDAQ in the future, no
assurance can be given that the Company will be able to comply with the criteria
for continued listing which include, among other things, stockholder's equity in
excess of $1,000,000 and assets in excess of $2,000,000. Consequently, the
effect of these rules may restrict the ability of broker-dealers to sell the
Common Stock and may affect the ability of holders of Common Stock to sell their
shares in the secondary market.
POSSIBLE ILLIQUIDITY OF SHARES
The market for the Company's Common Stock on the OTC Bulletin Board has at
times been limited and sporadic. The OTC market is smaller than other securities
markets, and prices for OTC securities are not generally published in the news
media. Information about the Company and transactions in the Company's shares
may be more limited on the OTC market. The limitations of the trading market for
the Company's Common Stock and of the OTC Bulletin Board may materially
adversely affect the liquidity of the market for the Company's Common Stock.
LACK OF DIVIDENDS
The Company has never paid any dividends on its Common Stock and does not
anticipate paying any dividends in the foreseeable future. Any future dividends
on the Common Stock will be dependent on the earnings of the Company, if any,
and its financial requirements as well as the dividend priorities of the
outstanding Series of Preferred Stock.
USE OF PROCEEDS
The Company will realize no proceeds on the sale of Common Stock by the
Selling Stockholders. Proceeds from the exercise of the Options covered herein,
if any, will be added to the Company's working capital to be used for future
sales and marketing efforts and for potential acquisitions, if any.
10
<PAGE>
SELLING STOCKHOLDERS
Relationship of Selling Shareholders with the Company
None of the Selling Shareholders currently has, or within the past three
years has had, any position, office, or other material relationship with the
Company or any predecessor or affiliate of the Company.
Sales of the Outstanding Shares by Selling Shareholders
None of the Selling Shareholders have advised the Company, and the
Company is unable to predict, if, when, and the extent to which they intend to
sell the Shares being registered hereunder for their respective accounts.
Notwithstanding the foregoing, for purposes of the following Selling
Shareholders Table, all of the Shares are deemed to be offered hereby by the
Selling Shareholders for sale to the public (for purposes of the Selling
Shareholders Table, the "Offering"). Based upon the foregoing assumption, the
following Table sets forth as of June 11, 1998: (i) the number of shares of
Common Stock owned by each Selling Shareholder prior to the Offering (as of the
date of this prospectus); (ii) the number of Shares which it is deemed are being
offered for the account of each Selling Shareholder; (iii) the number of shares
of Common Stock to be owned by each Selling Shareholder after the completion of
the Offering (assuming that all of the Shares are offered and sold in the
Offering); and (iv) based upon the foregoing assumptions, the percentage of the
Company's common stock to be owned by each Selling Shareholder after completion
of the Offering.
There can be no assurance that any of the Selling Stockholders will offer
for sale or sell any or all of the Common Stock offered by them pursuant to
this Prospectus.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF PERCENTAGE OF
SHARES OWNED SHARES TO BE SHARES OWNED COMMON STOCK
PRIOR TO THE SOLD IN THE AFTER THE TO BE OWNED AFTER
NAME OF SELLING STOCKHOLDER OFFERING OFFERING OFFERING THE OFFERING
- --------------------------- ------------- ------------- --------------- ------------------
<S> <C> <C> <C> <C>
Credit Suisse 500,000 500,000 0 0
Sovereign Partners, L. P. 0 (1) 3,086,210 (1) 0 0
Dominion Capital Fund, Ltd. 0 (1) 1,284,851 (1) 0 0
NET Financial International, Ltd. 0 (2) 127,500 (2) 0 0
Kurt Martin Consulting 0 (2) 125,000 (2) 0 0
</TABLE>
11
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Wohl, Don 0 (8) 20,000 (8) 0 0
</TABLE>
12
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Luke, Robert 0 (9) 37,500 (9) 0 0
Courson, Robert 30,000 30,000 0 0
Harpel, James 50,000 50,000 0 0
Nesicolacci, Tracey 120,000 120,000 0 0
Woods, Myung 25,000 25,000 0 0
Michel's Bakery 70,000 70,000 0 0
David Dondick 15,000 15,000 0 0
Joel L. Freedman 15,000 15,000 0 0
Willow International Sourcing, Inc. 60,000 60,000 0 0
Nikolas Konstant 0 (3) 40,000 (3) 0 0
Professional Container Corp. 0 (4) 40,000 (4) 0 0
Specialty Plastic 0 (4) 3,260 (4) 0 0
Sterling Foods 0 (4) 45,000 (4) 0 0
Wall Street Resource 0 (5) 200,000 (5) 0 0
Dydx Corp. 0 (6) 100,000 (6) 0 0
Wilko Industries, LLC 0 (6) 100,000 (6) 0 0
Todd Poindexter 0 (7) 50,000 (7) 0 0
Kurt Martin Consulting 0 (3) 275,000 (3) 0 0
Kurt Martin 0 (3) 100,000 (3) 0 0
Kevin McEneely 0 (3) 75,000 (3) 0 0
Victor Conant 0 (3) 75,000 (3) 0 0
November Lazar Scher 0 (3) 200,000 (3) 0 0
Nikolas Konstant 0 (3) 300,000 (3) 0 0
NCVC, LLC 0 (3) 150,000 (3) 0 0
</TABLE>
(1) Issuable on conversion of preferred stock and stock options which are not
exercisable until August 10, 1998. See "Description of Securities - 1997
Series A Preferred Stock" for a discussion of the terms of the Conversion
of the 1997 Series A Preferred Stock.
13
<PAGE>
(2) Issuable upon exercise of warrants with an exercise price of $1.00 per
share.
(3) Issuable upon exercise of options with an exercise price of $1.00 per
share.
(4) Issuable upon conversion of note at a price of $1.00 per share.
(5) Issuable upon exercise of options with an exercise price of $1.12 for
50,000 shares, $1.75 for 50,000 shares, $2.50 for 50,000 shares, and $3.50
for 50,000 shares.
(6) Issuable upon exercise of warrants with an exercise price of $1.03 per
share.
(7) Issuable upon exercise of options with an exercise price of $.75 per share.
(8) Issuable upon exercise of options with an exercise price of $4.40 per
share.
(9) Issuable upon exercise of options with an exercise price of $3.00 per
share.
PLAN OF DISTRIBUTION
As at the date hereof, none of the Selling Security Holders have advised
the Company if, when, and to what extent they intend to sell any of their
Shares. In addition, none of the holders of the securities which may be
exercised for, or converted into, the Shares have advised the Company if, when,
and to what extent they intend to acquire the Shares and, if they do so, their
intentions respecting the offer and resale of such Shares to the public. For
purposes of this discussion, the Shares held or which may be acquired by the
Selling Security Holders upon the exercise of options or the conversion of
preferred shares are sometimes referred to hereinafter, collectively, as the
"Shares."
Commencing as at the date of this Prospectus, all of the Shares may be
offered and sold by the Selling Shareholders and, with the exception of the
Shares issuable upon the conversion of the 1997 Series A Preferred Stock, which
may not be converted into Common Stock prior to August 10, 1998. None of the
proceeds from any sales of the Shares will be received by the Company. If any
Shares issuable upon the exercise of options are sold, the Company will have
received the exercise price of the options prior to such sale. The Selling
Shareholders may make such sales or resales from time to time as market
conditions permit in transactions that may take place in the over-the-counter
market, including block trades, ordinary brokers' transactions, privately
negotiated transactions or through sales to one or more broker/dealers for
resale of such securities as principals, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. In connection with sales or resales of Shares pursuant to the
Registration Statement of which this Prospectus is a part, a Selling shareholder
offering such Shares and brokers and dealers who participate in the offer and
sale of the shares may be deemed "underwriters" as such term is defined in the
Securities Act. In addition, persons using this Prospectus in the offer and sale
of the Shares will be deemed to be engaged in a "distribution" of the Shares as
such term is defined in Regulation M under the Exchange Act, and will be
required to comply with Regulation M with respect to contemporaneous market
activity and other provisions of such Regulation.
As at the date of this Prospectus, none of the Selling Shareholders intends
to utilize the services of an underwriter in any distribution of the Shares,
should such distribution occur, except insofar as any securities dealer
executing a sell order for any of them may be deemed an underwriter as that term
is defined in the Securities Act. Further, it is intended that if and when any
of the Shares are sold through a dealer, no more than the ordinary and customary
brokerage commission will be paid. Shares purchased by dealers for their own
accounts may be re-offered from time to time at prices obtainable and
satisfactory to such dealers. The names of any participating brokers or dealers,
any applicable commissions or discounts and the net proceeds to the Selling
Shareholders from such sale will be set forth in an applicable Prospectus
Supplement, as required.
The registration statement, of which this Prospectus forms a part, must be
current at any time during which a Selling Shareholder sells any of the Shares.
Any material changes which the Company, in its sole discretion, determines
should be disclosed prior to the sale of any of the Shares will be set forth in
an accompanying supplement to this Prospectus (the "Prospectus Supplement"). The
Company will bear all expenses (other than underwriting discounts and selling
commissions, state and local transfer taxes, and fees
14
<PAGE>
and expenses of counsel or other advisors to the Selling Shareholders) in
connection with the registration of the Shares.
The Company has agreed to bear the costs of registering the shares of
Common Stock offered hereby under the Securities Act of 1933, as amended.
Each Selling Shareholder will deliver a Prospectus in connection with the
sale of shares of Common Stock offered hereby.
On or prior to the effective date, each of the Selling Stockholders as a
condition to the inclusion of his shares herein shall be required to represent
and warrant to, and agree with the Company that, during such time as he or she
may be engaged in a distribution of the shares of Common Stock offered
hereunder, such Selling Stockholder will, among other things, (a) not engage in
any stabilization activity in connection with the Company's securities, (b)
furnish each broker or dealer through whom or which he offers securities copies
of the Prospectus, as may be required, (c) inform such broker or dealer as to
the number of shares of Common Stock he is selling, that such securities are
part of a distribution and that he is subject to the provisions of Regulation M
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended ("Exchange Act"), (d) report weekly to the Company all sales, pledges
and other dispositions of the shares of Common Stock covered hereby if any such
shall have occurred, and (e) not bid for, or purchase, any Company securities
other than as permitted under the Exchange Act.
Each of the Selling Stockholders has been advised by the Company that he or
she may not, during any period during which the shares of Common Stock are being
offered, use or disseminate information concerning the Company other than this
Prospectus. In addition, each of the Selling Stockholders has confirmed that he
has no material adverse information with regard to the current and prospective
operations of the Company except as may be disclosed in this Prospectus, and
that the reason prompting the sale of any securities by any Selling Stockholder
is to realize cash from time to time for investment, business or personal
reasons.
The Company has agreed that it will furnish the Selling Stockholders a
reasonable number of copies of this Prospectus.
15
<PAGE>
MARKET FOR THE COMPANY'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The Company's common stock, redeemable warrants (each of which entitles the
holder to purchase one-twentieth of one share of common stock at a price of
$2.375 or $47.50 per share through the close of business on October 31, 1997, or
an earlier redemption date) and units (each of which is comprised of three
shares pre-reverse split and .15 shares post reverse split of common stock and
two redeemable warrants) traded on the National Association of Securities
Dealers, Inc., Automatic Quotation System ("NASDAQ") from December 19, 1989, the
effective date of the Company's Registration Statement on Form S-18, until
August 27, 1992. At that time, the Company fell below the net asset requirement
for continued listing and was subsequently disqualified. Since such date, the
Company's securities have traded on the Electronic Bulletin Board maintained by
NASDAQ. Prior to December 19, 1989, there was no market for the Company's
securities. The table below sets forth the high and low closing bid prices for
the common stock, redeemable warrants and units during the period January 1,
1995 to December 31, 1996, as reported on the Electronic Bulletin Board; and, as
adjusted to take into effect a one-for-twenty reverse stock split effected on
October 4, 1996. The quotations represent inter-dealer quotations without
adjustment for retail mark-ups, mark-downs or commissions and may not represent
actual transactions:
<TABLE>
<CAPTION>
PERIOD COMMON STOCK WARRANTS UNITS
HIGH LOW HIGH LOW HIGH LOW
<S> <C> <C> <C> <C> <C> <C>
1st Quarter 1995 $16.875 $11.250 $0.188 $0.063 $4.000 $1.500
2nd Quarter 1995 $13.750 $ 5.625 $0.125 $0.063 $4.000 $0.250
3rd Quarter 1995 $ 8.125 $ 3.125 $0.188 $0.188 $1.125 $0.250
4th Quarter 1995 $ 8.438 $ 1.875 $0.188 $0.188 $1.125 $0.250
1st Quarter 1996 $14.063 $ 5.938 $0.050 $0.010 $1.625 $0.250
2nd Quarter 1996 $ 7.188 $ 4.688 $0.010 $0.010 $1.000 $1.000
3rd Quarter 1996 $ 6.250 $ 2.813 $0.010 $0.010 $1.000 $0.500
4th Quarter 1996 $ 4.063 $ 0.875 $0.010 $0.010 $0.500 $0.500
1st Quarter 1997 $ 2.297 $ 0.875 $0.010 $0.010 $0.500 $0.500
2nd Quarter 1997 $ 1.625 $ 0.625 $0.010 $0.010 $0.500 $0.500
3rd Quarter 1997 $ 1.844 $ 0.813 $0.010 $0.010 $0.500 $0.500
4th Quarter 1997 $ 1.750 $ 0.750 $0.010 * $0.500 $0.500
1st Quarter 1998 $ 1.468 $ 0.687 $0.010 * $0.500 $0.500
</TABLE>
* Less than $ 0.010
The above amounts have been retroactively adjusted for a 1 for 20 reverse
stock split, which occurred on October 4, 1996.
16
<PAGE>
On April 30, 1998, the closing bid prices for the common stock, as reported
by the NASDAQ Electronic Bulletin Board, was $1.03. The Company has been
advised that there are no current quotations available for the Warrants or
Units.
At the close of business on March 17, 1998, there were approximately 400
holders of record of the common stock and approximately 40 holders of record of
the redeemable warrants.
The Company has not paid any dividends on the common stock since inception
and intends to retain any future earnings for the development of its business.
Future dividends on the common stock, if any, will be dependent upon the
Company's earnings, financial condition, the dividend priority of any preferred
shares and other relevant factors as determined by its Board of Directors.
No dividends were paid on Series B Convertible Preferred Stock during 1996
or 1997. Cumulative unpaid dividends on the Series B Convertible Preferred
Stock as of December 31, 1997 totaled $25,000. During August 1996, the holder
of 500 of the then 1,500 issued and outstanding shares of Series B Convertible
Preferred Stock converted his shares and all accrued dividends thereon into
2,500 shares of Common Stock (as adjusted for the reverse stock split effected
in October 1996). The conversion of the Series B Preferred Shares was in
accordance with the formula set forth in the Certificate of Designation for such
security and the accrued dividends were converted at the market price for the
Common Stock at the date of the conversion. In March 1996, the 672.5 shares of
Series D Convertible Preferred Stock and all accrued dividends thereon were
converted to Common Stock at $.375 per share ($7.50 as adjusted for the reverse
stock split). All unpaid dividends on the preferred stock must be paid before
dividends can be paid on the Common Stock.
SELECTED FINANCIAL DATA
The following selected financial data for each of the periods presented for
the two years in the period ended December 31, 1996 and 1997 are derived from,
and should be read in conjunction with the Company's audited financial
statements, and the Company's unaudited financial statements, including the
notes thereto, for the three month period ended March 31, 1998, included
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
STATEMENT OF OPERATIONS
YEARS ENDED THREE MONTHS ENDED
DECEMBER 31, MARCH 31,
------------ ------------------
1997 1996 1998 1997
---------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Net sales $1,995,317 $ 5,285,149 $ 765,239 $ 732,641
Gross profit (loss) 98,907 (1,584,971) 216,951 123,119
Net income (loss) 473,031 (8,122,815) (815,029) (1,100,390)
Net income (loss) allocable to common $ 203,867 $(8,122,815) (815,029) (1,264,118)
shareholders
Net income (loss) per share $ .03 $ (1.58) $ (0.14) $ (0.18)
Weighted average common shares 5,831,404 5,133,665 5,821,635 6,856,961
</TABLE>
17
<PAGE>
<TABLE>
BALANCE SHEET DATA:
DECEMBER 31, 1997 DECEMBER 31, 1996 MARCH 31, 1998
<S> <C> <C> <C>
Working capital (deficit) $1,503,938 $(1,217,296) $1,170,867
Total assets 3,912,263 1,836,514 3,141,301
Total liabilities 1,634,266 2,330,343 1,215,820
Stockholder's equity (deficit) 2,277,997 (493,829) 1,925,481
</TABLE>
18
<PAGE>
MANAGEMENT'S DISCUSSION & ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
CAUTIONARY STATEMENT FOR PURPOSES OF "SAFE HARBOR PROVISIONS" OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995.
EXCEPT FOR HISTORICAL FACTS, ALL MATTERS DISCUSSED IN THIS PROSPECTUS, WHICH ARE
FORWARD LOOKING, INVOLVE A HIGH DEGREE OF RISK AND UNCERTAINTY. POTENTIAL RISKS
AND UNCERTAINTIES INCLUDE, BUT ARE NOT LIMITED TO, COMPETITIVE PRESSURES FROM
OTHER FOOD COMPANIES AND WITHIN THE GROCERY INDUSTRY, THE IMPACT OF QUALITY
PROBLEMS EXPERIENCED IN 1996, THE LACK OF ADEQUATE CAPITAL TO FUND CONTINUING
OPERATIONS, ECONOMIC CONDITIONS IN THE COMPANY'S PRIMARY MARKETS AND OTHER
UNCERTAINTIES DETAILED FROM TIME-TO-TIME IN THE COMPANY'S SECURITIES AND
EXCHANGE COMMISSION FILINGS.
YEARS ENDED DECEMBER 31, 1997 AND 1996
- --------------------------------------
The 1997 year can best be characterized as one of regrouping and re-
energizing. The first half of the year was spent in attempting to salvage
deteriorating customer and broker relationships resulting from product returns
due to mold, the inability to ship complete orders as a result of liquidity
problems created, in no small way, by the mold problem, and the broker
dissatisfaction and their lack of commissions from a lack of paid sales. In
addition, management focus was clearly on the preparation for the arbitration
involving Keebler. That effort was rewarded when the arbitration finally
resulted in the Company receiving $6,750,000 in cash in July 1997. See Note 16
to the Consolidated Financial Statements for a detailed explanation of the costs
associated with the recovery.
The second half of 1997 was devoted to repairing the damages done to the
Company's customers and brokers. These efforts involved detailed reconciliation
of customer accounts, discussions by senior management with the merchandising
managers of these customers to resolve any major disputes, and the final
settlement of a business relationship, with at least an understanding going
forward of how future transactions in general would be handled.
In product development, the Company began, after June 1997, to focus on
products to be introduced in the last quarter of 1997 and in 1998. The first
product was a reformulation of the existing toaster pastry products marketed
under the name Toast'N Jammers, plus the addition of two new frosted flavors
named Apple Cobbler and Cinnamon Toast. The new flavors increased the line to a
total of eight: frosted and unfrosted strawberry, cherry and blueberry, plus
apple cobbler and cinnamon toast. The new formulation was introduced after
Thanksgiving and the customer response to the flavors has been excellent.
Additionally, the Company began the reformulation of its chocolate truffles
marketed under the name Juliette's Private Collection. The reformulation was
completed in the last quarter of 1997 and the first two truckloads of product
were shipped around Christmas. Other products under development are scheduled
for introduction in the first half of 1998.
The Company used the remainder of 1997, after the Keebler award, to improve
its vendor relationships by negotiating multiple monthly payment schedules for
some of the Company's major creditors. This process, which occurred over a three
month period, resulted in deferred payment schedules being negotiated for over
$650,000 of the Company's liabilities.
NET SALES
The liquidity issues which created inventory availability problems and the
continued fallout from the mold significantly reduced sales in 1997 compared to
1996. In 1997 sales were $1,995,317 compared to $5,285,149 in 1996, a reduction
of $3,289,832 or 62.2% of 1996 sales. Fudgets and Caketts, marketed under the
name Vitafort and the products associated with the mold, represented $3,751,858
of 1996 sales or 71.0% of the total, while in 1997 the products represented
$754,408 or 37.8% of total 1997 sales. The decline of $2,997,450 for these
products represents almost the entire reduction between 1996 and 1997. In
19
<PAGE>
addition, sales of Auburn Farms brands products decreased by $300,624 due to the
problems discussed above which resulted in the Company not being able to ship
complete and timely orders.
GROSS PROFIT
Gross profit in 1997 was $98,907 or 5.0% of sales, compared to a gross loss
of $1,584,971 in 1996, an increase of $1,683,878 from 1996 to 1997. The
improvement of gross profit in 1997 over 1996 is due, in large part, to products
returned in 1996, sales of products in 1996 at less than list price, and product
that was destroyed in 1996 because it was not saleable. The product returns due
to mold continued to be a source of margin erosion. In addition, the lack of
customer acceptance of the Company's Fudgets and Caketts manifested itself in
reduced customer sales of other products. The Company also began experiencing
serious customer complaints resulting in chargebacks of Auburn Farms and
Nature's Warehouse products, which in some cases were shipped to the customer
prior to the acquisition of Auburn Farms brands and reformulations by the
Company. Finally, the reduced volume of sales translated to increased inventory
levels since some of the co-packers have minimum production quantities. The
increase in inventory levels created further margin erosion as the Company was
then forced to sell the products at prices which, for the most part, were at or
slightly above inventory cost. For the Company to achieve higher gross margins,
it must increase its sales volume to eliminate selling inventory with short
expiration periods, which requires selling to liquidators at less than normal
list price.
OPERATING EXPENSES
RESEARCH AND DEVELOPMENT
In 1997, product development expenses were $337,806 compared to $737,044
for the same period in 1996, a reduction of $399,238 or 54%. The decrease is due
in part to the reduced emphasis in the first half of 1997 because of the
financial difficulties of the Company. Also, the Company made the decision to
work in conjunction with its co-packers in developing new products or enhancing
existing products. These joint efforts resulted in reduced cost to the Company
plus the added benefit of having the co-packer who will be the ultimate
manufacturer, also be an integral part of the development process and thus "take
ownership" of the program along with the Company. The reduction in staff,
$102,790, the closing of the office in Petaluma, California, $185,755, and the
reduction in travel, $107,920, accounted for approximately $396,000 of the total
reduction between 1997 and 1996.
SALES AND MARKETING
The lack of sales is reflected in the reduction in sales and marketing
expenses from $3,029,480 in 1996 down to $1,239,460 in 1997, a reduction of
$1,790,020 or 59.1%. The reduction in promotion, advertising, and product
introduction fees of $1,436,873 between 1996 and 1997 are due in large part to
the Company's decision to defer new product development and related expenditures
and to use advertising and promotion dollars only where there is likely to be
measurable value. The other cost reductions in staffing and related expenses,
$69,255, and travel, $207,626, are primarily the result of the problems in the
first half of the year associated with the liquidity issue and the continued
customer complaints.
GENERAL AND ADMINISTRATIVE
The effort expended in the Keebler arbitration and in improving the
systems, procedures, and administrative functions is evident by the fact that
the general and administrative expenses were $2,672,946 in 1997 and $2,721,321
in 1996, a reduction of $48,375. The emphasis on Keebler and the settlement of
the other various legal cases reduced overall legal expenses by $28,964 after
taking into account the payment by Keebler of $767,000 against the legal fees
and costs as part of the overall settlement. In addition, the liquidity problems
in the first part of 1997 and the decision by the Company not to replace certain
administrative staff positions resulted in a reduction in payroll and related
expenses, including consulting, of $43,611 in 1997 compared to 1996. While this
reduction is consistent with the Company's
20
<PAGE>
effort to reduce expenses, as the business level increases in the future, such
continued cost saving measures will be difficult to maintain.
INCOME TAXES
As of December 31, 1997, the Company had unused Federal and California net
operating loss carryforwards of approximately $19,600,000 and $6,400,000,
respectively, available to offset future Federal taxable income and future
California taxable income. In addition, the Company had unused research and
experimental credits of $44,000 and $26,000 for Federal and California state
purposes. The unused net operating loss and credit carryforwards expire in
various amounts through the year 2012. In contrast to Federal net operating
losses, only 50% of the California net operating losses incurred subsequent to
December 31, 1986 may be carried forward. The California net operating losses
will expire in various amounts through the year 2002.
Net deferred tax assets of approximately $7,605,000 resulting from net
operating losses, tax credits and other temporary differences have been offset
by a valuation allowance since management cannot determine whether it is more
likely than not such assets will be realized.
Due to restrictions imposed by the Internal Revenue Code regarding
substantial changes in ownership of companies with loss carryforwards, the
utilization of the above-mentioned net operating losses may be limited as a
result of changes in stock ownership. The annual utilization of these losses is
limited to an amount equal to the estimated fair value (for income tax purposes)
of the Company at the point of stock ownership change, multiplied by the long-
term tax-exempt rate then in effect. The annual limitation has not been
quantified at this time.
INTEREST INCOME AND EXPENSE
Interest income was $78,070 in 1997 and $49,319 in 1996. The loan proceeds
from the Keebler arbitration have been invested in short term government
securities which do not carry high interest rates, but are almost risk free.
Interest expense was $214,690 in 1997 compared to $50,509 in 1996. The
increase is due primarily to the lending arrangement with Coast Business Credit
which has a $15,000 per month minimum interest clause in the contract. In 1997,
this amount represented $180,000 of the total interest expense.
LIQUIDITY AND CAPITAL RESOURCES
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
---- ----
<S> <C> <C>
Net Cash From (Used In) Operations $1,790,893 $(5,523,462)
Net Cash Used in Investing Activities (214,095) (172,896)
Net Cash Provided By Financing Activities 433,371 4,568,819
Working Capital (Deficit) 1,503,938 (1,217,296)
</TABLE>
Although the cash position had improved significantly at year end due to
the arbitration settlement, the Company is still under pressure to maintain and
improve its financial condition and has yet to generate profitable operations.
21
<PAGE>
The Company is continuing to repair the relationships with its brokers and
customers (distributors), but the effort involved is both time consuming on
management's part and costly in that the effort detracts time which could
otherwise be spent procuring orders. Although the vendor relationships are now
stable, the Company may again jeopardize this area should the liquidity problem
again become extreme.
The Company has suffered recurring losses from operations as of December
31, 1997. Although the Company has raised additional capital after year-end 1997
(see Note 15 to the Consolidated Financial Statements), it has not generated
sufficient revenue-producing activity to sustain its operations. The Company's
independent certified public accountants have included a modification to their
opinion which indicates there is substantial doubt about the Company's ability
to continue as a going concern. See "Note 2" to the Consolidated Financial
Statements for additional information. The Company is attempting to raise
additional capital to meet future working capital requirements, but may not be
able to do so. Should the Company not be able to raise additional capital, it
may have to severely curtail operations.
The Company is reducing its cost of sales by centralizing the warehousing
of its products in a single location and negotiating lower rates with existing
manufacturers or by selecting another competent less expensive producer. In
addition, the Company increased prices on the majority of its products effective
August 1, 1997 and changed its terms of sale to F.O.B. the Company's warehouse.
The Company also eliminated the cash discount for prompt payment since most
customers were taking the discount beyond the terms. The Company has also
introduced reformulated products at the end of 1997 and plans to introduce new
products in 1998. These steps, coupled with improvements in subcontract
manufacturing quality control and quality assurance and monitoring improvements
in Company internal control and communications with respect to product returns
and deductions, should improve the Company's prospects to achieve profitability.
The Company acquired Global International Sourcing, Inc., ("Global") a
Nevada corporation, by acquiring the stock of the corporation from its sole
shareholder. Global is a company with international contacts to provide natural
and low fat food products for Vitafort to sell into the United States market at
a cost significantly below those found in the United States for similar
products. The Company had advanced $193,818 to Global as of year end to meet
operating expenses and fund inventory purchases for future sales. In the event
the acquisition is not completed, the Company feels Global has the resources to
repay the advances.
As of December 31, 1997, the Company had unused Federal and California net
operating loss carryforwards of approximately $19,600,000 and $6,400,000,
respectively, available to offset future Federal taxable income and future
California taxable income. In addition, the Company had unused research and
experimental credits of $44,000 and $26,000 for Federal and California state
purposes. The unused net operating loss and credit carryforwards expire in
various amounts through the year 2012. In contrast to Federal net operating
losses, only 50% of the California net operating losses incurred subsequent to
December 31, 1986 may be carried forward. The California net operating losses
will expire in various amounts through the year 2002.
Net deferred tax assets of approximately $7,605,000 as of December 31, 1997
resulting from net operating losses, tax credits and other temporary differences
have been offset by a valuation allowance since management cannot determine
whether it is more likely than not such assets will be realized.
Due to restrictions imposed by the Internal Revenue Code regarding
substantial changes in ownership of companies with loss carryforwards, the
utilization of the above-mentioned net operating losses may be limited as a
result of changes in stock ownership. The annual utilization of these losses is
limited to an amount equal to the estimated fair value (for income tax purposes)
of the Company at the point of stock
22
<PAGE>
ownership change, multiplied by the long-term tax-exempt rate then in effect.
The annual limitation has not been quantified at this time.
CREDIT FACILITY
In August 1996, the Company entered into a revolving credit facility with
Coast Business Credit, that provides a credit line of up to $4,000,000 subject
to certain covenants. Advances made to the Company under the facility are based
on a certain percentage of eligible accounts receivable, as defined, and a
certain percentage of eligible inventory, as defined. The amount of inventory
advances under the facility cannot exceed $500,000. The initial term of the
facility ends August 1998, with automatic renewals thereafter for one year
periods. Advances under the facility bear an interest rate at the Bank of
America NT plus 3%, and are secured by a first priority lien on all of the
Company's assets. Minimum interest charges are currently $15,000 per month.
The Company paid $40,000 to the institution upon execution of the agreement, and
$40,000 to a facilitator in connection with the placement of the loan.
The Company is using the proceeds of advances under the facility to help
meet its current working capital requirements. The amount due, under this
credit facility, was $440,022 on December 31, 1996, and $60,757 on December 31,
1997.
As of December 31, 1996 and subsequently, the Company was in violation of
certain covenants in that it had not maintained minimum tangible net worth of at
least $1,500,000 and minimum working capital of $1,000,000. If the Lender had
exercised its rights under the Agreement, it could have requested customer
payments be made directly to it, sold the finished goods inventory at auction,
and seized and sold the fixed assets of the Company until the obligation had
been satisfied. The Company classified the entire loan as a current liability as
of December 31, 1996. On September 30, 1997, due to receipt of the award from
the Keebler arbitration, the Company was no longer in violation of the loan
covenants. As of December 31, 1997, the Company was not in violation of any
covenants of the credit facility. No assurance is given that the Company will
not be in violation of any covenants in the future.
GENERAL
The Company believes that its ability to continue as a going concern has
been severely jeopardized by the adverse effects in the marketplace of the mold
in its products caused during the manufacturing process. Although the Company
believes the manufacturers, and in particular, the Keebler Company, bears
primary responsibility for this problem, there can be no assurance that the
Company can repair the damage to its reputation and financial condition. The
substantial operating losses have reduced the liquidity position of the Company
significantly, which in turn, has depressed the stock price of the Company. The
stock price reduction has further diluted the equity position of the Company as
it attempts to raise capital to maintain a viable operation.
In the future, the Company must focus on existing products, other than
those previously tainted by the mold problem, and maintain an operating margin
sufficient to cover operating expenses. The Company is currently directing its
limited resources toward existing products, which are not tainted in the minds
of retailers and consumers, and for which the Company is receiving encouraging
signs that customer acceptance is increasing. Additionally, any costs not
directly related to generating revenue have been significantly curtailed. The
future ability of the Company to raise sufficient capital to meet existing and
future obligations to allow it to continue to operate is not without a high
degree of risk. Substantial doubt exists as to the Company's ability to
continue as a going concern. Should the Company not be successful in raising
additional needed capital, operations would have to be further curtailed.
23
<PAGE>
THREE MONTHS ENDED MARCH 31, 1998 AND 1997
- ------------------------------------------
RESULTS OF OPERATIONS:
The Company continues to focus on the development of new products and the
repair of customer relationships, especially in the northeast, where the
majority of the customers for Fudgets and Caketts were located and thus a
significant portion of the past problems. Progress was made in the development
area for new products to be introduced in the second and third quarters of 1998.
The Company has recently expanded its product line by utilizing its new
tradename "Avenue of the Stars" to sell products through motion picture
licenses. However, the lack of sales velocity, especially in the Fudgets and
Caketts product lines, has negatively impacted the overall results.
Consolidation of the warehouse facilities was completed in the first quarter and
should bring the Company savings for the balance of the year compared to the
cost of maintaining separate facilities. Additionally, the Company has
reestablished credit terms with the majority of its co-packers and has finalized
negotiations for payment schedules for some of its significant creditors.
The proceeds from the Keebler Company arbitration continue to support the
Company's immediate cash requirements through the current period of product
development and customer reestablishment. The new products, with targeted
improved margins, should improve the sales levels for the second quarter of 1998
and beyond, although there can be no assurance that the Company can maintain any
significant increased level of sales over any extended time periods.
The acquisition of Global International Sourcing in the first quarter of
1998 has improved the Company's access to overseas products. This should result
in improved sales. Additionally, Global brings its own customers and sales
level to the Company, although functioning primarily as a broker, it does not
provide the same gross profit levels targeted for the Company's current business
areas.
The development programs for new products continue, with certain of these
products scheduled for release in the second and third quarters of 1998. While
such introductions may have little, if any, impact in the quarter the product is
introduced due to the amount of time required for distribution into the
channels, it should provide a cascading effect over future periods.
NET REVENUES:
For the three months ended March 31, 1998, net sales were $732,641 compared
to $765,239 for the same period in 1997, a decrease of $32,598 or approximately
4.3%. Global contributed $460,977 in sales during the three month period ended
March 31, 1998. The loss of Fudgets and Caketts sales, which in the three months
ended March 31, 1997 were $361,701, were not replaced by any other of the
24
<PAGE>
Company's other products and represented $6,257 in net revenues for the three
months ended March 31, 1998. In May 1998, the Company discontinued the Caketts
line of products and two of the three Fudget products. The introduction of
Juliette's Private Collection chocolate truffles in the last quarter of 1997
continued in this first quarter of 1998 where sales were $70,091 for the three
months ended March 31, 1998 compared to no sales for the same period in 1997.
The Auburn Farms/Natures Warehouse product lines weakened somewhat in the
quarter ended March 31, 1998 where sales were $210,371 compared to $362,021 for
the same period in 1997. The loss of Auburn Farms sales reflects the Company's
opinion that consumer tastes are shifting from the no fat products, which are
usually associated with no taste, to reduced fat products which do provide the
consumer with reasonably good taste. Most of the new products scheduled for
introduction are either reduced fat or low fat.
GROSS PROFIT:
Gross profit decreased from $216,951 for the three months ended March 31,
1997 to $123,119 for the three months ended March 31, 1998, a decrease of
$93,832. The decline is due to the low gross profit margins, which are normally
generated from Global. For the quarter ended March 31, 1998, Global gross profit
was $52,055 or 11.3% of net revenues while the other operating units of Vitafort
contributed $78,264 or 22.6% of net revenues. In addition, the Company wrote off
from inventory packaging for certain of its products where the labeling no
longer complied with the Food and Drug Administration guidelines for ingredient
listing. This write off was due to a new law passed at the end of 1997 requiring
certain changes in ingredient listing guidelines. For the quarter ended March
31, 1998, the Company charged approximately $49,362 to cost of sales for this
labeling change. Excluding this charge, the gross profit margin for the non-
Global business in this quarter would have been $127,626 or 36.7%, which is
close to Vitafort's gross profit margin target.
OPERATING EXPENSES:
- -------------------
Overall operating expenses have increased over the previous year due to
staff increases as the Company again begins to increase its efforts in the sales
and marketing area and in administrative functions to improve support for the
overall anticipated increase in volume. The anticipated decrease in legal
expenses has not occurred due to the concentration of effort in the defense of
the Ellis case and the increasing effort in the Barbara's/New Life litigation.
Finally, the other professional fees associated with the audit for December 31,
1997 were primarily incurred in the quarter ended March 31, 1998 while in 1997
the majority of costs and expenses were incurred in the second calendar quarter.
The Company is hopeful that the level of professional accounting expenses will
decline in the subsequent quarters. The legal expenses, however, may continue
for some time in the future.
RESEARCH AND DEVELOPMENT:
Total expenses for product development in the quarter ended March 31, 1998
were $61,359 compared to $39,350 for the same period in 1997, an increase of
$22,009. The majority of the increase in expenses was related to the employment
of outside consultants to assist the staff in insuring development of new
formulations. In addition, these consultants were working with the Company's
co-packers to
25
<PAGE>
maintain acceptable quality assurance and to insure that quality control
measures are in place during the manufacturing process of the Company's
products. The cost for the three months ended March 31, 1998 for outside
consultants was $51,750 compared to $24,371 for the same period in 1997, an
increase of $27,379.
SALES AND MARKETING:
Total sales and marketing expenses for the quarter ended March 31, 1998
were $419,949 compared to $379,797 for the three months ended March 31, 1997, an
increase of $40,152. Global sales and marketing expenses for the quarter ended
March 31, 1998 were $161,852 while Vitafort sales and marketing expenses were
$258,097. Without the acquisition of Global, the overall sales and marketing
expenses for the quarter would have been less than the previous year period by
$121,700. The decrease in Vitafort expenses were primarily in the areas of
commissions, $20,833, sales promotion expenses, $55,088 and product introduction
fees, $95,546, all of which are related to the decline in overall sales volume.
These reductions were offset by the $43,417 increase in staffing costs to
support the introduction of new products and the increase in customer service.
GENERAL AND ADMINISTRATIVE:
For the quarter ended March 31, 1998, total general and administrative
expenses were $724,884 compared to $586,232 for the same quarter ended March 31,
1997, an increase of $138,652. Staff increases and related expenses increased by
$122,044 for the three months ended March 31, 1998 compared to the three months
ended March 31, 1997 due to the addition of a new Chief Operating Officer and
the conversion of certain staff positions from temporary consulting
classifications to permanent employees. The Company also incurred an increase
in the building lease of its facilities when the lease expired in August 1997.
OTHER INCOME (EXPENSE):
The interest income continues to reflect the Company's investment of excess
cash in short term investment instruments. As the amount of the total
investment declines due to cash requirements, the amount of income will also
decline.
LIQUIDITY AND CAPITAL RESOURCES:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
1998 1997
------------ -----------
<S> <C> <C>
Net Cash Used for Operations $(1,393,749) $(517,198)
Net Cash Used for Investing Activities (71,383) -
Net Cash Provided by Financing Activities 335,039 721,745
Working Capital (Deficit) 1,170,867 (953,002)
</TABLE>
26
<PAGE>
The Company continues to expend resources in the product development area
for the scheduled introduction of new products. However, there is no guarantee
that these products, once introduced in the market, will achieve the anticipated
level of sales forecasted by the Company nor reach the gross profit margin
targeted by the Company for each of the products. In addition, while the
Company's financial condition has improved over the past twelve months, there is
no guarantee that new co-packers will provide the Company with credit terms.
Nor is there any assurance that the Company will be able to meet its future cash
obligations without additional external funding and improved sales. Neither
additional financing nor improved sales can be guaranteed to occur in the
future. While the Company has made significant improvement in rebuilding
customer relationships, the process has been slow and costly, and there is no
guarantee that these customers will purchase products from the Company with the
same enthusiasm that they have in the past.
As of March 31, 1998, the Company is in violation of a covenant with
respect to $1.5 million of tangible net worth as required under its existing
revolving credit facility with Coast Business Credit. The Company is in
negotiation with the lender to resolve the violations.
In March 1998, the Company entered into a subscription agreement in the
amount of $500,000 for 500 shares of Series A 1997 Preferred Stock. The
preferred stock has a cumulative dividend rate of 6% with no voting rights. The
conversion price is at a discount of 21.5% if the market price of the stock is
below $0.6875. If the market price is above $0.6875, the exercise price is the
fair market value on the day of exercise; however, the holder receives warrants
in sufficient quantity to achieve a profit equal to the computed 21.5% discount.
The holder has agreed not to convert before August 10, 1998 in exchange for
these terms. The proceeds were $499,000, net of escrow fees.
The Company has suffered recurring losses from operations as of March 31,
1998. Although the Company has raised additional capital, it has not generated
sufficient revenue-producing activity to sustain its operations. The Company's
independent certified public accountants have included a modification to their
opinion which indicates there is substantial doubt about the Company's ability
to continue as a going concern. See "Note 9" to the consolidated financial
statements for additional information. The Company is attempting to raise
additional capital to meet future working capital requirements, but may not be
able to do so. Should the Company not be able to raise additional capital, it
may have to curtail operations.
27
<PAGE>
IMPACT OF INFLATION
The Company believes that inflation has not had a material impact on its
operations. However, substantial increases in material costs could adversely
affect the operations of the Company for future periods.
YEAR 2000
The Company's accounting software currently does not utilize a four digit
year field; however, the Company has been assured by the software manufacturer
and independent consultants that all necessary modifications for the year 2000
have been or will be made and tested timely. The Company does not expect the
cost of these modifications will have a material effect on its financial
position or results of operations. The Company currently does not interact
electronically with either customers, suppliers or other entities that could be
impacted by Year 2000 issues.
RECENT NEW ACCOUNTING STANDARDS
DISCLOSURE OF INFORMATION ABOUT CAPITAL STRUCTURE
Statement of Financial Accounting Standard No. 129, "Disclosure of
Information about Capital Structure," ("SFAS 129") issued by the FASB is
effective for financial statements with fiscal years ending after December 15,
1997. The new standard reinstates various securities disclosure requirements
previously in effect under Accounting Principles Board Opinion No. 15, which has
been superceded by SFAS No. 128. The Company adopted SFAS No. 129 on December
15, 1997 and it did not have any effect on its financial position or results of
operations.
REPORTING COMPREHENSIVE INCOME
Statement of Financial Accounting Standard No. 130, "Reporting
Comprehensive Income," ("SFAS 130") issued by the FASB is effective for
financial statements with fiscal years ending after December 15, 1997. Earlier
application is permitted. SFAS 130 establishes standards for reporting and
display of comprehensive income and its components in a full set of general-
purpose financial statements. The Company adopted SFAS 130 on January 1, 1998
and it did not have any effect on its financial position or results of
operations.
DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION
Statement of Financial Accounting Standards No. 131, "Disclosures about
Segments of an Enterprise and Related Information" ("SFAS 131") issued by the
FASB is effective for financial statements with fiscal years ending after
December 15, 1997. SFAS 131 requires that public companies report certain
information about operating segments, products, services and geographical areas
in which they operate and their major customers. The Company does not expect
adoption of SFAS 131 to have any effect on its financial position or results of
operations; however, disclosures with respect to the aforementioned items may be
increased.
REPORTING ON THE COST OF START-UP ACTIVITIES
Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities." (SOP 98-5") issued by the Accounting Standards Executive Committee
is effective for financial statements with fiscal years beginning after December
15, 1998. SOP 98-5 requires that the costs of start-up activities should be
expensed as incurred. At the time of adopting this SOP, the initial application
should be reported as the cumulative effect of a change in accounting
principles. At March 31, 1998 and December 31, 1997, the Company capitalized
product introduction costs of $14,250 and $10,711, respectively. These costs are
considered as start-up activities under SOP 98-5. The Company does not believe
that the adoption of this SOP will have a material effect on its financial
position, results of operations or cash flows.
28
<PAGE>
THE BUSINESS OF THE COMPANY
GENERAL
Vitafort International Corporation (the "Company" or "Vitafort" or
"Registrant") was formed as a California corporation in 1986, and reincorporated
as a Delaware corporation in 1989. Prior to May of 1993, Vitafort was in the
business of formulating and developing value-added foods and beverages for third
parties. In addition, the Company was also marketing branded seafood. In May
of 1993, these businesses were discontinued due to lack of revenues and profit
and later in the year the Company disposed of them. In the fall of 1993, the
Company installed new management, who selected a new direction for the Company.
Vitafort would begin developing fat free and low fat bakery snacks that would be
marketed under Company owned trademarks. Vitafort, however, did not own any
production facilities, so established contract manufacturers (co-packers) would
be utilized to manufacturer these branded products developed by the Company.
In the spring of 1994, at the Natural Food Expo in Anaheim, California,
Vitafort introduced its first branded product called Fudgets(TM), a single-serve
fat free brownie with icing. Four flavors of Fudgets were marketed throughout
1994 and 1995, while Vitafort research and development continued to develop
additional low fat and fat free snacks. During this period Fudgets were sold at
retailers such as: Price Costco (Bellevue, WA), Circle-K (Phoenix, AZ), Ralphs
(Compton, CA), Albertsons (Brea, CA), GNC (Pittsburgh, PA), Shop-Rite/Wakefern
(Woodbridge, NJ), along with many others. In addition, Fudgets were being
marketed to hundreds of health food stores across the country by natural food
distributors.
In the spring of 1995, the Company introduced double chocolate, cappuccino
and peanut flavor Fudgets in a multi-pack of five individually wrapped 1.4 oz.,
packages. These three flavors were test marketed through the year. In the
latter part of 1995, Vitafort signed a co-packing agreement with The Keebler
Company ("Keebler") and began the marketing introduction of four flavors of fat
free cakes called Caketts(TM) (lemon poppy, carrot, pound and banana). The
Company believes that this unique snack was the first individually portioned fat
free snack cake with an extended shelf life to be merchandised in the cookie
section of supermarkets.
In the fourth quarter of 1995, as the Company was completing the final
stages of its financing, the Company put in place the distribution
infrastructure that would support the roll out of these seven new flavors of
Fudgets and Caketts. In addition, the Company began the manufacture of Fudgets
at Michel's Bakery ("Michel's") at this time. Food brokers agreed to represent
the Vitafort product line and serve as the sales agents to the marketplace for
the Company.
The introduction of Fudgets and Caketts to grocery stores across the
country began in the first quarter of 1996, as retailers such as Acme
(Philadelphia, PA), Delchamps (Mobile, AL) and Shop-Rite/Wakefern (Woodbridge,
NJ) placed purchase orders for Fudgets and Caketts. The roll out continued in
the second quarter as Vitafort's distributors added Caketts and Fudgets to the
shelves of hundreds of chain stores including: Kroger (Cincinnati, OH),
Albertsons (Brea, CA), Meijer (Grand Rapids, MI), Albertsons (AZ, CA, UT and
TX), Price Chopper (Schenectady, NY) Demoulas (Tewksberry, MA), Winn-Dixie
(Jacksonville, Orlando and Tampa, FL), Kash and Karry (Tampa, FL), Publix
(Lakeland, FL) and others. In addition, the company received direct purchases
orders from Food Lion (Salisbury, NC), Kroger (Roanoke, VA) and Richfoods
(Richmond, VA), while procuring purchase orders attached to national print
advertisements with both Thrifty Payless and Eckerd Drugs, two large drug store
chains.
In the second half of 1996, Vitafort's distributors added Stop + Shop (MA),
Kroger (Atlanta, GA), Farmer Jack's (MI), Grand Union (NY), Ralphs (CA), Hughes
(CA), and others to the supermarkets selling the Company's products. The
largest purchase order in the history of the Company was also received as K-Mart
placed a $550,000 order for product as part of a national advertisement for
2,300 stores.
During the second quarter of 1996, the Company received complaints of mold
from Caketts being manufactured by The Keebler Company, Vitafort's primary co-
packer at the time. The Company notified Keebler that it had received these
complaints and engaged Keebler in discussions to correct the problem.
29
<PAGE>
Keebler attempted to solve the mold problem by creating an inspection process
that would identify the acceptable product for reshipment. The Company shipped
this inspected product to its customers. Thereafter, however, the Company
received reports that this inspected product also turned moldy. Vitafort
continued to engage Keebler in discussions regarding this problem, but in
August, Keebler abruptly terminated the manufacturing agreement. This
interrupted the supply of Caketts to customers resulting in delayed shipments
and lost sales.
The Company anticipated strong orders toward the year-end of 1996 as
supermarkets across the country prepared for January and February healthy diet
promotions and advertisements. During the third quarter, the Company shipped
orders of Caketts and Fudgets produced by its new co-packer. In the fourth
quarter, however, complaints from retailers about mold on products produced by
Keebler (Caketts) by Michel's (Fudgets) continued. By December the Company
learned that the damage to the consumer acceptance of these brands caused by the
previously shipped defective product was greater than previously realized. This
quality problem created hundreds of consumer complaints that led to both loss of
distributor goodwill and a significant loss of shelf space in the supermarkets.
In addition, product had to be withdrawn from the marketplace. As a result,
fourth quarter sales were significantly adversely affected and costs relating to
this problem were much greater than previously anticipated.
During the first half of 1997, the Company continued to suffer declining
sales resulting from returned product, loss of distributor goodwill, and the
lack of adequate capital to resolve both broker financial issues and co-packer
payment demands. This liquidity issue was the primary cause of the lack of new
product effort, the maintenance of harmonious broker relations which could have
led to increased sales, and the Company's inability to comply with customer
requests that orders be shipped complete and on time.
The Keebler arbitration award announcement in June 1997 and the receipt of
proceeds in July 1997 allowed the Registrant to begin reestablishing mutually
acceptable payment terms with its suppliers, negotiating settlements of
chargebacks from its customers as a vehicle to reestablish channels of
distribution, and planning the product introduction schedules for the remainder
of 1997 and 1998. See Note 16 to the Consolidated Financial Statements.
During the second half of 1997, the Company focused its sales and marketing
efforts on reestablishing relationships with its distributors and brokers to
address past commission issues, chargebacks from retailer issues, and the
Company's ability to currently ship product on a timely basis.
While the Company has continued to ship Fudgets and Caketts, it has done so
in reduced volume due primarily to customer dissatisfaction with the brand name
based on past performance, not based on current product or availability. In
May 1998, the Company discontinued the Caketts line and two of the three
stockkeeping units ("SKU's") of Fudgets to avoid further customer illwill. The
Company believes there are some regional markets remaining for the product.
The Company attributes its poor 1996 and 1997 results primarily to the
quality control problems of its prior co-packers, particularly from the damage
caused by The Keebler Company. The Company believes that its current co-packers
have solved this problem and that the products currently being shipped will have
minimal quality control problems, although no assurances can be made as to the
level of quality control acceptability. In light of the fact that the Company
must overcome the damage to its Caketts and Fudgets brands caused by the 1996
quality control problems, there can be no assurance as to the level of success
the Company will achieve with its marketing plan in 1997 and beyond. In
addition, the Company will require additional capital to carry out the marketing
and sales programs scheduled for 1998 due to the current lack of operating
profits. Should the Company begin to generate operating profits, the future
capital requirements will be reduced, but there can be no assurance that the
Company will be able to do so.
The poor sales performance in 1998 may continue to erode working capital
and once again damage relations with suppliers that the Company has worked so
hard to re-establish. While the Company believes such sales performance will not
continue, no assurance can be given that it will not continue.
The Company's fat free and low fat snack items are based upon the Company's
proprietary formulas and procedures and are developed in conjunction with its
co-packers. The Company seeks to protect its proprietary information through
confidentiality agreements with employees, suppliers and
30
<PAGE>
manufacturers. These products are made from generally available ingredients,
which are then converted into the Company's products.
The Company introduced a new brand called Avenue of the Stars in late 1997
for snack foods and confectionery products. The purpose was to use motion
picture studios logos and trademarks for packaging differentiation of the
Company's products.
Although management believes that the Company's products are unique and are
superior in taste to competitively available products, the food industry is
characterized by the continual development of new products employing various new
technologies and processes. Additionally, the Company must overcome the
negative goodwill associated with the defective products produced by its former
co-packers. Accordingly, no assurance can be given that new products will not
be developed and marketed, which are superior to the Company's products in
taste, texture and feel and or that the Company's products will achieve or
maintain reasonable levels of market acceptance.
ACQUISITION OF AUBURN FARMS, INC. BRANDS
On May 2, 1996, pursuant to the terms of a letter agreement, dated May 1,
1996, and the attachments thereto (the "Foreclosure Purchase Agreement" or
"FPA"), the Company acquired the trademarks "Auburn Farms" and "Natures
Warehouse" and certain related trademarks, trade dress, and related intangibles
in a foreclosure sale from secured lenders to Auburn Farms, Inc., dba. Natures
Warehouse ("AFI"). The purchase price under the FPA consisted of a cash payment
of $75,000 and deferred payments based upon gross sales, as defined in the FPA,
of products sold by the Company which bear the acquired trademarks. The
deferred payment for AFI's existing products, as defined in the FPA, equals
three and one half (3 1/2%) per cent of gross sales for a period of thirty
months commencing May 1, 1996; three (3%) per cent of gross sales for the next
ensuing period of thirty months; two and one half (2 1/2%) per cent of gross
sales for the next ensuing period of thirty months; and two (2%) per cent of
gross sales for the next ensuing period of thirty months. For newly created
products, as defined in the FPA, which utilize the acquired trademarks, the
Company is required to pay a deferred purchase price equal to one and one half
(1 1/2%) per cent of gross sales for a period of 120 months commencing May 1,
1996. $72,000 of inventory was purchased under such option in 1996. The FPA
agreement also provides that the Company has the option to purchase certain
inventories of packaging materials from AFI. During 1996, sales of products
bearing the acquired trademarks were $1,337,475; and, the total deferred
payments under the FPA were $45,612. During 1997, 18,501 of deferred payments
were made under the FPA and total sales of products bearing the acquired
trademarks were $1,036,851. For the first quarter of 1998, sales of products
were $210,371 and deferred payments were $3,709.
The Company is using co-packers to produce products bearing the acquired
trademarks.
PRODUCT MANUFACTURING
The Company manufacturers its products by entering into agreements with
established food manufacturers ("co-packers"), who have the facilities, staff,
quality assurance and process control programs for the production of their own
products as well as the Company's products ("co-packer agreements"). Co-packer
relations are intended to enable the Company to secure the expertise of
qualified food manufacturers with respect to the development, manufacture and
packaging of the product; and, to achieve economies of scale in production and
staffing requirements, while providing production flexibility to meet changes in
product mix demand by customers that the Company could not achieve on its own.
Additionally, the Company benefits from, and relies upon, the production
experience and expertise of these companies while avoiding the capital outlays,
staffing requirements, quality control, legal process requirements and other
manufacturing costs and delays that the Company would encounter were it to
attempt to manufacture its products utilizing its own facility. However, there
can be no assurance that co-packers will meet their obligations.
31
<PAGE>
Management believes that the most recent switch in co-packer arrangements
has improved product quality and availability, while improving the Company's
gross profit margin. Management believes that the current co-packers have
sufficient capacity to meet the Company's requirements.
The Company is in the process of negotiating co-packing agreements with
other established firms to act as co-packers for various other products.
Management believes that, if the research and development of the products is
completed and the Company's capital resources allow, it will be able to select
co-packers and enter agreements on terms acceptable to the Company.
DISTRIBUTION
Vitafort utilizes distributors and brokers to market its brands of fat free
and low fat snacks. These distributors ship to grocery chains in the United
States. Wholesale club stores, drug store chains and mass merchandisers are
distributed, by the Company, directly into their warehouses. Management
believes that, with sufficient funding, distribution can expand throughout the
marketplace with additional products and distributors.
MARKETING
Vitafort developed a phased strategic marketing plan in the latter part of
1995, which continued into 1996, involving the development and expansion of the
Fudgets Fat Free Brownies and Juliette's Low Fat Chocolate Creams brands while
staging the rebuilding of the more mature Auburn Farms and Natures Warehouse
brands. The mold problem associated with the co-packers of Caketts and Fudgets
during 1996 has had a serious impact on the distribution channels of the
products. In addition, the liquidity problems caused by the same production
issue, has severely hampered the Company's ability to increase the distribution
of its products through the increase in product introduction costs. The Company
does not have formal agreements with its distributors which are the primary
customers of the Company, but delivers products under normal industry terms of
sales.
In connection with Auburn Farms and Natures Warehouse the Company has
changed packaging and formulations in an effort to appeal to a broader customer
base. The first new product was Toast `N Jammers, a toaster pastry line.
Combined with icing and a product presentation that is closer to mainstream
products, Vitafort is attempting to establish Toast `N Jammers as the standard
for the toaster pastry segment. The Company is preparing similar new products
for the other Auburn Farms brands. The severity of financial losses suffered as
a result of the product quality problem could hamper the Company's ability to
market Auburn Farms and Natures Warehouse products, as well as to execute other
projects.
INTELLECTUAL PROPERTY RIGHT PROTECTION AND TRADEMARKS
The Company believes that its trademarks do afford it some degree of
protection from competition and do allow it to differentiate its products from
those of its competitors through brand loyalty and identity. There are however,
no assurances that such trademarks may offer significant protection from
competitors or that the Company would be successful should litigation to protect
such trademarks become necessary. The Company is seeking to determine whether
its various formulas and procedures are patentable in the United States, and
relies upon non-disclosure, secrecy agreements and its common law rights in
order to protect its proprietary formulae, procedures, and other information.
No assurance can be given that such steps will adequately protect the Company
against competing products or that the Company will be able to adequately
enforce its rights against third parties who may be utilizing the Company's
proprietary formulae, procedures and other information. If the Company is
advised by counsel that any of its formulae, processes, procedures or other
techniques are patentable, then it may seek appropriate patent protection.
32
<PAGE>
The Company has developed several proprietary formulations for its
products. While these formulations may or may not be protected under the U.S.
Patent laws, they may have value inasmuch as they provide Vitafort with its
unique competitive edge. The Company has established brands within certain
market niches of major product categories. The consumer acceptance of the
nutritional and flavor profiles of the products, have been heavily influenced by
the proprietary formulations and processes.
The Company's trademarks and their marketing status are detailed below:
<TABLE>
<CAPTION>
TRADEMARK MARKETING ACTIVITY
- ----------------------- ----------------------------------------------------------------------------------
<S> <C>
VITAFORT This is an actively marketed mark and used on all Company material; however,
quality problems encountered in 1996 have impaired the value of this mark.
AUBURN FARMS Recently acquired trade name with existing presence in the specialty grocery
classes of trade.
NATURES WAREHOUSE Trade name acquired in May, 1996 with existing presence in the health food class
of trade.
TOAST `N JAMMERS A repositioned brand name with specialty grocery presence. With the
repositioned product, this brand has experienced expansion versus a year ago.
JAMMERS One of the all natural fat free cookie brands in both the health food and
specialty food classes of trade.
7-GRAINERS A snack cracker brand within the health food class of trade. This brand also
holds a shelf position within the specialty grocery class of trade.
AVENUE OF THE STARS A new mark used for products which shall be part of motion
picture licensing agreements.
JULIETTE'S PRIVATE A mark established for a line of low fat chocolate products first shipped in
COLLECTION December 1997.
CAKETTS This product once occupied significant shelf space in supermarkets throughout the
country and continues to maintain a minor presence. Quality problems associated
with this product, however, appear to have substantially diminished the value of
this mark. The Company ceased marketing Caketts in May 1998.
FUDGETS This was one of the key food products with distribution in a number of
supermarkets throughout the U.S. Quality problems encountered in 1996 have
severely limited the realization of this mark. The Company discontinued all but
one SKU in May 1998.
</TABLE>
GOVERNMENTAL REGULATION
In general, production, packaging, processing and labeling of food and
beverage products are subject to various federal and state regulations. The
Company relies upon the experience and expertise of its co-packers to assure
compliance with applicable federal and state regulations. The Company believes
that it is in compliance with all applicable governmental regulations.
RESEARCH AND DEVELOPMENT
The Company has modified its research and development strategies from prior
years. In the past, the Company retained highly trained technical support
professionals to independently develop formulations and work with contract
manufacturers to bring the products to market readiness. The strategy moving
33
<PAGE>
forward in 1997 and beyond is to work with existing manufacturers from the
outset and utilize their internal research and technical staff to develop new
products. By working in this manner, the Company intends to reduce its research
and development costs and to create a joint interest in "ownership" of a
successful, high quality product. This strategy inherently builds a strong
total quality end result.
The Company spent $337,806 and $737,044 on research and development in 1997
and 1996, respectively, and $61,359 in the first quarter of 1998. The Company
intends to create new products using the above strategy and to launch products
in the marketplace in 1998 and beyond. The current financial condition of the
Company, however, may preclude it from successfully accomplishing its goal.
COMPETITION
The Company is engaged in the highly competitive healthy food marketplace.
There are numerous companies with financial and business resources far greater
than Vitafort's, currently marketing healthy and fat free foods. The Company
seeks to compete based on the unique taste, texture and quality of its products
and by obtaining recognition for its brands.
The Vitafort brands compete within different categories and with different
products depending upon the class of trade and placement within retail outlets.
The chart below details the Company's product lines and identifies the
competitors with the classes of trade.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
VITAFORT BRAND CLASS OF TRADE PRINCIPAL COMPETITION MARKET NICHE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Juliette's Private Main grocery sections, There is no known direct Appeal to those consumers who
Collection natural food stores competition for boxed low are not willing to sacrifice
Chocolate Truffles and discount drug fat chocolate cream the taste of real chocolates,
stores within the U.S. candies. but demand a nutritional
profile that provides lower
fat than traditional
chocolates.
- ---------------------------------------------------------------------------------------------------------------
Fudgets Main grocery cookie Snackwell's Brownies The Company decided to
section Pepperidge Farms discontinue all but one SKU.
Brownies
Greenfield's Brownies
Frookies Brownies
- ---------------------------------------------------------------------------------------------------------------
Toast `N Jammers Low Specialty Food Health Valley Healthy Toast `N Jammers may have a
Fat Toaster Pastries sections of Tarts, and Natures' competitive edge in taste and
supermarkets and Choice Toaster Pastries all natural ingredients.
specialty stores.
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
34
<PAGE>
<TABLE>
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Jammers Fat Free Health food stores and Health Valley Cookies, The Company is repositioning
Cookies and Brownies health food sections Westbrae Cookies, Heaven the brand to strengthen its
of supermarkets Scent Cookies, Barbara's future franchise.
Cookies, Pamela's
Cookies, Frookies Cookies
& Brownies, Greenfield's
Brownies
- ---------------------------------------------------------------------------------------------------------------
7-Grainers Fat Free Health food stores and Health Valley Crackers, Vitafort plans to reposition
Crackers health food sections Hain Crackers, Barbara's the brand with unique new
within supermarkets Crackers. product entries toward the
end of 1998.
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
ENVIRONMENTAL REGULATION AND SEASONALITY
Management believes that the costs associated with compliance with
environmental regulations do not at this time impose a significant burden upon
the Company's operations. Any change in that burden, however, could adversely
impact the Company. Management does not believe that the Company's business is
seasonal to any significant extent.
EMPLOYEES
As of June 11, 1998, the Company had 11 employees of whom 3 were executive
officers, 2 were engaged in sales and marketing, and 6 were clerical and
administrative.
DESCRIPTION OF PROPERTY
The Company's principal executive office consists of 3,921 rentable square
feet located at 1800 Avenue of the Stars, Los Angeles, California, which is
leased pursuant to a three-year lease which expired August 31, 1997. The base
rent under said lease was $69,000 for the first year of the term; $72,000 for
the second year of the term; and, $75,000 for the third year of the term. The
Company is now leasing the same space on a month-to-month basis at a rate of
$6,250 per month.
LEGAL PROCEEDINGS
In December 1994, Lloyd Gaunt, who invested an aggregate of $75,000 in
certain of the Company's private placements, initiated an action in Superior
Court, Orange County, California against his stockbroker, two national brokerage
firms, several companies in which he had invested, and, certain of those
companies' officers. Included among the defendants were the Company and its
then Chief Executive Officer. The complaint seeks damages in an unspecified
amount in excess of $500,000 and punitive damages in an unspecified amount in
excess of $5,000,000. The Court has dismissed the class action claims as to the
Company and granted a motion that the claims against the brokerage firms and
associated persons must be submitted to arbitration. The plaintiff has
appealed that ruling. The Company denies any liability to the plaintiff and
intends to vigorously defend this action. The Company notes that the plaintiff
sold a portion of the securities he purchased from the Company, realizing a
profit; that the balance of the securities became salable under Rule 144; and
that, if sold, the plaintiff's losses on the Company's securities might be as
little as $15,000.
35
<PAGE>
In connection with the acquisition of assets of Auburn Farms, Inc.,
("AFI"), the Company acquired the intellectual property and certain claims of
AFI which it was asserting against AFI's co-packer, New Life Bakers ("New Life")
and against a customer of New Life, Barbara's Bakery ("Barbara's"). In May 1996,
the Company filed an action in federal court alleging Lanham Act violations,
misappropriation of trade secrets, unfair competition, conspiracy and related
claims arising out of New Life and Barbara's misappropriation of Auburn Farms'
principal products. Although no trial date has been set, the Company expects
the case to proceed to a jury trial in the first half of 1999.
On March 25, 1998, New Life and Barbara's purported to purchase from AFI's
bankruptcy estate certain claims against Barbara's and New Life for $300,000.
The purchased claims do not include any of the claims previously acquired by the
Company. The Company expects New Life and Barbara's to raise by motion the
effect of the March 25, 1998 bankruptcy purchase. The Company has been advised
by outside litigation counsel that evidence supports the Company's claim for
damages in excess of $3 million for the destruction of AFI's business and
intellectual property rights. The Company may be obligated to pay a portion of
any recovery to the Company against New Life to AFI's bankruptcy estate and/or
its creditors. The Company intends to pursue this litigation vigorously. There
is no assurance given that the Company will receive any recovery.
On October 9, 1996, a complaint was filed in Superior Court, the County of
Los Angeles, in an action entitled "Eloy Louis Ellis vs. Vitafort, Inc., a
Delaware Corporation; Mark Beychok and Does 1-50 inclusive." The complaint
alleges Breach of Oral Contract, Breach of Written Contract, and other similar
claims arising out of the consulting relationship that previously existed
between the Company and Mr. Ellis. The Complaint seeks damages in an
unspecified amount. The court has dismissed the complaint against Mark Beychok
without leave to amend. Mr. Ellis recently filed an amended complaint against
the Company. The Company is defending the action vigorously and trial is
scheduled for March 31, 1998.
The Company filed a counter-claim against Ellis charging violations of
Section 16(b) of the Securities Exchange Act of 1934 (short swing profits).
Ellis sold stock in violation of that section and, therefore, the profits,
estimated at $20,000, belong to the Company. In March 1998, the court ruled in
favor of the Company in this matter and awarded it $21,260. On June 2, 1998,
the parties resolved the issues. Under the terms of the agreement, the
settlement is treated as confidential and the public response has been agreed to
as follows: "The matter has been resolved."
MANAGEMENT OF THE COMPANY
The directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
Name Age Positions Held
----------------------- --- --------------------------------------
<S> <C> <C>
Mark Beychok 41 President, CEO and a Director
Donald Wohl 62 Director
Paul G. Cowen 64 Director
Benjamin Tabatchnick 45 Director
Jack B. Spencer 53 Chief Operating Officer, Chief Financial
Officer
John Coppolino 37 Executive Vice President
</TABLE>
36
<PAGE>
MARK BEYCHOK was elected President and a Director of the Company in
------------
September of 1993, and has been Chief Executive Officer since February 1995.
Mr. Beychok is a private investor with fifteen years experience in the food
industry as an owner and operator of various food manufacturing, marketing and
distribution companies. Mr. Beychok graduated in 1979 from the Haas Business
School at the University of California (Berkeley).
DONALD WOHL was elected a Director of the Company in November of 1993. Mr.
-----------
Wohl is a private investor and financial consultant who has been advising small
growth companies for over 30 years. Mr. Wohl is also on the board of Koo Koo
Roo, Inc., a NASDAQ listed company which operates a chain of restaurants.
PAUL G. COWEN was elected a director in January 1998. Mr. Cowen was the
-------------
founder of Paul Cowen Associates in 1984, an executive recruitment firm. Prior
to that, Mr. Cowen was in senior marketing and sales positions at Xerox and
Vivitar. Mr. Cowen has a BA from Ohio University and an MS from Indiana
University.
BENJAMIN TABATCHNICK was elected a Director of the Company in February
--------------------
1997. Since January 1990, Mr. Tabatchnick has owned and operated Tabatchnick's
Fine Foods (and predecessors), a privately held concern, which manufactures and
distributes its own trademarked line of frozen soups, and manufactures frozen
and refrigerated foods for others on a contract basis.
JACK B. SPENCER became Chief Financial Officer and Chief Operating Officer
---------------
in June 1997. Mr. Spencer has owned and operated Sunrise Consulting, Ltd., a
private concern specializing in restructuring, reorganizing, and rehabilitating
companies since 1990. Mr. Spencer has a BA in Economics from DePauw University
(Indiana) and an MBA from Washington University (Missouri).
JOHN COPPOLINO began as Director of Sales in 1994 and became Executive Vice
--------------
President during September 1997. Mr. Coppolino was a vice president for LC
Marketing from 1993 to 1994. Mr. Coppolino has over ten years experience in the
food industry, including experience as a food broker and in product manufacture.
Mr. Coppolino graduated from the Pennsylvania State University School of
Business in 1983 with a degree in Business Logistics.
EXECUTIVE COMPENSATION
On December 1, 1993, the Company entered into a three-year employment
agreement with Mark Beychok which provided for an annual base salary of
$150,000, the grant of an option to purchase 100,000 shares of common stock at
$5.00 per share (as adjusted for the reverse stock split effected in 1996), and
$1,000,000 of life insurance, the proceeds of which will be split equally
between the employee's beneficiary and the Company. In December 1995, in
recognition of Mr. Beychok's deferral of his compensation during 1995 and his
assuming additional responsibilities within the Company, Mr. Beychok's
employment agreement was amended to grant him an additional 62,500 five-year
options with an exercise price of $3.00 (as adjusted for the reverse stock split
effected in 1996), a price equal to the offering price in the Company's then on-
going private placement. In November 1995, Mr. Beychok agreed to convert his
accrued salary to stock and options on the same terms as the Company's on-going
equity bridge financing. The Company's Board of Directors approved this
transaction in December 1995. In such connection, Mr. Beychok converted $45,821
of accrued salary into 19,092 shares; 9,547 options with an exercise price of
$4.50; and 9,547 options with an exercise price of $6.00. In September 1997,
Mr. Beychok entered into a new employment agreement ("Agreement") with the
Company for three years. Under the Agreement, Mr. Beychok receives an annual
base salary of $150,000 and was granted options for 450,000 shares of stock at
an exercise price of $0.87 per share. Such options vest 75,000 each on
September 3, 1997, March 3, 1998, September 3, 1998, March 3, 1999, September 3,
1999, and March 3, 2000. In May 1997 the price of all options other than those
related to the private placement were repriced to $0.91. In September 1997 Mr.
Beychok was given a successful litigation reward of $51,535 plus 100,000 shares
of common stock at fair market value of $1.00.
37
<PAGE>
In August 1996, the Company entered into an employment agreement with John
Coppolino, which was dated January 1, 1996. Under his agreement, which is for a
one year term, with two one year renewal terms at the option of the Company, Mr.
Coppolino received an initial salary of $102,000; and, is entitled to annual
increases of 5-6% based on increases in the cost of living. Mr. Coppolino's
employment agreement provided for the grant of 225,000 options, expiring
December 31, 2000 for the purchase of common stock at $3.00 (as adjusted for the
reverse stock split effected in October 1996). Of these options: (i) 56,250
have vested (ii) 56,250 have lapsed and (iii) 56,250 will vest on each of
January 1, 1998 and January 1, 1999, subject to the Company meeting certain
performance criteria. In May 1997 the Board of Directors reduced the option
price of all unlapsed options to $0.91 and removed the vesting requirement. In
September 1997, Mr. Coppolino entered into a new employment agreement
("Agreement") with the Company for two years. Under the Agreement, Mr. Coppolino
receives an annual base salary of $120,000, and was granted options for 300,000
shares of stock at an exercise price of $0.87 per share. Such options vest
75,000 each on September 3, 1997, March 3, 1998, September 3, 1998, and March 3,
1999. In September 1997, Mr. Coppolino was given a successful litigation reward
of $25,000, forgiveness of debt of $25,000, plus 25,000 shares of common stock
at $1.00, being the fair market value at the date of the award.
In June 1997, the Company entered into a two year employment agreement with
Jack B. Spencer under which Mr. Spencer will serve the Company as its Chief
Operating Officer and Chief Financial Officer. The agreement provides for
compensation to Mr. Spencer in the amount of $125,000 per annum and the grant of
an aggregate of 300,000 five year incentive stock options with an exercise price
of $0.91 per share (such being the market price of the common stock on the date
the agreement was executed). The options vest as to 109,890 shares on September
15, 1997 and 109,890 shares on June 16, 1998, and 80,220 shares on June 16,
1999. Mr. Spencer's employment agreement provides that if Mr. Spencer's
employment by the Company is terminated without cause after September 15, 1997,
then Mr. Spencer shall be entitled to six months severance pay. Mr. Spencer's
employment agreement also provides that upon the occurrence of certain events
constituting a change in control of the Company, as defined therein, followed by
certain changes in Mr. Spencer's duties, Mr. Spencer shall be entitled to
receive a severance equal to one and one half times his then current annual
salary plus certain other benefits designed, in part, to offset any special
taxes that might be imposed upon Mr. Spencer in connection with such payments.
The following table sets forth certain information with respect to the
compensation paid by the Company to Messrs. Beychok, Spencer and Coppolino (the
"named individuals") during 1997, 1996 and 1995:
38
<PAGE>
SUMMARY COMPENSATION TABLE
--------------------------
<TABLE>
<CAPTION>
PRINCIPAL POSITION ALL OTHER ANNUAL
& NAME YEAR SALARY OTHER COMPENSATION
<S> <C> <C> <C> <C>
CEO / President
Mark Beychok 1997 $150,000 $12,500 (1) $102,467 (2)
1996 137,500 12,500 (3) 8,864 (4)
1995 40,000 110,000 (5) 14,212 (6)
COO / CFO
Jack B. Spencer June 1997 $ 67,708 $ 0 $ 68,875 (7)
1996 - - -
1995 - - -
Executive Vice President
John Coppolino 1997 $120,000 $20,750 (8) $59,000 (9)
1996 87,500 14,500 (10) 9,000 (11)
1995 - - -
</TABLE>
(1) A portion of Mr. Beychok's salary was deferred in 1996 and paid in 1997.
(2) Comprised of $9,584 car allowance, accrued vacation of $41,348, plus
$51,535 as a successful litigation reward.
(3) A portion of Mr. Beychok's salary was deferred in 1996 and paid in 1997.
(4) Comprised of $8,204 car allowance and $660 in medical insurance benefits.
(5) A portion of Mr. Beychok's salary was deferred during 1994 and applied as
an offset against a note payable in 1995. A portion of Mr. Beychok's
salary was deferred in 1995 and the majority converted to common stock and
options during 1995 and early 1996.
(6) Comprised of $10,912 car allowance and $3,300 in medical insurance
benefits.
(7) Comprised of $3,250 car allowance, plus 75,000 shares of common stock for
joining the Company at $0.875 per share.
(8) A portion of Mr. Coppolino's salary, $15,500, and car allowance, $5,250,
were deferred in 1996 and paid in 1997.
(9) Comprised of $9,000 car allowance and $50,000 as a successful litigation
reward.
(10) Mr. Coppolino deferred a portion of his salary and exercised stock options
in 1996.
(11) Comprised of $9,000 car allowance.
STOCK OPTION PLAN
The Company adopted its 1989 Stock Option Plan (the "1989 Plan") pursuant
to which 12,500 shares of common stock (as adjusted for the reverse stock split
effected in 1996) were reserved for issuance upon the exercise of options.
Options granted under the 1989 Plan may, at the discretion of the Board, be
incentive stock options ("ISO's") within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended ("Code"), or non-incentive stock
options. In June 1991, the Board of Directors approved an increase in the
number of options available for grant under the 1989 Plan to 50,000 (as adjusted
for the reverse stock split effected in 1996). No options are outstanding under
this plan.
In 1995, the Company adopted the 1995 Stock Option Plan (the "1995 Plan")
pursuant to which 2,000,000 shares of Common Stock (as adjusted for the reverse
stock split effected in 1996) were reserved for issuance upon the exercise of
options. The 1995 Plan is similar to the 1989 Plan in many respects and in the
discussion below, each is referred to as a "Plan" and they are collectively
referred to as the "Plans".
39
<PAGE>
Under the terms of the Plans, all directors, officers and key employees of,
and consultants to, the Company and all its subsidiaries are eligible for option
grants. The Board determines, at its discretion, which persons will receive
option grants, the number of shares subject to each option, the exercise price,
which may not be less than the par value of the shares subject to the option,
except that in the case of ISO's, the exercise price must be at least one
hundred percent (100%) of the fair market value of the optioned shares on the
date of grant, or one hundred and ten percent (110%) of such fair market value
if the optionee is the owner of more than ten percent (10%) of the total
combined voting power of all classes of voting stock of the Company (a "10%
Holder"), and the term (which may not be more than ten (10) years from the date
of grant, or five (5) years in the case of an ISO granted to a 10% holder)
thereof. The Plans permit options granted thereunder to be exercised by the
tender of shares of common stock having a fair market value equal to the
exercise price of such option.
Options granted under the Plans may, at the discretion of the Board, be
exercisable upon the tender of cash equal in amount to the aggregate par value
of the shares covered by such options, together with a one-year note bearing
interest at the "applicable federal rate" (as defined in the Code) and providing
for a required prepayment upon any disposition of the acquired shares.
Presently, the Board does not have a stock option committee.
During 1995 Mr. Beychok was granted an aggregate of 687,500 options under
the 1995 Plan with an exercise price of $3.00 (as adjusted for the reverse stock
split effected in October 1996). The exercise price of these options was
reduced to $0.91 in May 1997 (the current price of these options).
The following chart sets forth the options granted to directors and
officers in 1997:
<TABLE>
<CAPTION>
Percent of
Number of total
securities options/SARs Exercise Potential realized value at
underlying granted to of base assumed annual rate of
options/ SARs employees in price Expiration appreciation for option term
Name granted fiscal year ($/Share) Date 5% 10%
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Mark Beychok, CEO 100,000 2.8% $0.875 12/31/02 111,675 140,920
- ----------------------------------------------------------------------------------------------------------------------------
Mark Beychok, CEO 100,000 2.8% $ 0.91 06/16/02 116,142 146,556
- ----------------------------------------------------------------------------------------------------------------------------
Mark Beychok, CEO 450,000 12.8% $ 0.87 09/19/02 499,664 630,515
- ----------------------------------------------------------------------------------------------------------------------------
Jack B. Spencer, COO/CFO 300,000 8.5% $ 0.91 06/13/02 348,425 439,669
- ----------------------------------------------------------------------------------------------------------------------------
John Coppolino 100,000 2.8% $ 0.91 06/16/02 116,142 146,556
- ----------------------------------------------------------------------------------------------------------------------------
John Coppolino 300,000 8.5% $ 0.87 09/19/02 333,109 420,343
- ----------------------------------------------------------------------------------------------------------------------------
Donald Wohl 100,000 2.8% $0.875 12/31/02 111,675 140,920
- ----------------------------------------------------------------------------------------------------------------------------
Benjamin Tabatchnick 50,000 1.4% $0.875 02/17/02 55,837 70,460
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
The following chart sets forth certain information with respect to
options/warrants outstanding at December 31, 1997 to the named individuals:
<TABLE>
<CAPTION>
Value of Unexercised
Number of Securities In-the-Money
Underlying Unexercised Options/SAR's at
Options/SARs at FY-End FY-End
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise Realized Unexercisable Unexercisable
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Mark Beychok -0- $-0- 1,088,031/300,000 $ -0- / $ -0-
- -------------------------------------------------------------------------------------------------------------------
Jack B. Spencer -0- $-0- 109,890/190,110 $ -0- / $ -0-
- -------------------------------------------------------------------------------------------------------------------
John Coppolino -0- $-0- 421,500/150,000 $ -0- / $ -0-
- -------------------------------------------------------------------------------------------------------------------
Donald Wohl -0- $-0- 250,000/0 $ -0- / $ -0-
- -------------------------------------------------------------------------------------------------------------------
Benjamin Tabatchnick -0- $-0- 150,000/0 $ -0- / $ -0-
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
40
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth the ownership of the common stock by each
director and by entities or persons known to the Company to own beneficially in
excess of 5% of such stock and by all officers and directors as a group, as of
March 20, 1998. Except as otherwise indicated, all stockholders have sole
voting and investment power with respect to the shares listed as beneficially
owned by them, subject to the rights of spouses under applicable community
property laws.
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF SHARES PERCENTAGE OF
OF BENEFICIAL OWNER OF COMMON STOCK BENEFICIAL
IDENTITY OF GROUP Beneficially Owned Ownership
- --------------------------------------------- ------------------- --------------
<S> <C> <C>
Mark Beychok (1) 1,088,031 (2) 13.1 %
Donald Wohl (1) 250,000 (3) 3.0 %
Paul G. Cowen (1) 50,000 (4) .6 %
Benjamin Tabatchnick (1) 150,000 (4) 1.8 %
John Coppolino (1) 571,500 (5) 6.9 %
Jack Spencer (1) 109,890 (6) 1.3 %
ALL DIRECTORS AND OFFICERS AS A GROUP.
(6 persons) (2)(3)(4)(5) and (6) 2,219,421 26.6 %
</TABLE>
(1) The address of these persons is 1800 Avenue of the Stars, Suite 480, Los
Angeles, California 90067.
(2) Includes (i) 62,500 shares underlying a currently exercisable option with
an exercise price of $0.91 per share, which expires on December 16, 2000;
(ii) 15,000 shares underlying a currently exercisable option with an
exercise price of $0.91 per share which expires on September 29, 1998;
(iii) 100,000 shares underlying a currently exercisable option with an
exercise price of $0.91 per share which expires on November 15, 1998; (iv)
150,000 shares underlying the currently exercisable portion of a stock
option, expiring December 16, 2000, which has an exercise price of $0.91
per share; (v) 3,703 shares underlying a currently exercisable option with
an exercise price of $4.50 per share which expires January 7, 1998; (vi)
3,703 shares underlying a currently exercisable option with an exercise
price of $6.00 per share which expires July 7, 1998; (vii) 403,125 shares
underlying the currently exercisable portion of a stock option, expiring
December 16, 2000, which has an exercise price of $0.91 per share; (viii)
100,000 shares underlying a currently exercisable option with an exercise
price of $0.91 which expires on June 16, 2002; (ix) 100,000 shares
underlying a currently exercisable option with an exercise price of $.875
which expires on December 31, 2002; and (x) 150,000 shares underlying a
currently exercisable option with an exercise price of $0.87 which expires
September 1, 2002 and does not include 300,000 shares underlying options
which are not currently exercisable with an exercise price of $0.87
expiring September 1, 2002.
(3) Includes (i) 150,000 shares underlying the currently exercisable portion of
a stock option, expiring December 16, 2000, which has an exercise price of
$0.91 per share; and (ii) 100,000 shares underlying a presently exercisable
option with an exercise price of $0.875 which expires on December 31, 2002.
Does not include any shares owned by ATCOLP INVESTMENT PARTNERS, a
California limited partnership in which Mr. Wohl is the general partner.
(4) Each of Messrs. Tabatchnick and Cowen holds a currently exercisable option
for the purchase of 50,000 shares at $0.875 granted in 1998. Mr.
Tabatchnick holds a currently exercisable option for an additional 50,000
shares at $0.875 granted in 1997, and has entered into a consulting
agreement which
41
<PAGE>
provides for the issuance of 50,000 shares, subject to forfeiture if
certain performance standards relating to sales into certain markets are
not met.
(5) Includes (i) 1,375 shares underlying a currently exercisable option with an
exercise price of $4.50, which expired January 7, 1998; (ii) 1,375 shares
underlying a currently exercisable option with an exercise price of $6.00,
which expires July 7, 1998; (iii) 168,750 shares underlying a currently
exercisable option with an exercise price of $0.91 per share, which expires
on December 16, 2000; (iv) 100,000 shares underlying a currently
exercisable option with an exercise price of $0.91 which expires on June
16, 2002; (v) 150,000 shares underlying a currently exercisable option
with an exercise price of $0.87 which expires on September 1, 2002; and
does not include (vi) 150,000 shares with an exercise price of $0.87 which
are not currently exercisable expiring September 1, 2002.
(6) Includes 109,890 shares underlying a currently exercisable option with an
exercise price of $0.91, expiring June 13, 2002; and does not include
190,890 shares underlying options which are not currently exercisable with
an exercise price of $0.91 expiring June 13, 2002.
The following table sets forth the ownership of the Series B Preferred
Stock and 1997 Series A Preferred Stock by each director and by each entity or
person known to the Company to own beneficially in excess of 5% of such class
of stock and by all officers and directors as a group. To the Company's
knowledge, all stockholders have sole voting and investment power with respect
to the shares listed as owned by them, subject to applicable community property
laws.
<TABLE>
<CAPTION>
Title of Class Name and Address of Number of Percentage
Beneficial Owner Shares Owned Of Class
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Thomas Von Ledersteger
Series B Preferred Stock 23 Chemin des Meandres 500 50%
CH-1287 Laconnex/GE, Switzerland
- ---------------------------------------------------------------------------------------------------------------
Pictet et CIE
Series B. Preferred Stock 29 Boulevard Georges Favon 500 50%
CH-1211 Geneva, Switzerland
- ---------------------------------------------------------------------------------------------------------------
All officers and directors as a group
Series B Preferred Stock (6 persons) 0 0%
- ---------------------------------------------------------------------------------------------------------------
1997 Series A Sovereign Partners, L.P. *
Preferred Stock 90 Grove Street, Suite 01 1,201 70.6%
Ridgefield, CT 06877
- ---------------------------------------------------------------------------------------------------------------
1997 Series A Dominion Capital Fund, Ltd. *
Preferred Stock Bahamas Financial Center, 3rd Floor 500 29.4%
Shirley & Charlotte Streets
Nassau, Bahamas
- ---------------------------------------------------------------------------------------------------------------
1997 Series A All officers and directors as a group
Preferred Stock (6 persons) 0 0%
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
* The equity interests in each of these funds are widely held by a large
group of accredited investors.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company has employment agreements with Mark Beychok, Jack Spencer and
John Coppolino, and had employment agreements, consulting agreements and
settlement agreements with certain of its former officers. See "Management -
Executive Compensation."
42
<PAGE>
In April, 1997, the Company agreed in principle with ATCOLP INVESTMENT
PARTNERS, a California Limited Partnership (the "Lender), in which Donald Wohl,
a Director of the Company, is the general partner, for a loan in the amount of
$300,000 (the "Loan"), to fund the payment of legal fees in connection with the
Company's arbitration against The Keebler Company. See Note 16: Litigation
Recovery, Net of Costs. The loan was evidenced by a note which bears interest
at the lesser of 15% per annum or the highest rate allowed by law with recourse
solely to the net proceeds of the arbitration, if any. If the Company did not
realize any net proceeds from the arbitration, the Loan would be canceled and
the Lender would receive a warrant for the purchase of 400,000 shares of the
Company's Common Stock at $.01 per share. If the Loan was repaid through the
application of the net proceeds of the arbitration, the Lender would receive
warrants for the purchase of 200,000 shares of Common Stock at $.01 per share
and a percentage of net proceeds of the arbitration equal to 15% of the first
$1,000,000 of net proceeds, but not less than $100,000; 20% of the net proceeds
greater than $1,000,000 and less than $3,000,000; and, 25% of net proceeds above
$3,000,000. The Loan was approved by the disinterested members of the Company's
Board of Directors, and was on terms no less favorable to the Company than were
available from non-affiliated lenders. A second proposal, from another source,
contained terms which would have required the Company to pay $2,050,000 in fees
based on the actual award, repay the $300,000 advance, and be granted a warrant
for 1,000,000 shares of the Company's common stock at an exercise price of
$1.00. The loan amount of $300,000 was repaid upon settlement of the litigation
in June 1997 and receipt of funds in July 1997, plus $1,236,883 in conformity
with the agreed upon formula, plus a warrant for 200,000 shares of the Company's
common stock at a $0.01 per share. See Note 16 to the Consolidated Financial
Statements for the recording of the entire transaction.
The Company entered into a one year consulting agreement with Benjamin
Tabatchnick, a Director of the Company, on April 1, 1997. Mr. Tabatchnick, in
exchange for 50,000 shares of the Company's common stock plus 2% of the new
sales endeavors in the school and food service business areas, agreed to assist
the Company in developing programs, formulations, marketing and sales in the
above mentioned business areas.
The Company granted options in 1997 for 50,000 shares to Paul S. Hermis who
was then a Director of the Company. Mr. Hermis resigned as a Director on
February 21, 1998.
DESCRIPTION OF SECURITIES
GENERAL
The authorized capital stock of the Company currently consists of (i)
30,000,000 shares of Common Stock, par value $.0001 per share, of which
7,500,350 were issued and outstanding on June 23, 1997, and (ii) 500,000 shares
of Preferred Stock, par value $.01 per share, of which on June 2, 1997 (a) 1,000
shares of Series B 10% Cumulative Convertible Preferred Stock were issued and
outstanding; (b) 50 shares of Series C Convertible Preferred Stock were issued
and outstanding; and (c) 1,701 shares of 1997 Series A Preferred Stock were
issued and outstanding.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share on all matters
to be voted on by stockholders generally, including the election of directors.
Holders of Common Stock do not have cumulative voting rights, which means that
the holders of more than 50% of the shares voting for the election of directors
can elect all of the directors if they chose to do so, and in such event, the
holders of the remaining shares will not be able to elect any persons to the
Board of Directors. The holders of Common Stock have no preemptive or other
subscription or conversion rights with respect to any stock issued by the
Company, the Common Stock is not subject to redemption, and the holders thereof
are not liable for further calls or assessments. Holders of Common Stock are
entitled to receive such dividends as may be
43
<PAGE>
declared by the Board of Directors out of funds legally available therefore and
to share pro-rata in any distributions to the holders of Common Stock.
PREFERRED STOCK
The Preferred Stock is issuable with such rights, preferences, privileges
and such number of shares constituting each series to be fixed by the Board of
Directors without further action by the holders of Common Stock or Preferred
Stock. The Board of Directors could, without stockholder approval, issue
Preferred Stock with voting and conversion rights, which could dilute the voting
power of the holders of the Common Stock. The issuance of shares of Preferred
Stock by the Board of Directors could be utilized, under certain circumstances,
as a method of preventing a takeover of the Company. As of the date of this
Memorandum, the Board of Directors as not authorized any series of Preferred
Stock except as set forth below. Except for the shares of Preferred Stock to be
issued in this offering, there are no agreements or understanding for the
issuance of any shares of Preferred Stock.
SERIES B 10% CUMULATIVE CONVERTIBLE PREFERRED STOCK ("SERIES B PREFERRED")
The Company is authorized to issue 110,000 shares of Series B Preferred,
1,000 of which are issued and outstanding. The Holders of each share of Series
B Preferred are entitled to receive annual cash dividends of $5.00 per share on
the first day of December in each year and to receive a preference on
liquidation of the Company of $50.00 per share plus accrued dividends. The
aggregate dividend preference of the 1,000 shares of Series B Preferred is
$5,000 per annum and the liquidation preference thereof is $50,000 plus accrued
dividends. Each share of the Series B Preferred is convertible into Common
Stock on a 1.667 for one basis (an effective conversion price of $30.00 based on
the $50.00 sale price of such shares). The Company has the right to redeem the
Series B Preferred at the price of $50.00 per share plus any accrued dividends
payable in cash and, in the event the "market price" of the Common Stock, as
defined in the Certificate of Designation of the Series B Preferred, exceeds
$60.00. In the event that the Company fails to declare the annual dividends on
the Series B Preferred, then the holders of the Series B Preferred shall have
the right, voting as a class, to elect two members to the Company's board of
directors. While the holders of the Series B may presently have such right,
they have not sought to exercise the same. Other than in such event, except
where required by Delaware law, the holders of Series B Preferred do not have
any voting rights. The Company does not intend to issue any additional shares
of Series B Preferred Stock, has had discussions with the holders with respect
to their conversion of the same, and, if the remaining shares of Series B
Preferred Stock were converted, the Company would eliminate the Series B
Preferred Stock.
SERIES C CONVERTIBLE PREFERRED STOCK ("SERIES C PREFERRED")
The Company is authorized to issue 450 shares of Series C Preferred of
which 50 shares are issued and outstanding. The holders of Series C Preferred
do not have any rights to dividends, but are entitled to a preference of
$1,000.00 per share upon the liquidation of the Company before any payments are
made to holders of junior stock. Each share of Series C Preferred is
convertible into one hundred shares of Common Stock subject to adjustment in
accordance with the anti-dilution provisions of the Series C Preferred. At the
time of the issue of the Series C Preferred, the holders thereof were also
entitled to receive a warrant for the purchase of 100 shares of Common Stock on
conversion. However, the warrant to be issued to holders of Series C Preferred
has expired. The outstanding shares of Series C Preferred were held by an
Italian bank which ceased operations. The Company does not know the identity of
the holder of the Series C Preferred Stock. If the remaining shares of Series C
Preferred Stock were converted, the Company would eliminate the Series C
Preferred Stock.
1997 SERIES A CONVERTIBLE PREFERRED STOCK ("1997 SERIES A PREFERRED")
As of December 31, 1997, the Company was authorized to issue 750 shares of
1997 Series A Preferred, all of which were issued and outstanding. The holders
1997 Series A Preferred are entitled to annual dividends at the rate of $60.00
per annum payable on January 2 of each year to holders of record on December 31
in cash or in Common Stock at the then market price (as defined in the
designation for the
44
<PAGE>
1997 Series A Preferred). Each share of the 1997 Series A Preferred Stock has a
liquidation preference equal to $1,000 plus accrued dividends and is convertible
into common stock in an amount equal to the greater of (i) 800 shares or (ii)
$1,000 divided by 70% of the current market price (as defined in the designation
for the 1997 Series A Preferred Stock) at the time of conversion. For example,
if the market price of the Common Stock were $1.125 on the date of conversion,
each share of 1997 Series A Preferred Stock would be convertible into 1,270
shares of Common Stock. The Company has the right to convert the outstanding
shares of 1997 Series A Preferred Stock into Common Stock at any time that the
average market price of the Common Stock exceeds 200% of the average market
price of the Series A Preferred Stock on its issue date for a five day period.
Upon conversion by the Company, the holders of the 1997 Series A Preferred Stock
were entitled to receive two year options equal in number to 15% of the number
of shares of Common Stock issued to them upon such conversion with an exercise
price equal to 130% of the market price at the time of the conversion.
In March 1998, the Company amended the 1997 Series A Preferred to issue
1,701 shares of 1997 Series A Preferred, all of which are issued and
outstanding. The holders of 1997 Series A Preferred are entitled to annual
dividends at the rate of $60.00 per share per annum payable on January 2 of each
year to holders of record on December 31 in cash or in Common Stock at the then
market price (as defined in the designation for the 1997 Series A Preferred).
Each share of the 1997 Series A Preferred has a liquidation preference equal to
$1,000 plus accrued dividends and is convertible into Common Stock on the
following basis: (i) in the event that the market price of the Common Stock is
$.6875 or less, then at 78.5% of the market price of the Common Stock; and (ii)
if the market price of the Common Stock at the time of the conversion is in
excess of $.6875, then at the market price of the Common Stock at the time of
conversion with the holder also receiving warrants ("Conversion Warrants") for
each share converted so that the holder's potential profit on the sale of the
Common Stock received on the conversion plus the Common Stock receivable on
exercise of the Conversion Warrants is 27.5% of the liquidation preference of
the 1997 Series A Preferred at the time of conversion. For example: (i) if
the market price of the Common Stock were $1.00 at the time of conversion and
there were no accrued unpaid dividends at the date of conversion, then each
share of 1997 Series A Preferred would convert into 1,000 shares of Common Stock
and 880 Conversion Warrants; and (ii) if the market price of the Common Stock
were $2.00 at the time of conversion and there were no accrued unpaid dividends
at the date of conversion, then each share of 1997 Series A Preferred would
convert into 500 shares of Common Stock and 210 Conversion Warrants. The
holders of the 1997 Series A Preferred Stock have no voting rights except as is
required under Delaware law. The resale of the Preferred Stock have no voting
rights except as is required under Delaware law. The resale of the Common Stock
issuable upon conversion of the 1997 Series A Preferred Stock and the exercise
of the Conversion Warrants is included in the Registration Statement of which
this Prospectus forms a part.
REDEEMABLE WARRANTS
The Company issued redeemable Common Stock Purchase Warrants in its initial
public offering which, as extended, will expire on October 31, 1998. There are
1,680,000 redeemable Common Stock Purchase Warrants outstanding which each
entitle the holder thereof to purchase one twentieth of a share of Common Stock
at an exercise price of $2.375. No Redeemable Common Stock Purchase Warrants
have been exercised and the Company does not anticipate any such exercises prior
to the expiration of the Redeemable Common Stock Purchase Warrants unless the
terms thereof are changed by the Company.
TRANSFER AGENT AND WARRANT AGENT
Continental Stock Transfer & Trust Company, Two Broadway, New York, NY
10004 is Transfer agent for the Common Stock and Warrant agent and Transfer
agent for the Redeemable Common Stock Purchase Warrants.
LEGAL OPINION
45
<PAGE>
The validity of the Common Stock offered hereby is being passed upon for
the Company by Frank J. Hariton, Esq., New York, New York. Frank J. Hariton,
Esq. owns: (i) 7,977 shares of Common Stock; (ii) 800 of the Company's
Redeemable Common Stock Purchase Warrants; and (iii) 3,333 options with an
exercise price of $6.00.
EXPERTS
The consolidated financial statements of Vitafort International Corporation
for the years ended December 31, 1997 and 1996, included in this Registration
Statement on Form SB-2/A3 have been audited by BDO Seidman, LLP, independent
certified public accountants, to the extent and for the periods set forth in
their report, which contains an explanatory paragraph regarding the Company's
ability to continue as a going concern, and are included herein in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting.
CHANGE OF ACCOUNTANTS
On February 5, 1997, the Registrant dismissed the firm of KPMG Peat
Marwick, LLP ("KPMG") as the Registrant's independent auditor, effective
immediately. The Registrant then selected BDO Seidman, LLP ("BDO") to act as
the Company's independent auditor for the fiscal year ending December 31, 1996.
The foregoing actions of the Registrant were ratified by its Board of Directors.
The report of KPMG on the Company's financial statements for the year ended
December 31, 1995, did not contain an adverse opinion or a disclaimer of
opinion, nor was it qualified or modified as to uncertainty, audit scope or
accounting principles.
During the two years ended December 31, 1995, and during the subsequent
period from January 1, 1996 through February 5, 1997, there were no
"Disagreements" (as such term is defined under the Federal Securities laws) with
KPMG on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure, which Disagreements, if not resolved
to the satisfaction of KPMG, would have caused that firm to make a reference to
the subject matter of the Disagreements in connection with their report.
During the two years ended December 31, 1995, and during the period from
January 1, 1996 through February 5, 1997, the Registrant was not (i) advised by
KPMG that the Registrant did not have internal controls necessary to develop
reliable financial statements; (ii) advised by KPMG that it was no longer able
to rely on management's representations or that it was unwilling to be
associated with financial statements prepared by management; (iii) advised by
KPMG of a need to expand the scope of its audit; or (iv) advised by KPMG that
information had come to its attention that materially impacted the fairness or
the reliability of any audit report or financial statement issued or to be
issued, or caused them to be unwilling to rely on management's representations
or be associated with the Registrant's financial statements (collectively
"Reportable Events").
During the year ended December 31, 1995, and the period from January 1,
1996 to January 31, 1997, neither the Registrant, nor anyone on its behalf,
consulted BDO on (i) the application of accounting principals to a specified
transaction, either completed or proposed; the type of audit opinion that might
be rendered on the Registrant's financial statements; or (iii) any matter that
was either the subject of a Disagreement or a Reportable Event.
46
<PAGE>
STATEMENT OF INDEMNIFICATION
The Company has adopted the provisions of Section 102(b)(7) of the Delaware
General Corporation Act (the "Delaware Act") which eliminates or limits the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty under certain circumstances. Furthermore,
under Section 145 of the Delaware Act, the Company may indemnify each of its
directors and officers against his expenses (including reasonable costs,
disbursements and counsel fees) in connection with any proceeding involving such
person by reason of his having been an officer or director to the extent he
acted in good faith and in a manner reasonably believed to be in, or not opposed
to the best interest of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
determination of whether indemnification is proper under the circumstances,
unless made by a court, shall be determined by the Board of Directors. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is therefore unenforceable.
47
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Independent Certified Public Accountants F-2
Consolidated Balance Sheets - December 31, 1997 and 1996 F-3
Consolidated Statements of Operations -
Years Ended December 31, 1997 and 1996 F-5
Consolidated Statements of Stockholders' Equity (Deficit) -
Years Ended December 31, 1997 and 1996 F-6
Consolidated Statements of Cash Flows -
Years Ended December 31, 1997 and 1996 F-7
Summary of Accounting Policies F-9
Notes to Consolidated Financial Statements F-13
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
VITAFORT INTERNATIONAL CORPORATION
AND SUBSIDIARIES
Los Angeles, California
We have audited the accompanying consolidated balance sheets of Vitafort
International Corporation and Subsidiaries as of December 31, 1997 and 1996, and
the related consolidated statements of operations, shareholders' equity
(deficit) and cash flows for each of the two years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the 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 financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Vitafort
International Corporation and Subsidiaries at December 31, 1997 and 1996, and
the consolidated results of their operations and cash flows for each of the two
years then ended, in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 2 to the
financial statements, the Company has suffered recurring losses from operations,
including a loss from operations of $4,151,305 for the year ended December 31,
1997. The Company has also previously had working capital shortages. These and
other factors raise substantial doubt about its ability to continue as a going
concern. Management's plans in regard to these matters are also described in
Note 2. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
Los Angeles, California
March 30, 1998 BDO SEIDMAN, LLP
F-2
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1997 1996
------------ ------------
<S> <C> <C>
ASSETS (Note 6)
Current assets:
Cash and cash equivalents $2,199,036 $ 188,867
Accounts receivable - trade, net of allowance for doubtful
accounts of $25,743 and $79,994 as of December 31, 1997
and 1996, respectively 412,289 230,789
Notes receivable 10,000 56,000
Other receivables - 4,464
Inventory (Note 3) 247,611 361,196
Prepaid expenses and other current assets (Note 4) 269,268 271,731
---------- ----------
Total current assets 3,138,204 1,113,047
---------- ----------
Equipment (Note 7):
Manufacturing equipment 290,912 290,912
Furniture and office equipment 105,160 105,160
Computer equipment 193,571 173,294
---------- ----------
589,643 569,366
Less accumulated depreciation 347,493 231,592
---------- ----------
Net equipment 242,150 337,774
---------- ----------
Other Assets:
Advances to Global International Sourcing (Note 15) 193,818 -
Intangible assets, net of accumulated amortization of
$73,163 and $95,561 as of December 31, 1997 and 1996,
respectively 338,091 385,693
---------- ----------
Total Other Assets 531,909 385,693
---------- ----------
$3,912,263 $1,836,514
========== ==========
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-3
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT) DECEMBER 31, DECEMBER 31,
1997 1996
------------ ------------
<S> <C> <C>
Current liabilities:
Note payable - bank (Note 6) $ 60,757 $ 440,022
Notes payable - other (Note 6) 283,898 -
Accounts payable - trade 909,315 1,510,982
Accrued expenses (Note 5) 342,437 341,480
Current maturities of long-term debt (Note 7) 37,859 37,859
------------ ------------
Total current liabilities 1,634,266 2,330,343
Commitments and contingencies (Notes 11 and 13)
Stockholders' equity (deficit) (Notes 9, 10 and 15):
Series A, 6% Cumulative Convertible Preferred Stock,
$0.01 par value; 750 shares authorized; 750 shares
issued and outstanding at December 31, 1997 and none
at December 31, 1996; aggregate liquidation preference
of $750,000 at December 31, 1997 8 -
Series B, 10% Cumulative Convertible Preferred Stock,
$.01 par value; authorized 110,000 shares; issued
and outstanding 1,000; aggregate liquidation
preference of $50,000 10 10
Series C, Convertible Preferred Stock, $.01 par value;
authorized 450 shares; issued and outstanding 50 shares;
aggregate liquidation preference of $50,000 1 1
Common stock, $.0001 par value, authorized 30,000,000 shares;
issued and outstanding 6,683,853 and 4,908,664 8,863 8,686
Additional paid-in capital 23,115,727 20,547,953
Accumulated deficit (20,846,612) (21,050,479)
------------ ------------
Total stockholders' equity (deficit) 2,277,997 (493,829)
------------ ------------
$ 3,912,263 $ 1,836,514
============ ============
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-4
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
----------- -----------
<S> <C> <C>
Net revenues $ 1,995,317 $ 5,285,149
Cost of sales 1,896,410 6,870,120
----------- -----------
Gross profit (loss) 98,907 (1,584,971)
----------- -----------
Operating expenses:
Research and development 337,806 737,044
Sales and marketing 1,239,460 3,029,480
General and administrative 2,672,946 2,721,321
----------- -----------
Total operating expenses 4,250,212 6,487,845
----------- -----------
Loss from operations (4,151,305) (8,072,816)
Interest income 78,070 49,319
Interest expense (214,690) (50,509)
Other income (expense) 15,210 (45,650)
Litigation recovery, net of costs (Note 16) 4,748,946 -
----------- -----------
Income (loss) before income taxes 476,231 (8,119,656)
State income taxes (Note 8) 3,200 3,159
----------- -----------
Net Income (loss) 473,031 (8,122,815)
Deemed dividends to preferred shareholders 269,164 -
----------- -----------
Net income (loss) allocable to common shareholders $ 203,867 $(8,122,815)
=========== ===========
Basic net income (loss) per common share $ .03 $ (1.58)
=========== ===========
Diluted net income (loss) per share $ .03 $ (1.58)
=========== ===========
Basic weighted average shares of common stock 5,831,404 5,133,665
=========== ===========
Diluted weighted average shares of common stock 6,343,397 5,133,665
=========== ===========
</TABLE>
See accompanying summary of accounting policies and notes to consolidated
financial statements.
F-5
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
YEARS ENDED DECEMBER 31, 1997 AND 1996
<TABLE>
<CAPTION>
Series A Series B
Cumulative Cumulative Series C
Convertible Convertible Convertible
Preferred Stock Preferred Stock Preferred Stock
--------------- --------------- --------------- Subscribed
Shares Amount Shares Amount Shares Amount Stock
------ ------ ------ ------ ------ ------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1996 - $0 1,500 $15 50 $1 $ 3,418,196
Common stock issued from subscriptions - - - - - (3,418,196)
Common stock issued in private placement,
net of commissions and offering costs - - - - - -
Conversion of debt to equity - - - - - -
Conversion of preferred stock to
common stock - - (500) (5) - -
Common stock--consulting - - - - - -
Exercise of stock options - - - - - -
Net loss - - - - - -
------ ------ ------ ------ ------ ------ -----------
Balance, December 31, 1996 - $0 1,000 $10 50 $1 -
Common stock issued in private placement,
net of commissions
Common stock issued as settlement of
contract dispute
Series A Preferred issued in connection
with private placement, net of
commissions and expenses 750 8
Payment of accounts payable obligations
with stock
Exercise of warrants
Exercise of stock options
Preferred stock dividends
Net income
------ ------ ------ ------ ------ ------ -----------
Balance, December 31, 1997 750 $8 1,000 $10 50 $1 -
====== ====== ====== ====== ====== ====== ===========
</TABLE>
<TABLE>
<CAPTION>
Additional
Common Stock Paid-In Accumulated
Shares Amount Capital Deficit Total
--------- ------ ----------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Balance, January 1, 1996 1,911,185 $3,823 $11,382,120 $(12,927,664) $ 1,876,491
Common stock issued from subscriptions 1,129,474 1,992 3,116,204 - (300,000)
Common stock issued in private placement,
net of commissions and offering costs 1,020,000 2,040 3,497,801 - 3,499,841
Conversion of debt to equity 80,000 8 399,992 - 400,000
Conversion of preferred stock to
common stock 2,500 5 59,694 - 59,694
Common stock--consulting 579,957 447 1,377,197 - 1,377,644
Exercise of stock options 185,548 371 714,945 - 715,316
Net loss - - - (8,122,815) (8,122,815)
--------- ------ ----------- ------------ -----------
Balance, December 31, 1996 4,908,664 $8,686 $20,547,953 $(21,050,479) $ (493,829)
Common stock issued in private placement,
net of commissions 500,000 50 449,950 450,000
Common stock issued as settlement of
contract dispute 70,000 7 78,743 78,750
Series A Preferred issued in connection
with private placement, net of
commissions and expenses 672,992 673,000
Payment of accounts payable obligations
with stock 662,589 66 638,297 638,363
Exercise of warrants 200,000 20 139,980 140,000
Exercise of stock options 342,600 34 318,648 318,682
Preferred stock dividends 269,164 (269,164) -
Net income 473,031 473,031
--------- ------ ----------- ------------ -----------
Balance, December 31, 1997 6,683,853 $8,863 $23,115,727 $(20,846,612) $ 2,277,997
========= ====== =========== ============ ===========
</TABLE>
See accompanying summary of accounting policies and notes to financial
statements.
F-6
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
DECEMBER 31,
Increase (Decrease) in Cash and Cash Equivalents 1997 1996
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net Income (Loss) $ 473,031 $(8,122,815)
Adjustments to reconcile net loss to net cash and cash equivalents
provided by (used in) operating activities:
Depreciation and amortization 163,503 119,459
Allowance for doubtful accounts (54,251) -
Warrants issued for services (Note 16) 138,000 -
Operating expenses paid with common stock - 1,377,644
Change in operating assets and liabilities:
(Increase) decrease in:
Accounts receivable - trade, net (127,249) (191,366)
Inventory 113,585 319,680
Other - (55,760)
Prepaid and other assets 2,463 93,386
Notes receivable 46,000 (36,222)
Other receivables 4,464 143,510
Increase (decrease) in:
Accounts payable and accrued expenses 1,031,347 979,022
Other current liabilities - (150,000)
----------- -----------
Cash and cash equivalents provided by (used in) operating activities 1,790,893 (5,523,462)
----------- -----------
Cash flows from investing activities:
Purchase of equipment (20,277) (172,896)
Advances to Global International (193,818) -
----------- -----------
Cash and cash equivalents used in investing activities (214,095) (172,896)
----------- -----------
Cash flows from financing activities:
Proceeds from line of credit 838,426 599,715
Repayment of line of credit (1,217,691) ( 75,000)
Proceeds from notes payable 307,871 -
Repayment of notes payable (625,695) (171,053)
Proceeds from issuance of stock 1,123,000 3,499,841
Exercise of stock options and warrants 7,460 715,316
----------- -----------
Cash and cash equivalents provided by financing activities 433,371 4,568,819
----------- -----------
Increase (decrease) in cash and cash equivalents 2,010,169 (1,127,539)
Cash and cash equivalents at beginning of year 188,867 1,316,406
----------- -----------
Cash and cash equivalents at end of year $ 2,199,036 $ 188,867
=========== ===========
</TABLE>
F-7
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
---- ----
<S> <C> <C>
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest $ 215,126 $ 50,509
Income taxes 3,200 2,854
Supplemental disclosure of non-cash operating, investing and
financing activities:
Issuance of common stock for:
Conversion of accounts payable to equity $1,030,335 $ -
Conversion of accrued interest - 59,694
Conversion of preferred stock to common stock - 14,999
Payment of consulting contract - (300,000)
Conversion of accounts payable to notes payable 601,723 -
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
See accompanying summary of accounting policies and notes to financial
statements.
F-8
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
SUMMARY OF ACCOUNTING POLICIES
BASIS OF CONSOLIDATION
The accompanying consolidated financial statements of Vitafort
International Corporation (the "Company") include the accounts of the Company
and its subsidiaries: Nutrifish Corporation (90.5% owned as of December 31,
1997 and 1996); Hollywood Partners, Inc. (formerly Vitafort Distributors, Inc.);
and Crystal Clear Farms. All subsidiaries were inactive in 1997. All material
intercompany accounts and transactions have been eliminated.
USE OF ESTIMATES
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 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.
RECLASSIFICATION AND PRESENTATION
Certain 1996 amounts have been reclassified to conform to the 1997
presentation.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents are investments with original maturities of
three months or less and short-term, highly liquid investments that are both
readily convertible to known amounts of cash and are so near their maturity that
they present insignificant risk of changes in value because of changes in
interest rates.
INVENTORY
Inventory consists of merchandise available for sale, packaging
supplies and raw materials, and are stated at the lower of cost (first-in,
first-out) or market.
EQUIPMENT
Equipment is comprised of manufacturing equipment, furniture, office
equipment and computer equipment and is recorded at cost. Depreciation is
computed on a straight-line basis over the estimated useful life not in excess
of five years.
PREPAID AND OTHER CURRENT ASSETS
Prepaid and other current assets, which include product introduction
expenses, are recorded at cost and amortized over the economic life thereof, but
not in excess of twelve months.
F-9
<PAGE>
ADVERTISING
General costs are expenses as incurred or prepaid until the
advertisement is published, at which time the related costs are expensed.
OTHER INTANGIBLE ASSETS
Intangible assets are composed of acquisition costs of Auburn Farms
and Natures Warehouse trademarks and debt issuance costs and are recorded at
cost. The acquisition costs associated with trademarks are being amortized on a
straight-line basis over twenty years. All other intangible assets are being
amortized on a straight-line basis over periods not exceeding five years.
These costs are reviewed by management periodically and written down
to the value of the future benefit expected to be derived.
REVENUE
Product sales and related costs are recognized when the Company's
products are shipped from the commercial warehouse used by the Company or the
contract manufacturer to the customer.
IMPAIRMENT OF LONG-LIVED ASSETS
Statement of Financial Accounting Standards No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
("SFAS No. 121") establishes guidelines regarding when impairment losses on
long-lived assets, which include plant and equipment and certain identifiable
intangible assets, should be recognized and how impairment losses should be
measured. The Company periodically reviews such assets for possible impairment
and expected losses, if any, are recorded currently.
INCOME (LOSS) PER SHARE
Statement of Financial Accounting Standards No. 128, "Earnings per
Share" ("SFAS 128") issued by the FASB is effective for financial statements
with fiscal years and interim periods ending after December 15, 1997. SFAS 128
provides for the calculation of Basic and Diluted earnings per share. Basic
earnings per share includes no dilution and is computed by dividing income
available to common shareholders by the weighted average number of common shares
outstanding for the period. Diluted earnings per share reflects the potential
dilution of securities that could share in the earnings of an entity, such as
stock options, warrants or convertible debentures. The Company adopted SFAS 128
on December 15, 1997 and it had no effect on income (loss) per share.
F-10
<PAGE>
INCOME TAXES
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective 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. A valuation allowance is provided when management
cannot determine whether or not it is more likely that the net deferred tax
asset will be realized. The effect on deferred tax assets and liabilities of a
change in the rates is recognized in income in the period that includes the
enactment date.
STATEMENT OF CASH FLOWS
For purposes of the statements of cash flows, the Company considers
cash and cash equivalents to include cash on hand and cash equivalents with
original maturities of three months or less.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair value of the Company's debt instruments is based on 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.
STOCK COMPENSATION
As of January 1, 1996, the Company adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS
123"). SFAS 123 allows an entity to elect to continue to measure compensation
cost under Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees" (APB No. 25), but requires pro forma disclosures of net
earnings and earnings per share as if the fair-valued-based method of accounting
had been applied. In accordance with FASB 123, the Company elected to continue
to measure compensation cost under APB No. 25, and comply with the pro forma
disclosure requirements.
DISCLOSURE OF INFORMATION ABOUT CAPITAL STRUCTURE
Statement of Financial Accounting Standard No. 129, "Disclosure of
Information about Capital Structure," ("SFAS 129") issued by the FASB is
effective for financial statements with fiscal years ending after December 15,
1997. The new standard reinstates various securities disclosure requirements
previously in effect under Accounting Principles Board Opinion No. 15, which has
been superceded by SFAS No. 128. The Company adopted SFAS No. 129 on December
15, 1997 and it did not have any effect on its financial position or results of
operations.
REPORTING COMPREHENSIVE INCOME
Statement of Financial Accounting Standard No. 130, "Reporting
Comprehensive Income," ("SFAS 130") issued by the FASB is effective for
financial statements with fiscal years ending after December 15, 1997. Earlier
application is permitted. SFAS 130 establishes standards for reporting and
display of comprehensive income and its components in a full set of general-
purpose financial statements. The Company does not expect adoption of SFAS 130
to have any effect on its financial position or results of operations.
F-11
<PAGE>
DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION
Statement of Financial Accounting Standards No. 131, "Disclosures
about Segments of an Enterprise and Related Information" ("SFAS 131") issued by
the FASB is effective for financial statements with fiscal years ending after
December 15, 1997. SFAS 131 requires that public companies report certain
information about operating segments, products, services and geographical areas
in which they operate and their major customers. The Company does not expect
adoption of SFAS 131 to have any effect on its financial position or results of
operations; however, disclosures with respect to the aforementioned items may be
increased.
F-12
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - THE COMPANY
Vitafort International Corporation (the "Company") was incorporated on
September 28, 1989 in the State of Delaware to succeed to the business of a
California corporation of the same name which was organized on February 7, 1986.
The Company is presently engaged in formulating and marketing fat-free foods.
NOTE 2 - LIQUIDITY AND GOING CONCERN
For the past several years, the Company has suffered recurring losses
from operations, including $4,151,305 for the year ended December 31, 1997.
Although the Company has raised additional capital after year-end 1997 (see Note
15), it has not generated sufficient revenue-producing activity to sustain its
operations. Accordingly, there is substantial doubt regarding the Company's
ability to continue as a going concern. The Company is attempting to raise
additional capital to meet future financial obligations, but may not be able to
do so. Should the Company not be able to raise additional capital, it may have
to severely curtail operations.
The Company has reduced its cost of sales by centralizing the
warehousing of its products in a single location and negotiated lower rates with
existing manufacturers or by selecting another competent less expensive
producer. In addition, the Company increased prices on the majority of its
products effective August 1 of this year and changed its terms of sale to F.O.B.
the Company's warehouse. The Company also eliminated the cash discount for
prompt payment since most customers were taking the discount beyond the terms.
The Company has also introduced reformulated products at the end of 1997 and
plans to introduce new products in 1998. These steps, coupled with improvements
in subcontract manufacturing quality control and quality assurance, monitoring
improvements in Company internal control and communications with respect to
product returns and deductions, should improve the Company's prospects to
achieve profitability.
NOTE 3 - INVENTORY
Inventory is stated at the lower of cost (first in, first out) or
market. Market-based valuations are based upon estimates and assumptions, and
are generally limited to slow moving product offerings. Inventory consists of
the following:
<TABLE>
<CAPTION>
December 31,
1997 1996
-------- --------
<S> <C> <C>
Finished goods $ 30,188 $168,709
Packaging and raw material 217,423 192,487
-------- --------
$247,611 $361,196
======== ========
</TABLE>
F-13
<PAGE>
NOTE 4 - PREPAID AND OTHER CURRENT ASSETS
Prepaid expenses and other current assets, as of December 31, 1997 and
1996, are detailed as follows:
<TABLE>
<CAPTION>
December 31,
1997 1996
-------- --------
<S> <C> <C>
Deposits $ 1,100 $ 10,000
Product introduction costs 10,711 177,865
Insurance 36,377 14,897
Consulting 108,080 -
Other prepaids 113,000 68,969
-------- --------
Total prepaid and other current assets $269,268 $271,731
======== ========
</TABLE>
NOTE 5 - ACCRUED EXPENSES
Accrued expenses consist of the following:
<TABLE>
<CAPTION>
December 31,
1997 1996
-------- --------
<S> <C> <C>
Accrued compensation $156,764 $ 90,753
Accrued interest payable - 436
Accrued legal fees 40,112 120,811
Accrued consulting fees 4,919 13,500
Other accrued expenses 140,642 115,980
-------- --------
Total accrued expenses $342,437 $341,480
======== ========
</TABLE>
NOTE 6 - NOTES PAYABLE
BANK
----
In August 1996, the Company entered into a revolving credit facility
with a financing institution that provides a credit line of up to $4,000,000
subject to certain covenants. Advances made to the Company under the facility
are based on a certain percentage of eligible accounts receivable, as defined,
and a certain percentage of eligible inventory, as defined. The amount of
inventory advances under the facility cannot exceed $500,000. The initial term
of the facility ends August 1998, with automatic renewals thereafter for one
year periods. Advances under the facility bear an interest rate at the Bank of
America NT prime plus 3%, and are secured by a first priority lien on all of the
Company's assets. Minimum interest charges are currently $15,000 per month.
The Company paid $40,000 to the institution upon execution of the agreement and
$40,000 to a facilitator in connection with the placement of the loan. The
Company was in violation of certain covenants with respect to working capital
and tangible net worth requirements during the first half of 1997. Upon receipt
of the Keebler award, the Company was no longer in violation of any of the
covenants. No assurance can be given that the Company will not be in violation
of such covenants in the future.
OTHER
-----
Notes payable - other, represents the current balance of the original
conversion of $601,723 of trade accounts payable. These notes are unsecured and
payable in various monthly installments with a maximum
F-14
<PAGE>
repayment of approximately $64,000 in January 1998 (including interest at
various rates). The notes have various maturity dates through December 1998.
NOTE 7 - LONG-TERM DEBT
The Company's long-term debt, which approximates fair value, as of
December 31, 1997 and 1996 consists of a 14% note payable in the amount of
$37,859, due in monthly installments of $4,033, secured by certain of the
Company's equipment. The entire amount is classified as a current liability.
Under the Debt Subordination Agreement between Coast Business Credit and the
long-term debt holders, payments on this note ceased until the loan with Coast
is fully paid.
NOTE 8 - INCOME TAXES
As the Company has incurred significant operating losses since
inception, its current tax provision has been limited to minimum California tax
payments.
The difference between the Federal income tax rate and the effective
income tax rate on net income (loss) from continuing operations is as follows:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C> <C> <C>
Estimated Federal income taxes 34.0% $ 162,000 (34.0)% $(2,760,000)
State income taxes, net of Federal
income tax benefit 6.0 28,000 (6.0) (498,000)
Change in valuation allowance (44.0) (206,800) 39.1 3,172,000
Other, net 4.0 20,000 0.9 89,159
----- --------- ----- -----------
- % $ 3,200 - % $ 3,159
===== ========= ===== ===========
</TABLE>
The tax effects of temporary differences that give rise to deferred
tax assets and liabilities are as follows:
<TABLE>
<CAPTION>
1997 1996
----------- -----------
<S> <C> <C>
Deferred income tax assets:
Net operating loss carryforwards $ 7,230,000 $ 7,259,000
Tax credit carryforwards 70,000 70,000
Allowance for bad debts 70,000 32,000
Inventory reserves 200,000 473,000
Other 55,000 26,000
----------- -----------
Total gross deferred income tax assets 7,625,000 7,860,000
Deferred income tax liabilities (20,000) (24,000)
----------- -----------
7,605,000 7,836,000
Less valuation allowance (7,605,000) (7,836,000)
----------- -----------
Net deferred income taxes $ - $ -
=========== ===========
</TABLE>
Net deferred tax assets of approximately $7,605,000 resulting from net
operating losses, tax credits and other temporary differences have been offset
by a valuation allowance since management does not believe that it is more
likely than not that such assets will be realized.
F-15
<PAGE>
As of December 31, 1997, the Company had unused Federal and California
net operating loss carryforwards of approximately $19,600,000 and $6,400,000,
respectively, available to offset against future Federal taxable income and
future California taxable income. In addition, the Company had unused research
and experimental credits of $44,000 and $26,000 for Federal and California state
purposes. The unused net operating loss and credit carryforwards expire in
various amounts through the year 2012. In contrast to Federal net operating
losses, only 50% of the California net operating losses incurred subsequent to
December 31, 1986 may be carried forward. The California net operating losses
will expire in various amounts through the year 2002.
Due to restrictions imposed by the Internal Revenue Code regarding
substantial changes in ownership of companies with loss carryforwards, the
utilization of the above-mentioned net operating losses may be limited as a
result of changes in stock ownership. The annual utilization of these losses is
limited to an amount equal to the estimated fair value (for income tax purposes)
of the Company at the point of stock ownership change, multiplied by the long-
term tax-exempt rate then in effect. The annual limitation has not been
quantified at this time.
NOTE 9 - STOCKHOLDERS' EQUITY
CONVERTIBLE PREFERRED STOCK
The Company entered into a subscription agreement in the amount of
$500,000 in April 1997 with an unrelated investor for 500 shares of 1997 Series
A Preferred Stock. The preferred stock has a cumulative dividend rate of 6%
with no voting rights. The conversion price is the lower of $1.25 per share or
a 30% discount to the market price at the time of conversion. The preferred
stock is convertible at any time. For accounting purposes, the original issue
discount of $214,286 is being treated as a deemed dividend. The facilitator
received a 10% fee from the proceeds, as well as warrants to purchase 35,000
shares of common stock at an exercise price of $1.00 per share. Cumulative
unpaid dividends amounted to $22,500 at December 31, 1997.
The Company entered into a subscription agreement in the amount of
$250,000 in May 1997 with another investor for 250 shares of 1997 Series A
Preferred Stock. The series has a cumulative dividend rate of 6%, no voting
rights, and is convertible at any time at the lower of $1.25 or a 30% discount
to the market price at the time of conversion. For accounting purposes, the
original issue discount of $54,878 is being treated as a deemed dividend. The
facilitator received a 10% fee from the proceeds and a warrant to purchase
17,500 shares of common stock at an exercise price of $1.00 per share.
Cumulative unpaid dividends amounted to $10,000 at December 31, 1997.
Each share of Series B 10% Cumulative Convertible Preferred stock is
convertible into 1.667 shares of common stock, and cumulative convertible
dividends of 10% per annum are payable annually commencing October 1992. The
Series B 10% Cumulative Preferred stock has a liquidation preference of $50 per
share plus all accrued and unpaid dividends. It is subject to optional
redemption by the Company at any time at $50 per share plus accrued and unpaid
dividends. Cumulative unpaid dividends amounted to $25,000 and $20,000 at
December 31, 1997 and 1996, respectively.
During 1996, the Company offered the holders of Series B Cumulated
Convertible Preferred Stock more favorable exchange rates to encourage
conversion of the shares to common stock. As a result, in August 1996, the
holder of 500 shares of Series B Cumulative Convertible Preferred Stock
exchanged his shares and accumulated accrued and unpaid dividends for 2,500
shares of common stock. The value of the inducement to the Series B holders was
not material.
F-16
<PAGE>
Each share of Series C Convertible Preferred Stock is convertible into
100 shares of common stock and 100 warrants. Series C Convertible Preferred
Stock does not carry any dividend rights. The warrants expired in June 1994.
Additionally, the Series C Convertible Stock has a dilutive conversion factor.
The Series C Convertible Preferred Stock has a liquidation preference of $1,000
per share after Series B Cumulative Convertible Preferred Stock, and to holders
of common stock.
The shares of Series A, Series B and Series C Preferred stock are not
currently registered under the Securities Exchange Act of 1934.
COMMON STOCK
The Company entered into a subscription agreement in February 1997
with an investor who purchased 500,000 shares of common stock at $1.00 per
share. At funding, a 10% fee was paid to a facilitator and warrants were given
to that same facilitator to purchase 125,000 shares of common stock at a price
of $1.375 per share which was later reduced to $1.00.
The Company issued 70,000 shares at a value of $1.125 per share as
settlement for a contract dispute.
The Company issued 126,000 shares of common stock in March 1997 and
350,589 shares of common stock in August 1997 under an S-8 filing as payment for
services rendered by various consultants and employees. The shares of common
stock were valued at the amount received by the consultants and employees upon
sale of these shares. As a result, the Company reduced the amount owed to these
consultants and employees by $461,782.
In August 1997, the Company issued 100,000 shares of common stock at
$.93 per share to a professional firm for previous services rendered.
The Company issued 61,000 shares of common stock at $.96 per share in
September 1997 under an S-8 filing and 25,000 shares of restricted common stock
at $1.00 per share in November 1997 as payment for $83,581 of services rendered
by various employees and consultants.
The Company issued 20,000 shares at a value of $1.125 per share and
10,000 shares at a value of $1.06 per share upon the exercise of options granted
to a former employee as compensation for consulting services and past unpaid
accrued vacation.
The Company issued 176,600 shares at $.875 per share and 6,000 shares
at $.91 per share upon the exercise of options granted under the Non-Incentive
Stock Option Plan. Non-officers of the Company paid the exercise price of such
options through the application of accrued payroll and other various expenses.
During 1997, a consultant exercised options for 60,000 shares of
common stock at $.93 per share and 40,000 shares of common stock at $1.00 per
share as payment for services rendered. No cash was received by the Company.
F-17
<PAGE>
In July 1997, another consultant exercised options for 30,000 shares
of common stock at $1.00 per share as payment for services rendered. No cash was
received by the Company.
In January 1996, the Company completed its private placement offerings
of common stock. Total shares issued in these offerings were 1,121,667 at prices
of $3.00 to $6.00. Total proceeds to the Company were $3,028,500, net of
expenses of $336,500. At December 31, 1995, $1,530,249 was received
representing subscriptions for 635,000 common shares under this private
placement offering.
In March 1996, the Company completed a private placement of 250,000
common shares receiving $1,350,000, net of expenses of $150,000.
In April 1996, the Company completed a private placement of 283,333
common shares receiving $651,590, net of expenses of $118,410.
During 1996 the Company issued 579,957 shares of common stock valued
at $1,377,644 to attorneys, consultants and employees as payment for services.
During September 1995, pursuant to a contractual agreement, the
Company issued 100,000 shares of its common stock to a public
relations/financial consulting firm and authorized an additional 100,000 shares
to be issued to the consulting firm upon performance under the contract for
$600,000 of prepaid consulting fees. In 1996, this contract was terminated. As
a result, the final 100,000 shares representing $300,000 were never issued and
were eliminated from subscribed stock.
On October 4, 1996, a 1 for 20 reverse stock split was effected. All
share amounts in this report have been retroactively adjusted to reflect this
stock split.
NOTE 10 - STOCK OPTIONS
The 1989 Stock Option Plan, as amended (the "Plan") reserved 50,000
shares of common stock (as adjusted for the reverse split effected in 1996) to
grant either nonqualified or incentive stock options. All directors, officers,
key employees and consultants to the Company or its subsidiaries are eligible
under the terms of the Plan. Such options may not be granted at less than 100%
of the fair market value at the date of grant (110% for an owner of 10% or more
of the outstanding stock). Upon termination of service, the options, which an
individual was entitled to exercise at the date of termination may be exercised
at any time within six months of such termination. If an employee is terminated
with cause, the options are canceled upon termination. As of December 31, 1997,
no options are outstanding under this plan.
In 1995, the Company adopted the 1995 Stock Option Plan (the "1995
Plan") pursuant to which 2,000,000 shares of Common Stock (as adjusted for the
reverse stock split effected in 1996) were reserved for issuance upon the
exercise of options. The 1995 Plan is similar to the 1989 Plan in many respects
and in the discussion below, each is referred to as a "Plan" and they are
collectively referred to as the "Plans".
The Company has also granted stock options outside the Plans to other
individuals, such as employees and consultants, in consideration for services
performed. The options were granted at fair market value and at various terms
and vesting periods. The following table on the next page summarizes all option
activity for the years ended December 31, 1997 and 1996:
F-18
<PAGE>
<TABLE>
<CAPTION>
Number of Common Stock Options Weighted
1995 Stock Other Stock Average
Option Plan Options Price
----------- ----------- --------
<S> <C> <C> <C>
Outstanding as of January 1, 1996 2,000,000 794,222 $2.73
Granted 22,500 79,750 1.11
Exercised (53,725) (120,490) 1.47
Canceled (423,775) (42,250) 3.78
--------- --------- -----
Outstanding as of December 31, 1996 1,545,000 711,232 3.54
Granted 185,600 3,343,500 0.93
Exercised (182,600) (160,000) 1.24
Canceled (316,292) (8,750) 2.02
--------- --------- -----
Outstanding as of December 31, 1997 1,231,708 3,885,982 $1.55
========= ========= =====
Exercisable as of December 31, 1997 1,131,708 3,095,872 $1.69
========= ========= =====
</TABLE>
FASB Statement 123, "Accounting for Stock-Based Compensation,"
requires the Company to provide pro forma information regarding net income and
earnings per share as if compensation cost for the Company's stock option plans
had been determined in accordance with the fair value based method prescribed in
FASB Statement 123. The Company estimates the fair value of each stock option,
using the Black-Scholes method, at the weighted-average assumption used for
grants in fiscal 1997 and 1996 dividend yield of zero percent; expected
volatility of 28 percent and 36 percent; risk-free interest rate of seven
percent; and expected lives of 5.1 and 5.0 years, respectively.
The weighted average fair value of options granted during 1997 and
1996 was $.39 and $.38, respectively.
Under the accounting provisions of FASB Statement 123, the Company's
net income (loss) and income (loss) per share for 1997 and 1996 would have been
reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
Net Income (Loss) 1997 1996
- -------------------------------------------------------------
<S> <C> <C>
As reported $203,867 ($8,122,815)
Pro forma $(31,881) ($8,122,815)
Basic income (loss) per share
- -----------------------------
As reported $ 0.03 ($ 1.58)
Pro forma $ (0.01) ($ 1.58)
Diluted income (loss) per share
- -------------------------------
As reported $ 0.03 ($ 1.58)
Pro forma $ (0.01) ($ 1.58)
</TABLE>
F-19
<PAGE>
Due to the fact that the Company's stock option programs vest over
many years and additionally awards may be made each year, the above pro forma
numbers are not indicative of the financial impact had the disclosure provisions
of FASB 123 been applicable to all years of previous grants. The numbers above
do not include the effect of options granted prior to 1995 that vested in 1996
and 1997.
The following table summarizes information about stock options
outstanding at December 31, 1997:
<TABLE>
<CAPTION>
Options Options Exercisable
Outstanding -------------------
Number Weighted-Average Number Weighted
Range of Outstanding Remaining Weighted-Average Exercisable Average
Exercisable Prices At 12/31/97 Contractual Life Exercise Price at 12/31/97 Exercise Price
- ------------------ ----------- ---------------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
$ 0.80 - $ 2.80 4,197,010 1.8 $ 0.94 3,306,900 $ 0.95
- ---------------------------------------------------------------------------------------------------------
$ 3.00 362,333 1.1 3.00 362,333 3.00
- ---------------------------------------------------------------------------------------------------------
$ 3.30 - $ 7.50 520,597 0.6 4.67 520,597 4.67
- ---------------------------------------------------------------------------------------------------------
$10.00 - $20.00 37,750 9.93 12.52 37,750 12.52
- -----------------========================================================================================
Totals 5,117,690 1.2 $ 1.55 4,227,580 $ 1.69
- -----------------========================================================================================
</TABLE>
NOTE 11 - COMMITMENTS
LEASE AGREEMENT
The Company was obligated under a lease agreement for its executive
offices through August 1997. From September 1997 forward, the Company is renting
the offices on a month-to-month basis at a rate of $6,250 per month.
Rent expense for the years ended December 31, 1997 and 1996 including
parking, included in selling, general and administrative expenses, was $98,538
and $75,743, respectively.
EMPLOYMENT AGREEMENTS
On December 1, 1993, the Company entered into a three-year employment
agreement with Mark Beychok which provided for an annual base salary of
$150,000, the grant of an option to purchase 100,000 shares of common stock at
$5.00 per share (as adjusted for the reverse stock split effected in 1996), and
$1,000,000 of life insurance, the proceeds of which will be split equally
between the employee's beneficiary and the Company. In December 1995, in
recognition of Mr. Beychok's deferral of his compensation during 1995 and his
assuming additional responsibilities within the Company, Mr. Beychok's
employment agreement was amended to grant him an additional 62,500 five-year
options with an exercise price of $3.00 (as adjusted for the reverse stock split
effected in 1996), a price equal to the offering price in the Company's then on-
going private placement. In November 1995, Mr. Beychok agreed to convert his
accrued salary to stock and options on the same terms as the Company's on-going
equity bridge financing. The Company's Board of Directors approved this
transaction in December 1995. In such connection, Mr. Beychok converted $45,821
of accrued salary into 19,092 shares; 9,547 options with an exercise price of
$4.50; and 9,547 options with an exercise price of $6.00. In September 1997,
Mr. Beychok entered into a
F-20
<PAGE>
new employment agreement ("Agreement") with the Company for three years. Under
the Agreement, Mr. Beychok receives an annual base salary of $150,000 and was
granted options for 450,000 shares of stock at an exercise price of $0.87 per
share. Such options vest 75,000 each on September 3, 1997, March 3, 1998,
September 3, 1998, March 3, 1999, September 3, 1999, and March 3, 2000. In May
1997 the price of all options other than those related to the private placement
were repriced to $0.91. In September 1997 Mr. Beychok was given a successful
litigation reward of $51,535 plus 100,000 shares of common stock at fair market
value of $1.00.
In August 1996, the Company entered into an employment agreement with
John Coppolino, which was dated January 1, 1996. Under his agreement, which is
for a one year term, with two one year renewal terms at the option of the
Company, Mr. Coppolino received an initial salary of $102,000; and, is entitled
to annual increases of 5-6% based on increases in the cost of living. Mr.
Coppolino's employment agreement provided for the grant of 225,000 options,
expiring December 31, 2000 for the purchase of common stock at $3.00 (as
adjusted for the reverse stock split effected in October 1996). Of these
options: (i) 56,250 have vested (ii) 56,250 have lapsed and (iii) 56,250 will
vest on each of January 1, 1998 and January 1, 1999, subject to the Company
meeting certain performance criteria. In May 1997 the Board of Directors
reduced the option price of all unlapsed options to $0.91 and removed the
vesting requirement. In September 1997, Mr. Coppolino entered into a new
employment agreement ("Agreement") with the Company for two years. Under the
Agreement, Mr. Coppolino receives an annual base salary of $120,000, and was
granted options for 300,000 shares of stock at an exercise price of $0.87 per
share. Such options vest 75,000 each on September 3, 1997, March 3, 1998,
September 3, 1998, and March 3, 1999. In September 1997, Mr. Coppolino was
given a successful litigation reward of $25,000, forgiveness of debt of $25,000,
plus 25,000 shares of common stock at $1.00, being the fair market value at the
date of the award.
In June 1997, the Company entered into a two year employment agreement
with Jack B. Spencer under which Mr. Spencer will serve the Company as its Chief
Operating Officer and Chief Financial Officer. The agreement provides for
compensation to Mr. Spencer in the amount of $125,000 per annum and the grant of
an aggregate of 300,000 five year incentive stock options with an exercise price
of $ 0.91 per share (such being the market price of the common stock on the date
the agreement was executed). The options vest as to 109,890 shares on September
15, 1997 and 109,890 shares on June 16, 1998, and 80,220 shares on June 16,
1999. Mr. Spencer's employment agreement provides that if Mr. Spencer's
employment by the Company is terminated without cause after September 15, 1997,
then Mr. Spencer shall be entitled to six months severance pay. Mr. Spencer's
employment agreement also provides that upon the occurrence of certain events
constituting a change in control of the Company, as defined therein, followed by
certain changes in Mr. Spencer's duties, Mr. Spencer shall be entitled to
receive a severance equal to one and one half times his then current annual
salary plus certain other benefits designed, in part, to offset any special
taxes that might be imposed upon Mr. Spencer in connection with such payments.
AUBURN FARMS TRADEMARK ACQUISITION
The Company entered into a purchase agreement in 1996 whereby it
acquired the Auburn Farms trademark and other related trademarks. Deferred
payments, which will be accounted for as royalties under the agreement, amount
to 3-1/2% of gross sales of products sold using these trademarks during the 30
months beginning May 1, 1996, with gradually reducing percentages over the next
successive three thirty-month periods. Deferred payments under the agreement
made in 1996 were $45,612 and in 1997 were $18,801 and were expensed as
royalties during the year.
NOTE 12 - MAJOR CUSTOMERS
The Company derived the following revenue from major customers, each
of which provided 10% or more of total revenues during the year ended December
31, 1997 and 1996:
F-21
<PAGE>
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
K-Mart $ - $606,199
A-1 International, Inc. 320,235 -
-------- --------
Total $320,235 $606,199
======== ========
</TABLE>
NOTE 13 - LITIGATION
The Company is subject to pending claims and litigation, the most
significant of which are discussed below.
In December 1994, Lloyd Gaunt, who invested an aggregate of $75,000 in
certain of the Company's private placements, initiated an action in Superior
Court, Orange County, California against his stockbroker, two national brokerage
firms, several companies in which he had invested; and, certain of those
company's officers. Included among the defendants was the Company and its then
Chief Executive Officer. The complaint seeks damages in an unspecified amount
in excess of $500,000 and punitive damages in an unspecified amount in excess of
$5,000,000. The Court has dismissed the class action claims as to the Company
and granted a motion that the claims against the brokerage firms and associated
persons must be submitted to arbitration. The Plaintiff has appealed that
ruling. The Company denies any liability to the plaintiff and intends to
vigorously defend this action. The Company notes that the plaintiff sold a
portion of the securities he purchased from the Company, realizing a profit;
that the balance of the securities became salable under Rule 144; and that, if
sold, the Plaintiff 's losses might be as little as $15,000.
In connection with the acquisition of assets of Auburn Farms, Inc.,
(AFI) under the FPA, the Company acquired certain rights of AFI against its co-
packer and against Barbara's Bakery. The Company is pursuing these rights, and
in May 1996, initiated an action alleging Lanham Act violations,
misappropriation of trade secrets, unfair competition and related claims. The
defendants have filed counterclaims against the Company, Auburn Farms and Mark
Beychok alleging various tort and contract claims. The litigation is in the
early stages and the Company intends to vigorously pursue the same, with trial
scheduled to begin September 14, 1998.
On October 9, 1996, a complaint was filed in Superior Court, the
County of Los Angeles, in an action entitled "Eloy Louis Ellis vs. Vitafort,
Inc., a Delaware Corporation; Mark Beychok and Does 1-50 inclusive." The
complaint alleges Breach of Oral Contract, Breach of Written Contract, and other
similar claims arising out of the consulting relationship that previously
existed between the Company and Mr. Ellis. The Complaint seeks damages in an
unspecified amount. The court dismissed the complaint against Mark Beychok
without leave to amend. Mr. Ellis recently filed an amended complaint against
the Company. The Company is defending the action vigorously and trial is
scheduled for March 31, 1998.
The Company filed a counter-claim against Ellis charging violations of
Section 16(b) of the Securities Exchange Act of 1934 (short swing profits).
Ellis sold stock in violation of that section and, therefore, the profits,
estimated at $20,000, belong to the Company. In March 1998, the court ruled in
favor of the Company in this matter and awarded $21,260. On June 2, 1998, the
parties resolved the issues. Under the terms of the agreement, the settlement is
treated as confidential and the public response has been agreed to as follows:
"The matter has been resolved."
F-22
<PAGE>
NOTE 14 - RELATED PARTY TRANSACTIONS
The Company has entered into related party transactions during 1996
and 1997. See Notes 9, 10, 11 and 16 for further detailed information.
NOTE 15 - SUBSEQUENT EVENTS
In March 1998, the Company entered into a subscription agreement in
the amount of $500,000 for 500 shares of Series A 1997 Preferred Stock. The
preferred stock has a cumulative dividend rate of 6% with no voting rights. The
conversion price is at a discount of 21.5% if the market price of the stock is
below $0.6875. If the market price is above $0.6875, the exercise price is the
fair market value on the day of exercise; however, the holder receives warrants
in sufficient quantity to achieve a profit equal to the computed 21.5% discount.
The holder has agreed not to convert before August 10, 1998 in exchange for
these terms.
The Company is currently negotiating the acquisition of Global
International Sourcing, Inc., ("Global") a Nevada corporation, by acquiring the
stock of the corporation from its sole shareholder. Global is a company with
international contacts to provide natural and low fat food products for Vitafort
to sell into the United States market at a cost significantly below those found
in the United States for similar products. The Company has advanced monies to
Global as of year end over the last sixty days to meet operating expenses and
fund inventory purchases for future sales. In the event the acquisition is not
completed, the Company feels Global has the resources to repay the advances.
NOTE 16 - LITIGATION RECOVERY, NET OF COSTS
On June 20, 1997, the Company received notice of the interim award
under the arbitration with the Keebler Company. The award was for $5,983,923 as
well as compensation for all legal fees and costs associated with the
arbitration proceedings. Based on the agreement with ATCOLP INVESTMENT PARTNERS
(the "Lender"), in which Donald Wohl, a Director of the Company, is the general
partner, the Company agreed to pay the Lender a sliding percentage of the
proceeds from the settlement in exchange for advancing $300,000 to the Company
to meet the litigation expenses. The Board of Directors, with Mr. Wohl
abstaining, considered two bids and found his to be the more reasonable of the
two.
On July 15, 1997, the Company received $6,750,000 in full and final
settlement. Of that amount, $1,055,608 was paid for legal fees and costs, plus
$1,236,885 to ATCOLP INVESTMENT PARTNERS under the existing agreement and
$300,000 to repay the loan. Also, the Company issued a warrant for 200,000
shares of common stock to ATCOLP INVESTMENT PARTNERS as additional
consideration. The Company recorded $138,000 as additional fees to ATCOLP for
the warrant, that amount being the estimated fair value of non-registered
securities on that day. Additionally, the Company was able to cancel $140,829 in
debt due to the Keebler Company. The amount of the award, $5,983,000, has been
reported as income, under the heading litigation, net of costs, while the
difference between the $6,750,000 award and the $5,983,000 recovery, or
$767,000, has been treated as a reimbursement of expenses in the general and
administrative expenses for the year ended December 31, 1997.
F-23
<PAGE>
NOTE 17 - EARNINGS PER SHARE
The following table reconciles the numerators and denominators of the
basic and diluted earnings per share computation:
<TABLE>
<CAPTION>
December 31,
1997 1996
----- -----
<S> <C> <C>
BASIC EARNINGS (LOSS) PER SHARE
Net income (loss) $ 473,031 $(8,122,815)
Deemed dividends (269,164) -
----------- -----------
Income (loss) available to common stockholders (numerator) $ 203,867 $(8,122,815)
=========== ===========
Weighted average common shares outstanding (denominator) 5,831,404 5,133,665
=========== ===========
Basic earnings (loss) per share $ 0.03 $ (1.58)
=========== ===========
DILUTED EARNINGS (LOSS) PER SHARE
Income (loss) available to common shareholders (numerator) $ 203,867 $(8,122,815)
=========== ===========
Weighted average common shares outstanding 5,831,404 5,133,665
Weighted average options outstanding 2,511,516 -
Weighted average convertible preferred stock 6,667 -
Stock acquired with proceeds (2,006,190) -
----------- -----------
Weighted average common shares and
assumed conversions outstanding (denominator) 6,343,397 5,133,665
=========== ===========
Diluted earnings (loss) per share $ 0.03 $ (1.58)
=========== ===========
</TABLE>
Options and warrants to purchase 958,565 and 2,256,232 shares of
common stock at various prices per share, at December 31, 1997 and 1996,
respectively, were not included in the computation of diluted earnings (loss)
per share because the effect would be antidilutive.
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Company's Certificate of Incorporation provides
for indemnification of the Company's officers and directors to the fullest
extent permitted under the General Corporation Law of the State of Delaware
("DGCL").
SECTION 145 of the DGCL, as amended, applies to the Company and the
relevant portion of the DGCL provides as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) A corporation may indemnify any person
who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative
F-24
<PAGE>
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made (1) by the board of directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders.
F-25
<PAGE>
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officer and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purpose of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
F-26
<PAGE>
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The Company maintains insurance for the benefit of its directors and
officers and the directors and officers of its subsidiaries, insuring such
persons against certain liabilities, including liabilities arising under the
securities laws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable. Furthermore, the Company has given certain
undertakings with respect to indemnification in connection with this
Registration Statement.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission filing fee $ 768.77
National Association of Securities Dealers, Inc. filing fee $ 753.69
Transfer Agent's and Registrar's Fees $ *
Legal fees and expenses $ *
Accounting fees and expenses $ *
Miscellaneous $ *
--------
TOTAL $ *
* To be provided by amendment
All amounts estimated except for Securities and Exchange Commission and National
Association of Securities Dealers, Inc. filing fee.
(1) As required by agreements between the Company and the Selling Stockholders,
all of these expenses of issuance and distribution will be paid by the Company.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
During February 1995, the Registrant issued $500,000 principal amount
of its secured promissory notes and 450,000 options to purchase its common stock
at a price of $.07 per share (22,500 options to purchase shares at $1.40 as
adjusted for a reverse stock split effected October 4, 1997) in a private
placement pursuant to Regulation D under the Securities Act to six accredited
investors. The notes were sold for $500,000 and the options for $10,000. The
Company paid a commission of 7% to a broker dealer in connection with such
notes.
During June 1995, the Registrant issued 107,486 shares of its common
stock (5,374 shares as adjusted for the reverse stock split effected October 4,
1996) to a note holder in exchange for the accrued principal and interest on a
note. The note had been issued for cash consideration equal to its face value.
The conversion price was $.40 per share ($8.00 as adjusted for a reverse stock
split effected October 4, 1996). The transaction was exempt from registration
under the Securities Act by reason of Section 4(2) thereof and the Registrant
obtained representations with respect to investment intent from the note holder.
During July 1995, the Registrant issued 90,000 shares of its common
stock (2,250 shares as adjusted for the reverse stock split effected October 4,
1996) for $.07 per share ($1.40 per share as adjusted for the reverse stock
split effected October 4, 1996) upon the exercise of an option granted in
connection with the
F-27
<PAGE>
February 1995 private placement described above. The transaction was exempt
from registration under the Securities Act by reason of Section 4(2) thereof and
the Registrant obtained representations with respect to investment intent from
the option holder. The Company did not pay any commission with respect to such
exercise.
During October 1995, the Registrant issued 4,320,000 shares of its
common stock (216,000 shares as adjusted for a reverse stock split effected
October 4, 1996) to a note holder upon conversion of a note. $500,000 principal
amount of note and $40,000 of accrued interest were converted in such
transaction. The conversion price was $.125 per share ($2.50 as adjusted for the
reverse stock split effected October 4, 1996). The issuance of the note was
exempt from registration by reason of Regulation S promulgated under the
Securities Act. The sale was to a non-US person located outside the United
States.
During November 1995, the Registrant issued 5,208,333 shares of its
common stock (260,417 shares as adjusted for the reverse stock split effected
October 4, 1996) at $.125 per share ($2.50 as adjusted for the reverse stock
split effected October 4, 1996) in a private placement pursuant to Regulation D
under the Securities Act to accredited investors. The Registrant realized net
proceeds of $563,960 from this private placement. For each share purchased in
the private placement, the investors also received 1/2 warrant at $.225 ($4.50
as adjusted for the reverse split effected on October 4, 1996) and 1/2 warrant
at $.30 ($6.00 as adjusted for the reverse stock split effected on October 4,
1996).
During December 1995, the registrant issued 64,284 shares of its
common stock (3,214 shares as adjusted for a reverse stock split effected on
October 4, 1996) to an investor in exchange for 50 shares of its Series B
Convertible Preferred Stock and all of the dividends thereon. The transaction
was exempt from registration under the Securities Act by reason of Section
3(a)(9) thereof as a transaction with an existing security holder.
During June and December 1995, the Registrant issued an aggregate of
475,680 shares of its common stock (18,410 shares as adjusted for a reverse
stock split effected October 4, 1996) to note holders in exchange for the
accrued principal and interest on a note. The note had been issued for cash
consideration equal to its face value. The principal amount of the notes was
$162,500. The transaction was exempt from registration under the Securities Act
by reason of Section 4(2) thereof and the Registrant obtained representations
with respect to investment intent from the note holder.
During December 1995, the Registrant exchanged 300 shares of its
Series D Preferred Stock for 896,000 shares of its common stock (44,800 shares
as adjusted for a reverse stock split effected October 4, 1996) in a privately
negotiated transaction which was exempt from registration under the Securities
Act by reason of Section 4(2) thereof and the Registrant obtained
representations with respect to investment intent from the shareholder.
During January 1996, the Registrant issued 357,143 shares of its
common stock (17,856 as adjusted for a reverse stock split effected October 4,
1996) to a consultant in connection with the exercise of an option with an
exercise price of $.10 ($2.00 as adjusted for a reverse stock split effected
October 4, 1996). The transaction was exempt from registration under the
Securities Act by reason of Section 4(2) thereof and the Registrant obtained
representations with respect to investment intent from the exercising option
holder.
During November 1995 to February 1996, the Registrant sold an
aggregate of 22,433,334 shares of its common stock (1,201,667 shares as adjusted
for the reverse stock split effected October 4, 1996) at $.15 per share ($3.00
as adjusted for the reverse stock split effected October 4, 1996) in a private
placement pursuant to Regulation D under the Securities Act to accredited
investors. The Registrant realized net proceeds of $3,028,500 from these
private placement and paid the placement agent commissions of $336,500. For
each share purchased in these private placements, the investors also received
1/2 warrant at $.225 ($4.50 as
F-28
<PAGE>
adjusted for the reverse split effected on October 4, 1996) and 1/2 warrant at
$.30 ($6.00 as adjusted for the reverse stock split effected on October 4,
1996).
During March 1996, the Registrant exchanged 1,112,533 shares of its
common stock (55,627 shares as adjusted for the reverse stock split effected
October 4, 1996) for 372.5 shares of its Series D Preferred Stock, including all
accrued dividends thereon. The effective price of the exchange was $.375 per
share ($7.50 as adjusted for the reverse stock split effected October 4, 1996).
The transaction was exempt from the registration requirements of the Securities
Act by reason of section 3(a)(9) thereof as a transaction with existing security
holders.
During March 1996, the Registrant issued 5,000,000 shares of its
common stock (250,000 shares as adjusted for the reverse stock split effected
October 4, 1996) pursuant to the exemption from registration afforded by
Regulation S promulgated under the Securities Act for transactions with non-US
persons which transactions occur outside the United States. The Registrant
received appropriate representations from the investor. Registrant realized net
proceeds of $1,350,000 from this private placement and paid the placement agent
a commission of $150,000.
During April 1996, the Registrant issued 5,666,667 shares of its
common stock (283,333 shares as adjusted for the reverse stock split effected
October 4, 1996) pursuant to the exemption from registration afforded by
Regulation S promulgated under the Securities Act for transactions with non-US
persons which transactions occur outside the United States. The Registrant
received appropriate representations from the investor. Registrant realized net
proceeds of $651,590 from these private placements and paid placement agents
commissions of $118,410.
During May 1996, in connection with the private placement in November
1995 to February 1996, the Company issued an aggregate of 4,733,332 shares of
its common stock (236,667 shares as adjusted for a reverse stock split effected
October 4, 1996) upon conversion of indebtedness of $710,000. The transaction
was with accredited investors and was exempt from the registration requirements
of the Securities Act pursuant to Regulation D promulgated thereunder. The
Registrant obtained the required investment representations from the investors
and otherwise complied with the requirements of Regulation D.
During July 1996, the Registrant sold 30,000 shares of its common
stock (1,500 shares as adjusted for the reverse stock split effected October 4,
1996) upon exercise of an option with an exercise price of $.07 ($1.40 as
adjusted for the reverse stock split effected October 4, 1996) in a transaction
exempt from the registration requirements of the Securities Act by reason of
Section 4(2) thereof. The Registrant obtained representations with respect to
investment intent from the exercising option holder.
During August 1996, the registrant issued 49,998 shares of its common
stock (2,500 shares as adjusted for a reverse stock split effected on October 4,
1996) to an investor in exchange for 50 shares of its Series B Convertible
Preferred Stock and all of the dividends thereon. The transaction was exempt
from registration under the Securities Act by reason of Section 3(a)(9) thereof
as a transaction with an existing security holder.
During October 1996, the Registrant issued 80,000 shares of its common
stock at $5.00 per share to eight accredited investors in a transaction exempt
from the registration requirements of the Securities Act pursuant to Regulation
D promulgated thereunder.
During February 1997, the Registrant sold 500,000 shares of its common
stock to an accredited investor for $1.00 per share. The transaction was exempt
from registration under the Securities Act by reason of Regulation D promulgated
thereunder.
F-29
<PAGE>
During April 1997, the Registrant sold 500 shares of its 1997 Series A
Preferred Stock to an accredited investor for $1,000 per share. The transaction
was exempt from registration under the Securities Act by reason of Regulation D
promulgated thereunder.
During May 1997, the Registrant sold 250 shares of its 1997 Series A
Preferred Stock to an accredited investor for $1,000 per share. The transaction
was exempt from registration under the Securities Act by reason of Regulation D
promulgated thereunder.
During July 1997, the Registrant issued 30,000 shares upon the partial
exercise of an option with an exercise price of $1.00 per share. The
transaction was exempt from registration under the Securities Act by reason of
Section 4(2) thereof and the Registrant obtained representations with respect to
investment intent from the exercising option holder.
F-30
<PAGE>
VITAFORT INTERNATIONAL CORPORATION
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
Consolidated Financial Statements:
Balance Sheets - March 31, 1998 (unaudited) and December 31, 1997........ F-32 - F-33
Statements of Operations -
Three Month Periods Ended March 31, 1998 and 1997 (unaudited)............ F-34
Statement of Stockholders' Equity (Deficit) -
Three Month Period Ended March 31, 1998 (unaudited)...................... F-36
Statements of Cash Flows -
Three Month Periods Ended March 31, 1998 and 1997 (unaudited)............ F-35
Notes to the Financial Statements (unaudited)............................ F-37
</TABLE>
F-31
<PAGE>
VITAFORT INTERNATIONAL CORPORATION & SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
As of March 31, 1998 and December 31, 1997
ASSETS
------
<TABLE>
<CAPTION>
March 31,
1998 December 31,
(Unaudited) 1997
----------- -----------
<S> <C> <C>
Current assets
Cash and cash equivalents $1,068,943 $2,199,036
Accounts receivable, trade, less allowance
for doubtful accounts of $25,743 507,644 412,289
Inventory (Note 3) 311,811 247,611
Notes receivable - related party 104,290 10,000
Prepaid expenses and other current assets (Note 4) 393,999 269,268
---------- ----------
Total Current Assets 2,386,687 3,138,204
---------- ----------
Equipment
Manufacturing equipment 290,912 290,912
Furniture and equipment 126,667 105,160
Computer equipment 195,821 193,571
---------- ----------
613,400 589,643
Less accumulated depreciation (376,975) (347,493)
---------- ----------
236,425 242,150
---------- ----------
Other Assets
Intangible assets, net of accumulated amortization
of $99,278 and $73,163 (Note 6) 517,089 338,091
Advances to Global International Sourcing - 193,818
Other assets 1,100 -
---------- ----------
Total Other Assets 518,189 531,909
---------- ----------
$3,141,301 $3,912,263
========== ==========
</TABLE>
See accompanying notes to condensed consolidated financial statements
F-32
<PAGE>
VITAFORT INTERNATIONAL CORPORATION & SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
As of March 31, 1998 and December 31, 1997
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
<TABLE>
<CAPTION>
March 31,
1998 December 31,
(Unaudited) 1997
------------ ------------
<S> <C> <C>
Current liabilities
Notes payable - bank (Note 7) $ 28,485 $ 60,757
Notes payable - others 152,210 283,898
Accounts payable 765,787 909,315
Accrued expenses (Note 5) 231,479 342,437
Current maturities of long-term debt (Note 7) 37,859 37,859
------------ ------------
Total Current Liabilities 1,215,820 1,634,266
------------ ------------
Commitments and contingencies (Notes 9 and 10)
Stockholders' equity
Series A, 6% Cumulative Convertible Preferred Stock,
$0.01 par value; 1,701 shares authorized; issued and
outstanding 1,701 and 750 shares, aggregate liquidation
preference of $1,701,000 and $750,000 (Note 8) 17 8
Series B, 10% Cumulative Convertible Preferred Stock,
$.01 par value; authorized 1l0,000 shares; issued and
outstanding 1,000 shares, aggregate liquidation
preference of $50,000 10 10
Series C, Convertible Preferred Stock, $.01 par value;
authorized 450 shares; issued and outstanding 50 shares,
aggregate liquidation preference of $50,000 1 1
Common stock, $.0001 par value; authorized 30,000,000
shares; issued and outstanding 6,973,853 and 6,683,853
shares (Note 8) 8,892 8,863
Additional paid-in-capital (Note 8) 24,027,291 23,115,727
Accumulated deficit (22,110,730) (20,846,612)
------------ ------------
Total Stockholders' Equity 1,925,481 2,277,997
------------ ------------
$ 3,141,301 $ 3,912,263
============ ============
</TABLE>
See accompanying notes to condensed consolidated financial statements
F-33
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended
March 31,
1998 1997
(Unaudited) (Unaudited)
----------- -----------
<S> <C> <C>
Net revenues $ 732,641 $ 765,239
Cost of sales 609,522 548,288
----------- -----------
Gross profit 123,119 216,951
----------- -----------
Operating expenses
Research and development 61,359 39,350
Sales and marketing 419,949 379,797
General and administrative 724,884 586,232
----------- -----------
Total Operating Expenses 1,206,192 1,005,379
----------- -----------
Loss from Operations (1,083,073) (788,428)
Other income (expense)
Other income 2,927 14,010
Interest income 30,826 -
Interest expense (47,870) (40,611)
----------- -----------
Total other income (expense) (14,117) (26,601)
----------- -----------
Loss before income tax expense (1,097,190) (815,029)
State income tax expense 3,200 -
----------- -----------
Net loss (1,100,390) (815,029)
Deemed dividend to preferred shareholders (Note 8) (163,728) -
----------- -----------
Net loss allocable to common shareholders $(1,264,118) $ (815,029)
=========== ===========
Loss per share $ (0.18) $ (0.14)
=========== ===========
Weighted average number of common shares outstanding 6,856,961 5,821,635
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements
F-34
<PAGE>
VITAFORT INTERNATIONAL CORPORATION & SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Three Months Ended March 31,
1998 1997
----------- ---------
<S> <C> <C>
Increase (Decrease) in Cash and Cash Equivalents
Cash flows from operating activities:
Net loss $(1,100,390) $(815,029)
Adjustments to reconcile net loss to cash and cash equivalents used in
operating activities:
Depreciation and amortization 55,597 41,569
Stock issued for services 12,334 -
Changes in operating assets and liabilities:
(Increase) decrease in assets:
Accounts receivable, trade, net (66,459) (77,527)
Inventories (59,200) 189,937
Other current assets (16,315) (19,603)
Other assets (1,100) -
Increase (decrease) in liabilities:
Accounts payable (107,257) 109,232
Accrued expenses (110,960) 54,223
----------- ---------
Cash and cash equivalents used in operating activities (1,393,749) (517,198)
----------- ---------
Cash flows from investing activities:
Purchase of equipment (8,757) -
Advances to related parties (68,142) -
Cash acquired through acquisition of subsidiary 5,515
----------- ---------
Cash and cash equivalents used in investing activities (71,384) -
----------- ---------
Cash flows from financing activities:
Proceeds from issuance of stock 498,999 696,422
Repayments of line of credit (32,272) 25,323
Repayments of notes payable (131,689) -
----------- ---------
Cash and cash equivalents provided by financing activities 335,039 721,745
----------- ---------
Increase (decrease) in cash and cash equivalents (1,130,094) 204,547
Cash and cash equivalents, beginning of period 2,199,036 188,867
----------- ---------
Cash and cash equivalents, end of period $ 1,068,942 $ 393,414
=========== =========
Supplemental disclosure of cash flow information
Cash paid during the period for:
Interest $ 47,870 $ 40,611
Income taxes $ 3,200 -
Supplemental disclosure of non-cash operating, investing, and
financial activities
Stock issued for accounts payable $ 131,750 -
Stock issued for prepaid consulting services $ 61,666 -
Stock issued for acquisition of marketing contract $ 43,124 -
</TABLE>
See accompanying notes to condensed consolidated financial statements
F-35
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 31, 1998
(UNAUDITED)
<TABLE>
<CAPTION>
Series A Series B
Cumulative Cumulative Series C
Convertible Convertible Convertible
Preferred Stock Preferred Stock Preferred Stock
--------------- --------------- --------------- Common Stock
Shares Amount Shares Amount Shares Amount Shares Amount
------ ------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1998 750 $ 8 1,000 $10 50 $1 6,683,853 $8,863
Series A Preferred issued in connection with
a private placement, net of expenses 500 5
(Note 8(f))
Common stock issued as settlement of contract
disputes (Notes 8 (a) and (b)) 115,000 12
Exercise of stock options (Notes 8 (d) and (e)) 115,000 11
Stock issued for acquisition of marketing contract 60,000 6
(Note 8 (c))
Preferred stock dividends (Note 8 (f)) 451 4
Net Loss
------ ------ ------ ------ ------ ------ --------- ------
Balance, March 31, 1998 1,701 $17 1,000 $10 50 $1 6,973,853 $8,892
====== ====== ====== ====== ====== ====== ========= ======
</TABLE>
<TABLE>
<CAPTION>
Additional
Paid-In Accumulated
Capital Deficit Total
------- ------- -----
<S> <C> <C> <C>
Balance, January 1, 1998 $23,115,727 $(20,846,612) $ 2,277,997
Series A Preferred issued in connection with
a private placement, net of expenses 498,995 499,000
(Note 8(F))
Common stock issued as settlement of contract
disputes (Notes 8 (a) and (b)) 116,738 116,750
Exercise of stock options (Notes 8 (d) and (e)) 88,989 89,000
Stock issued for acquisition of marketing contract 43,118 43,124
(Note 8 (c))
Preferred stock dividends (Note 8 (f)) 163,724 (163,728) (0)
Net Loss (1,100,390) (1,100,390)
----------- ------------ -----------
Balance, March 31, 1998 $24,027,291 $(22,110,730) $ 1,925,481
=========== ============ ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements
F-36
<PAGE>
VITAFORT INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - GENERAL
The accompanying unaudited consolidated financial statements have been
prepared on the same basis as the audited consolidated financial statements and,
in the opinion of management, reflect all adjustments (consisting of normal
recurring adjustments) necessary for a fair presentation for each of the periods
presented. The results of operations for interim periods are not necessarily
indicative of results to be achieved for full fiscal years.
As contemplated by the Securities and Exchange Commission (SEC) under item
310(b) of Regulation S-B, the accompanying consolidated financial statements and
related footnotes do not contain certain information that will be included in
the Company's annual consolidated financial statements and footnotes thereto.
For further information, refer to the consolidated financial statements and
related footnotes for the year ended December 31, 1997, which appears on pages
F-1 to F-30.
The Company is presently engaged in formulating, marketing and distributing
fat-free, low fat and reduced fat foods.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
(a) The accompanying consolidated financial statements include the accounts of
the Company and its subsidiaries. All material intercompany accounts and
transactions have been eliminated.
(b) Inventories are stated at the lower of cost (first-in, first-out basis) or
market.
(c) Prepaid assets include product introduction expenses (which are recorded at
cost and amortized over the economic life thereof, but not in excess of
twelve months), consulting and other prepaids.
(d) Fixed assets consist of manufacturing equipment, furniture, office
equipment, and computer equipment and are recorded at cost. Depreciation is
computed on a straight-line basis over the estimated useful life, generally
five years or less.
(e) Intangible assets, which are recorded at cost, consist of debt issuance
costs, acquisition costs of Auburn Farms and Natures Warehouse trademarks,
and goodwill associated with the acquisition of Global International
Sourcing, Inc. The acquisition costs associated with trademarks and
goodwill are being amortized on a straight-line basis over twenty years.
All other intangible assets are being amortized on a straight-line basis
over periods not exceeding five years. These costs are reviewed by
management periodically and written down to the value of the future benefit
expected to be derived when realizable value is lower than cost.
(f) For the purpose of cash flows, the Company considers all highly liquid
investments purchased with an original maturity of three months or less to
be cash equivalents.
(g) For the three months ended March 31, 1998 and 1997, basic and diluted loss
per share have been computed using the weighted average number of common
shares outstanding during the period. Options and warrants outstanding to
purchase shares of common stock at various prices
F-37
<PAGE>
per share at March, 31, 1998 and 1997, were not included in the computation
of diluted loss per share as the effect would be antidilutive. For the loss
at March 31, 1998, the numerator in the computation was adjusted by the
deemed dividend of $163,728 to arrive at the net loss allocable to common
shareholders. Dividends on cumulative preferred stock are not material.
(h) Advertising: Advertising costs are expensed as incurred or prepaid until
the advertisement is published, at which time the related costs are
expensed.
(i) Reporting on the Cost of Start-Up Activities: Statement of Position 98-5,
"Reporting on the Costs of Start-Up Activities," ("SOP 98-5") issued by the
Accounting Standards Executive Committee is effective for financial
statements with fiscal years beginning after December 15, 1998. SOP 98-5
requires that the costs of start-up activities should be expensed as
incurred. At the time of adopting this SOP, the initial application should
be reported as the cumulative effect of a change in accounting principles.
At March 31, 1998 and December 31, 1997, the Company capitalized product
introduction costs of $14,250 and $10,711, respectively. These costs are
considered as start-up activities under SOP 98-5. The Company does not
believe that the adoption of this SOP will have a material effect on its
financial position, results of operations or cash flows.
NOTE 3 - INVENTORIES
Inventories are stated at the lower of cost (first in, first out) or
market. Market-based valuations are based upon estimates and assumptions, and
are generally limited to slow moving product offerings. Inventory consists of
the following:
<TABLE>
<CAPTION>
March 31, 1998 December 31, 1997
-------------- -----------------
<S> <C> <C>
Finished goods $116,599 $ 30,188
Packaging and raw materials 195,212 217,423
-------- --------
$311,811 $247,611
======== ========
</TABLE>
NOTE 4 - PREPAID EXPENSES AND OTHER CURRENT ASSETS
Prepaid expenses and other current assets consist of the following:
<TABLE>
<CAPTION>
March 31, 1998 December 31, 1997
-------------- -----------------
<S> <C> <C>
Deposits $ - $ 1,100
Product introduction costs 14,250 10,711
Insurance 65,816 36,377
Consulting 137,714 108,080
Other prepaids 176,219 113,000
-------- --------
Total prepaid and other current assets $393,999 $269,268
======== ========
</TABLE>
NOTE 5 - ACCRUED EXPENSES
Accrued expenses consist of the following:
<TABLE>
<CAPTION>
March 31, 1998 December 31, 1997
-------------- -----------------
<S> <C> <C>
Accrued compensation $145,122 $156,764
Accrued commissions 17,295 -
Accrued legal fees - 40,112
Accrued consulting fees - 4,919
Other accrued expenses 69,062 140,642
-------- --------
Total accrued expenses $231,479 $342,437
======== ========
</TABLE>
F-38
<PAGE>
NOTE 6 - ACQUISITION OF SUBSIDIARY
Effective January 1, 1998, the Company acquired 100% of the outstanding
stock of Global International Sourcing, Inc. (Global) plus assumed liabilities
for $25. The acquisition was accounted for as a purchase and the operations of
Global are included herein for the three month period ended March 31, 1998. The
assets and liabilities of Global were recorded at fair value and resulted in
goodwill of $111,427, which will be amortized over 20 years. At December 31,
1997, the Company had advanced $193,818 to Global to meet operating expenses and
fund inventory purchases for future sales. The financial position and results of
operations of Global are not material in relation to the Company.
NOTE 7 - NOTES PAYABLE
Current maturities of long-term debt consists of a $37,859 14% note
payable, due in monthly installments of $4,033, including interest, through
October 1997, secured by certain of the Company's fixed assets. Under the Debt
Subordination Agreement between Coast Business Credit and the long-term debt
holders, payments on this note ceased until the loan with Coast is fully paid.
As of March 31, 1998, the Company is in violation of a covenant with respect to
$1.5 million of tangible net worth as required under its existing revolving
facility with Coast Business Credit. The Company is in negotiations with the
lender to resolve the violations.
NOTE 8 - STOCKHOLDERS' EQUITY
During the three month period ended March 31, 1998, the following stock
transactions occurred, all of which were valued at fair market:
(a) The Company issued 85,000 shares of common stock at a value of $1.00
per share as settlement for contract disputes previously recorded as a
liability.
(b) The Company issued 30,000 shares of common stock at a value of $1.058
per share as settlement of a contract dispute related to consulting
services previously recorded as a liability.
(c) The Company issued 60,000 shares of common stock at a value of
$.71875 per share and forgave a $25,000 note receivable in exchange
for the distribution rights with respect to all of the manufacturer's
marshmallow products in North America. The Company also received
$5,000 of sample inventory and $15,000 of furniture and equipment as
part of this transaction.
F-39
<PAGE>
(d) The Company issued 100,000 shares of common stock at a value of $0.74
per share upon the exercise of an option granted a consultant in
exchange for future consulting services.
(e) The Company issued 15,000 shares of common stock at a value of $1.00
per share upon the exercise of an option granted a consultant in
exchange for services rendered previously recorded as a liability.
(f) The Company entered into a subscription agreement in March 1998 with
an unrelated investor for $500,000 for 500 shares of 1997 Series A
Preferred Stock. The preferred stock has a cumulative dividend of 6%
with no voting rights. The preferred stock is convertible beginning
August 10, 1998, at a 21.5% discount if the fair market value of the
stock on the date of conversion is $0.6875 per share or less. If the
fair market value on the date of conversion is more than $0.6875 per
share, the preferred stock is convertible at fair market value.
However, if the preferred shares are converted at fair market value,
the preferred shareholders will receive sufficient warrants upon
conversion to purchase common stock at $0.6875 per share to generate a
$275 profit per share of preferred stock converted. At the time of the
transaction, the Company's common shares were trading above $0.6875
per share.
As part of this transaction, the Company also issued 451 shares of
1997 Series A Preferred Stock, as well as warrants to purchase 282,422
shares of common stock at $0.6875 per share to the previous holders of
750 shares of the 1997 Series A Preferred Stock in exchange for the
preferred stockholders accepting a change in the terms of the 1997
Series A Preferred Stock, primarily the loss of conversion to common
stock at a 30% discount factor. The change in the terms of the 1997
Series A Preferred Stock to the original holders of 750 shares of the
shares made their terms identical to the terms of the 500 shares of
new 1997 Series A Preferred Stock sold. The warrants may be exercised
over a five year period beginning August 10, 1998 . The combined
effect of the change in terms of the 1997 Series A Preferred Stock and
the 451 shares of 1997 Series A Preferred Stock issued to the original
1997 Series A Preferred Stockholders results in a deemed dividend of
$70,639 recorded in March 1998.
For accounting purposes, the issuance of warrants to purchase 282,422
shares of common stock to the 1997 Series A Preferred stockholders
results in a deemed dividend of $147,381 that will be recognized as a
deemed dividend at a rate of $24,564 per month through August 10,
1998.
The modified terms of the 1,701 total shares of 1997 Series A
Preferred Stock outstanding would result in an issuance of 787,563
warrants to purchase shares of common stock. The value of these
potential warrants issued is reflected as an original issued discount
of $411,128 at the time of the transaction. This original issue
discount is being treated as a deemed dividend that will be recognized
at a rate of $68,521 per month through August 10, 1998.
NOTE 9 - GOING CONCERN
The Company has prepared the financial statements included herewith
assuming that the Company will continue as a going concern. Although the
Company received proceeds from the Keebler arbitration in 1997 and has raised
additional capital in 1998, it must realize a satisfactory level of
profitability from its current and future operations in order to remain a viable
entity. The Company's auditors have included an explanatory paragraph in their
report for the year ended December 31, 1997 indicating there is substantial
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<PAGE>
doubt regarding the Company's ability to continue as a going concern. The
accompanying consolidated financial statements do not include any adjustments
that might result from the outcome of any uncertainty. The Company is
attempting to raise additional capital to meet future financial obligations, but
may not be able to do so. Should the Company not be able to raise additional
capital, it may have to severely curtail operations.
NOTE 10 - LITIGATION
The Company is subject to pending claims and litigation, the most
significant of which are discussed below.
In December 1994, Lloyd Gaunt, who invested an aggregate of $75,000 in
certain of the Company's private placements, initiated an action in Superior
Court, Orange County, California against his stockbroker, two national brokerage
firms, several companies in which he had invested; and, certain of those
company's officers. Included among the defendants was the Company and its then
Chief Executive Officer. The complaint seeks damages in an unspecified amount
in excess of $500,000 and punitive damages in an unspecified amount in excess of
$5,000,000. The Court has dismissed the class action claims as to the Company
and granted a motion that the claims against the brokerage firms and associated
persons must be submitted to arbitration. The Plaintiff has appealed that
ruling. The Company denies any liability to the plaintiff and intends to
vigorously defend this action. The Company notes that the plaintiff sold a
portion of the securities he purchased from the Company, realizing a profit;
that the balance of the securities became salable under Rule 144; and that, if
sold, the Plaintiff`s losses might be as little as $15,000.
In connection with the acquisition of assets of Auburn Farms, Inc.,
("AFI"), the Company acquired the intellectual property and certain claims of
AFI which it was asserting against AFI's co-packer, New Life Bakers ("New Life")
and against a customer of New Life, Barbara's Bakery ("Barbara's"). In May 1996,
the Company filed an action in federal court alleging Lanham Act violations,
misappropriation of trade secrets, unfair competition, conspiracy and related
claims arising out of New Life and Barbara's misappropriation of Auburn Farms'
principal products. Although no trial date has been set, the Company expects the
case to proceed to a jury trial in the first half of 1999.
On March 25, 1998, New Life and Barbara's purported to purchase from AFI's
bankruptcy estate certain claims against Barbara's and New Life for $300,000.
The purchased claims do not include any of the claims previously acquired by the
Company. The Company expects New Life and Barbara's to raise by motion the
effect of the March 25, 1998 bankruptcy purchase. The Company has been advised
by outside litigation counsel that evidence supports a claim for damages in
excess of $3 million for the destruction of AFI's business and intellectual
property rights. The Company may be obligated to pay a portion of any recovery
against New Life to AFI's bankruptcy estate and/or its creditors. The Company
intends to pursue this litigation vigorously. There is no assurance given that
the Company will receive any recovery.
On October 9, 1996, a complaint was filed in Superior Court, the County of
Los Angeles, in an action entitled "Eloy Louis Ellis vs. Vitafort, Inc., a
Delaware Corporation; Mark Beychok and Does 1-50 inclusive." The complaint
alleges Breach of Oral Contract, Breach of Written Contract, and other similar
claims arising out of the consulting relationship that previously existed
between the Company and Mr. Ellis. The Complaint seeks damages in an
unspecified amount. The court dismissed the complaint against Mark Beychok
without leave to amend. Mr. Ellis recently filed an amended complaint against
the Company. The Company is defending the action vigorously and trial is
imminent. In a related action, the Company filed a lawsuit against Ellis
charging violations of Section 16(b) of the Securities Exchange Act of 1934
(short swing profits). Ellis sold stock in violation of that section and,
therefore, the profits, estimated at $20,000, belong to the Company. In March
1998, the court ruled in favor of the Company in this matter and awarded
$21,260. Ellis has appealed the ruling. On June 2, 1998 the parties resolved
the issues. Under the terms of the agreement, the settlement is treated as
confidential and the public response has been agreed to as follows: "The matter
has been resolved."
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AS RESULTS OF OPERATIONS
(UNAUDITED)
CAUTIONARY STATEMENT FOR PURPOSES OF "SAFE HARBOR PROVISIONS" OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995:
Except for historical facts, all matters discussed in this report which are
forward looking involve a high degree of risks and uncertainties. Potential
risks and uncertainties include, but are not limited to, competitive pressures
from other food companies and within the grocery industry, economic conditions
in the Company's primary markets and other uncertainties detailed from time to
time in the Company's Securities and Exchange Commission filings.
THREE MONTHS ENDED MARCH 31, 1998 AND 1997
- ------------------------------------------
RESULTS OF OPERATIONS:
The Company continues to focus on the development of new products and the
repair of customer relationships, especially in the northeast, where the
majority of the customers for Fudgets and Caketts were located and thus a
significant portion of the past problems. Progress was made in the development
area for new products to be introduced in the second and third quarters of 1998.
The Company has recently expanded its product line by utilizing its new
tradename "Avenue of the Stars" to sell products through motion picture
licenses. However, the lack of sales velocity, especially in the Fudgets and
Caketts product lines, has negatively impacted the overall results.
Consolidation of the warehouse facilities was completed in the first quarter and
should bring the Company savings for the balance of the year compared to the
cost of maintaining separate facilities. Additionally, the Company has
reestablished credit terms with the majority of its co-packers and has finalized
negotiations for payment schedules for some of its significant creditors.
The proceeds from the Keebler Company arbitration continue to support the
Company's immediate cash requirements through the current period of product
development and customer reestablishment. The new products, with targeted
improved margins, should improve the sales levels for the second quarter of 1998
and beyond, although there can be no assurance that the Company can maintain any
significant increased level of sales over any extended time periods.
The acquisition of Global International Sourcing in the first quarter of
1998 has improved the Company's access to overseas products. This should result
in improved sales. Additionally, Global brings its own customers and sales
level to the Company, although functioning primarily as a broker, it does not
provide the same gross profit levels targeted for the Company's current business
areas.
The development programs for new products continue, with certain of these
products scheduled for release in the second and third quarters of 1998. While
such introductions may have little, if any, impact in the quarter the product is
introduced due to the amount of time required for distribution into the
channels, it should provide a cascading effect over future periods.
NET REVENUES:
For the three months ended March 31, 1998, net sales were $732,641 compared
to $765,239 for the same period in 1997, a decrease of $32,598 or approximately
4.3%. The loss of Fudgets and Caketts sales, which in the three months ended
March 31, 1997 were $361,701, were not replaced by any other of the
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Item 27. Exhibits.
(a) The following exhibits are submitted herewith:
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3.l Certificate of Incorporation of Registrant(i)
3.2 By-laws of Registrant(i)
3.3 Agreement and Plan of Merger between the Registrant and
Vitafort International Corporation, a California corporation(i)
3.4 Certificate of Designation - Series A Preferred Stock(v)
3.5 Certificate of Designation - Series B Preferred Stock(v)
3.6 Certificate of Amendment to the Certificate of Incorporation,
November 1991(v)
3.7 Certificate of Designation - Series C Preferred Stock(v)
3.8 Certificate of Amendment to the Certificate of Incorporation, filed
February 8, 1994(vi)
3.9 Certificate of Designation - Series D Preferred Stock(vi)
3.10 Certificate of Amendment to the Registrant's Certificate of
Incorporation, filed November, 1995. Incorporated by reference to
Exhibit 4.10 filed with the Registrant's Registration Statement on
Form S-8 filed January 25, 1996 File Number 33-300435 (the "January
1996 S-8").
3.11 Certificate of Elimination - Series A Preferred Stock. Incorporated
by reference to Exhibit 4.24 to the Registrant's Registration
Statement on Form S-8 Filed May 22, 1996 File Number 333-04271 (the
"May 1996 S-8").
3.12 Certificate of Elimination - Series D Preferred Stock. Incorporated
by reference to Exhibit 4.25 to the May 1996 S-8.
3.13 Certificate of Amendment to the Registrant's Certificate of
Incorporation, filed October 4, 1996. Incorporated by reference to
Exhibit 4.29 to the Registrant's Registration Statement on Form S-8
Filed December 12, 1996, File Number 333-17763 (the "December 1996
S-8").
3.14 Amended Certificate of Designation of the Registrant's 1997 Series A
Preferred Stock filed May 1997
3.15 Amended Certificate of Designation of the Registrant's 1997 Series A
Preferred Stock filed March 1998 (filed herewith)
4.1 Specimen Stock Certificate. Incorporated by reference to Exhibit 4.1
Filed with the Registrant's Annual Report on Form 10K-SB for the
Year ended December 31, 1996 (the "1996 10K-SB")
4.2 Specimen Redeemable Common Stock Purchase Warrant(i)
4.3 Form of Warrant Agreement(i)
4.4 Proposed form of Underwriters Warrant Agreement(i)
4.5
4.6 Warrant Extension Agreement, December 18, 1992(v)
4.7 Warrant Extension Agreement, December 18, 1994(vi)
4.8 Warrant Extension Agreement, January 18, 1995(vi)
4.9 Warrant Extension Agreement, April 3, 1995(vi)
4.10 Warrant Extension Agreement, May 3, 1995. Incorporated by reference
to Exhibit 4.18 to the January 1996 S-8.
4.11 Warrant Extension Agreement, June 15, 1995. Incorporated by
reference to Exhibit 4.19 to the January 1996 S-8.
4.12 Warrant Extension Agreement, July 17, 1995. Incorporated by
reference to Exhibit 4.20 to the January 1996 S-8.
4.13 Warrant Extension Agreement, August 16, 1995. Incorporated by
reference to Exhibit 4.21 to the January 1996 S-8.
4.14 Warrant Extension Agreement, December 31, 1995. Incorporated by
reference to Exhibit 4.21 to the January 1996 S-8.
4.15 Warrant Extension Agreement, April 30, 1996. Incorporated by
reference to Exhibit 4.23 to the May 1996 S-8.
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4.16 Warrant Extension Agreement, July 31, 1996. Incorporated by
reference to Exhibit 4.26 to the December 1996 S-8.
4.17 Warrant Extension Agreement, September 30, 1996. Incorporated by
reference to Exhibit 4.27 to the December 1996 S-8.
4.18 Warrant Extension Agreement, November 11, 1996. Incorporated by
reference to Exhibit 4.28 to the December 1996 S-8.
4.19 Warrant Extension Agreement, April 15, 1997. Incorporated by
reference to Exhibit 4.19 to the 1996 10K-SB.
4.20 Warrant Extension Agreement, October 31, 1997.(x)
5.1 Opinion of Frank J. Hariton, Esq. (filed herewith)
10.1 Loan Agreement, dated August 19, 1988, between the Registrant and
Bishop Capital, L.P. and promissory note in the principal amount
of $150,000(i)
10.2 License Agreement, dated April 25, 1986, between the Registrant
and Crystal Geyser Water Registrant and amendment, dated January 7,
1988(i)
10.3 Demand Promissory Note, dated July 10, 1987, from Registrant to
Joseph R. Daly in the principal amount of $300,000 and
Modification, dated October 11, 1989(i)
10.4 License Agreement, dated as of October 9, 1987, between the
Registrant and Good Health Beverage, Inc. and amendment, dated
November 23, 1988(i)
10.5 Product Development Agreement, dated as of January 21, 1988,
between the Registrant and International Multifoods, Inc.(i)
10.6 Beverage Agreement, dated as of October 31, 1988, between the
Registrant and PowerBurst Corporation(i)
10.7 Amended and Restated Agreement, dated August 2, 1989, between the
Registrant and Vitafort Far East Co., Ltd.(i)
10.8 Agreement, dated August 11, 1989, between Barry Saltzman, MD. and
Yoshio Tanaka(i)
10.9 Lease, dated June 13, 1988, between Registrant and Shelterpoint
Equities, Ltd. for offices at 591 Redwood Highway, Mill Valley,
California(i)
10.10 Agreement, dated July 25, 1989, between Nutrifish Corporation and
Mt. Lassen Trout Farms(i)
10.11 Salmon Rondelles Joint Development and Marketing Agreement, dated
as of September 18, 1989, between Nutrifish Corporation and
Norwegian Seafoods, Inc.(i)
10.12 Whole Salmon Joint Development and Marketing Agreement, dated as
of September 26, 1989, between Nutrifish Corporation and
Norwegian Seafoods, Inc.(i)
10.13 Employment Agreement, dated September 13, between the Registrant
and Barry K. Saltzman(i)
10.14 Employment Agreement, dated September 13, between the Registrant
and Jeffrey Lewenthal(i)
10.15 The Registrant's 1989 Stock Option Plan(i)
10.16 Stock Option Agreement, dated as of July 17, 1989 between the
Registrant and Jeffrey Lewenthal(i)
10.17 Secrecy Agreement, dated as of May 2, 1986, between the Registrant
and Hoffman-LaRoche, Inc.(i)
10.18 Joint Venture Agreement, dated September 29, 1989, between the
Registrant and Agrolife Technologies, Inc.(i)
10.19 Consulting Agreement, dated September 13, 1989, between the
Registrant and Randall S. Reis(i)
10.20 Loan Agreement, dated June 15, 1989, between Union Bank and
Joseph R. Daly(i)
10.21 Form of Employee Confidentiality Agreement.(ii)
10.23 Form of Escrow Agreement by and among the Registrant, Gilford
Securities Corp., and certain stockholders of Registrant(i)
10.24 Promissory Note, made November 21, 1989, by Nutrifish Corporation
and payable to Joseph R. Daly(i)
10.25 Right of First Refusal Agreement, dated November 21, 1989, between
Nutrifish Corporation and Joseph R. Daly(i)
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10.26 Production License Agreement for Nutrifish Norwegian Salmon, dated
February 2, 1990, between Nutrifish Corporation and Norwegian
Seafoods, Inc.(ii)
10.27 Test Market Agreement, dated December 19, 1989, between
International Multifoods Corporation and the Registrant.(ii)
10.28 Amendment, dated as of December 19, 1989, to the Product
Development Agreement between International Multifoods
Corporation and the Registrant.(ii)
10.29 Consulting Agreement, dated February 21, 1990, between the
Registrant and Joseph R. Daly.(ii)
10.30 License Agreement between the Registrant and Nulaid Foods, Inc.,
dated April 30, 1990.(ii)
10.31 License Agreement between the Registrant and Vitafort Latin
America, dated July 30, 1990.(ii)
10.32 Termination Agreement between the Registrant and Jeffrey D.
Lewenthal, dated September 12, 1990.(ii)
10.33 Settlement Agreement and Full Release between Nicholas J. Caputo
and Registrant, dated October 4, 1990.(ii)
10.34 Employment Agreement between the Registrant and Stephen D. Clow,
dated December 1, 1990.(ii)
10.35 Employment Agreement between the Registrant and Frank A. Corsini,
dated January 2, 1991.(ii)
10.36 Stock Option Agreement between the Registrant and Stephen D. Clow,
dated January 2, 1991.(ii)
10.37 Stock Option Agreement between the Registrant and Frank A. Corsini,
dated January 2, 1991.(ii)
10.38 Letter Agreement, dated February 1, 1991, amending Consulting
Agreement between the Registrant and Joseph R. Daly.(ii)
10.39 Letter Agreement, dated March 12, 1991, between the Registrant
and Joseph R. Daly regarding debt reorganization.(ii)
10.40 Consulting Agreement between Norman Kretchmer, MD., Ph.D., and
the Registrant, dated December 20, 1988.(ii)
10.41 Settlement Agreement between the Registrant and PowerBurst
Corporation, dated September 23, 1991.(ii)
10.42 Subscription Agreement between the Registrant and Societe Anonyme
Financier Industrielle et Garantie, dated November 1, 1991.
Incorporated by reference to Exhibit 1 to the Registrant's Report
on Form 8-K dated November 1, 1991.
10.43 Exclusive Distribution Agreement between Registrant and Chicago
Fish House, dated June 13, 1991.(ii)
10.44 Larry Lucas Settlement Agreement, dated March 25, 1993.(v)
10.45 Frank Corsini, Separation Agreement, dated May 18, 1993.(v)
10.46 Agreement dated October 5, 1993 between the Registrant and Second
Nature Technologies, Inc.(iii)
10.47 Food and Beverage Technology Agreement(iii)
10.48 Asset Purchase and Sale Agreement, dated as of June 7, 1993 by and
among Crystal Clear Farms, Inc., a Maine corporation, the
Registrant and Salmon Distribution Subsidiary, Inc. a Maine
corporation which was formerly known as Crystal Clear Farms, Inc.
(iv)
10.49 Temporary Operating Agreement dated June 7, 1993 by and among
Samuel L. Thompson & Associates, Inc., a Maine corporation, the
Registrant and Crystal Clear Farms, Inc. a Maine corporation (now
known as Salmon distribution Subsidiary, Inc.)(iv)
10.50 Non-Competition Agreement dated July 27, 1993 by and between the
Registrant and Crystal clear farms, Inc., a Maine corporation.(iv)
10.51 Employment Agreement dated as of November 29, 1993, between the
Registrant and Steven Westlund. Incorporated by reference to
exhibit 99.01 to Form S-8 filed by the Registrant on March 4, 1994
(the "1994 S-8").
10.52 Stock Option Agreement dated as of November 29, 1993 between the
Registrant and Steven Westlund. Incorporated by reference to
exhibit 99.02 to the 1994 S-8.
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10.53 Stock Option Agreement dated as of September 15, 1993 between the
Registrant and Steven Westlund. Incorporated by reference to
exhibit 99.03 to 1994 S-8.
10.54 Employment Agreement dated as of November 29, 1993 between the
Registrant and Peter Benz. Incorporated by reference to exhibit
99.04 to 1994 S-8.
10.55 Stock Option Agreement dated as of November 29, 1993 between the
Registrant and Peter Benz. Incorporated by reference to exhibit
99.05 to 1994 S-8.
10.56 Employment Agreement dated as of November 29, 1993 between the
Registrant and Mark Beychok. Incorporated by reference to exhibit
99.06 to the 1994 S-8.
10.57 Stock Option Agreement dated as of November 29, 1993 between the
Registrant and Mark Beychok. Incorporated by reference to exhibit
99.07 to the 1994 S-8.
10.58 Stock Option Agreement dated as of September 15, 1993 between the
Registrant and Mark Beychok. Incorporated by reference to exhibit
99.08 to the 1994 S-8.
10.59 Consulting Agreement dated as of November 29, 1993 between the
Registrant and Herman Jacobs. Incorporated by reference to
exhibit 99.09 to the 1994 S-8.
10.60 Stock Option Agreement dated as of November 29, 1993 between the
Registrant and Herman Jacobs. Incorporated by reference to
exhibit 99.10 to the 1994 S-8.
10.61 Vitafort International Corporation 90 Day Operating Plan.
Incorporated by reference to exhibit 99.21 to the 1994 S-8.
10.62 Stock Option Agreement, dated September 15, 1993, between the
Registrant and Stanley J. Pasarell. Incorporated by reference to
exhibit 99.22 to the 1994 S-8.
10.63 Separation and Release Agreement, dated as of December 1, 1994,
between the Registrant and Peter Benz.(vi)
10.64 Letter Agreement, dated September 14, 1995, between the Registrant
and Peter T. Benz. Incorporated by reference to the like numbered
exhibit to the Registrant's Form 10-KSB for the year ended
December 31, 1995.
10.65 Consulting Agreement and Mutual Release, dated as of March 1, 1995,
between the Registrant and Steven R. Westlund. Incorporated by
reference to the like numbered exhibit to the Registrant's Form
10-KSB for the year ended December 31, 1995.
10.66 Letter Agreement, dated November 30, 1995, between the Registrant
and Steven Westlund. Incorporated by reference to the like
numbered exhibit to the Registrant's Form 10-KSB for the year
ended December 31, 1995.
10.67 The Vitafort International Corporation 1995 Stock Option Plan.
Incorporated by reference to exhibit 99.01 to the January 1996 S-8.
10.68 Form of Option granted to directors under The Vitafort
International Corporation 1995 Stock Option Plan and schedule of
grants to directors. Incorporated by reference to exhibit 99.02
to the January 1996 S-8.
10.69 Employee Option granted to Mark Beychok under The Vitafort
International Corporation 1995 Stock Option Plan. Incorporated
by reference to exhibit 99.03 to the January 1996 S-8.
10.70 Amendment, dated December 16, 1995, to the Employment Agreement
between the Registrant and Mark Beychok. Incorporated by
reference to exhibit 99.10 to the January 1996 S-8.
10.71 Option Agreement, dated December 16, 1995, between the Registrant
and Mark Beychok. Incorporated by reference to exhibit 99.11 to
the January 1996 S-8.
10.72 Conversion Agreement, dated as of December 30, 1995, between the
Registrant and Mark Beychok. Incorporated by reference to
exhibit 99.20 to the January 1996 S-8.
10.73 Class A Option Agreement, dated as of December 30, 1995, between
the Registrant and Mark Beychok. Incorporated by reference to
exhibit 99.21 to the January 1996 S-8.
10.74 Class B Option Agreement, dated as of December 30, 1995, between
the Registrant and Mark Beychok. Incorporated by reference to
exhibit 99.22 to the January 1996 S-8.
10.75 Conversion Agreement, dated as of March 26, 1996, between the
Registrant and John Coppolino. Incorporated by reference to
Exhibit 9.18 to the May 1996 S-8.
10.76 Class A Option Agreement, dated as of March 26, 1996, between the
Registrant and John Coppolino. Incorporated by reference to
Exhibit 9.19 to the May 1996 S-8.
</TABLE>
F-46
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10.77 Class B Option Agreement, dated as of March 26, 1996, between the
Registrant and John Coppolino. Incorporated by reference to
Exhibit 9.20 to the May 1996 S-8.
10.78 Employment Agreement, between the Registrant and John Coppolino.
Incorporated by reference to Exhibit 10.78 to the 1996 Form 10-KSB.
10.79 Foreclosure Purchase Agreement related to the Acquisition of assets
of Auburn Farms, Inc. Incorporated by reference to Exhibit 1 to
the Registrant's Form 8-K, dated May 2, 1996.
10.80 Loan and Security Agreement, dated August 15, 1996, between the
Registrant and Coast Business Credit, a division of Southern
Pacific Thrift & Loan Association. Incorporated by reference to
Exhibit 1 to the Registrant's Form 8-K, dated August 15, 1996.
10.81 Agreement, dated as of July 10, 1996, between the Registrant and
Second Nature Technologies, Inc. Incorporated by reference to
Exhibit 10.81 to the 1996 Form 10-KSB.
10.82 Employment Agreement dated June 16, 1997 between Jack Spencer and
the Registrant. Incorporated by reference to Exhibit 10.12 of the
Registrant's Form SB-2 filed July 23,1997
10.83 Agreement, dated April 1997, between the Registrant and ATCOLP
Investment Partners, a California Limited Partnership.
Incorporated by reference to the Registrant's Form SB-2 filed
July 23, 1997
10.84 Employment Agreement dated September 1997 between the Registrant
and Mark Beychok.(x)
10.85 Employment Agreement dated September 1997 between the Registrant
and John Coppolino.(x)
16.2 Letter on change in certifying accountant. (filed herewith)
22. Subsidiaries of the Registrant:
The Registrant does not have any significant subsidiaries.
23.1 Consent of BDO Seidman, LLP (filed herewith)
23.2 Consent of Frank J. Hariton, Esq. (included as part of Exhibit 5.1
filed herewith)
</TABLE>
(i) Incorporated by reference to the same numbered exhibit to the
Registrant's Registration Statement on Form S-18, file number 33-31883.
(ii) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1990 and 1989 Form 10-K's.
(iii) Incorporated by reference to exhibits 1 & 2 to the Registrant's
September 30, 1993 Form 10-QSB.
(iv) Incorporated by reference to exhibits 1 through 4 to the Registrant's
August 7, 1993 Form 8-K.
(v) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1993 Form 10-KSB.
(vi) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1994 Form 10-KSB.
(vii) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1995 Form 10-KSB.
(viii) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1996 Form 10-KSB.
(ix) Incorporated by reference to the same numbered exhibit to the
Registrant's December 31, 1997 Form 10-KSB.
(x) Incorporated by reference to the same numbered exhibit to the
Registrant's January 14, 1998 Form SB-2/A.
F-47
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Item 29. Undertakings.
A. Rule 415 Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement or the most recent
post-effective amendment thereof which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B. INDEMNIFICATION UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant 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
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted against the Registrant by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
F-48
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned in the City of Los
Angeles, State of California on June 24, 1998.
VITAFORT INTERNATIONAL CORPORATION
By: /s/ Mark Beychok
-------------------------
Mark Beychok, President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark Beychok and Jack B. Spencer, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
/s/ Mark Beychok Director, Chief Executive June 24, 1998
- ----------------------------- Officer and President
Mark Beychok (Principal Executive)
/s/ Jack B. Spencer Chief Operating Officer/ June 24, 1998
- ----------------------------- Chief Financial Officer
Jack B. Spencer (Principal Accounting
and Financial Officer)
/s/ Donald Wohl Director June 24, 1998
- -----------------------------
Donald Wohl
/s/ Benjamin Tabatchnick Director June 24, 1998
- -----------------------------
Benjamin Tabatchnick
/s/ Paul G. Cowen Director June 24, 1998
- -----------------------------
Paul G. Cowen
</TABLE>
F-50
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF FRANK J. HARITON]
June 24, 1998
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Re: Vitafort International Corporation (the "Company")
Registration Statements on Form SB-2 Number 333-5733 and
333-32029 Relating to an aggregate of 7,319,321 shares (the "Shares")
of the Company's Common Stock, par value $.0001 per share
Gentlemen:
I have been requested by the Company, a Delaware corporation, to furnish
you with my opinion as to the matters hereinafter set forth in connection with
the above captioned Registration Statement (the "Registration Statement")
covering the 7,319,321 Shares. All of the 7,319,321 Shares will be offered by
the Selling Shareholders who acquired the shares under various agreements or
will be acquired by the Selling Shareholders upon the conversion of preferred
stock or the exercise of options.
In connection with this opinion, I have examined the Registration Statement
(as amended through the date hereof), the Certificate of Incorporation and
By-Laws of the Company, each as amended to date, copies of the records of
corporate proceedings of the Company, and copies of such other agreements,
instruments and documents as I have deemed necessary to enable me to render the
opinion hereinafter expressed.
Based upon and subject to the foregoing, I am of the opinion that all of
the 7,319,321 Shares, when sold in the manner described in the Registration
Statement, will be legally issued fully paid and non-assessable.
I render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York, the internal corporate laws of the State
of Delaware. I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption "Legal
Opinions" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Frank J. Hariton
Frank J. Hariton
<PAGE>
EXHIBIT 16.2
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
- ------------------------------------------------------
On February 5, 1997, this Company dismissed the firm of KPMG Peat Marwick,
LLP ("KPMG") as the Company's independent auditors, effective immediately. The
Company then selected BDO Seidman ("BDO") to act as the Company's independent
auditors for the fiscal year ending December 31, 1996. The foregoing actions of
the Company were ratified by the Board of Directors.
The reports of KPMG on the Company's financial statements for the years
ended December 31, 1994 and December 31, 1995 did not contain an adverse opinion
or a disclaimer of opinion, nor were they qualified or modified as to
uncertainty, audit scope or accounting principles, except that the report for
the year ended December 31, 1994 contained a "going concern" explanatory
paragraph.
During the two years ended December 31, 1995, and during the subsequent
period from January 1, 1996 through February 1997, there were no
"Disagreements" (as such term is defined under the Federal Securities laws) with
KPMG on any matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure, which Disagreements, if not resolved
to the satisfaction of KPMG, would have caused that firm to make reference to
the subject matter of the Disagreements in connection with their report.
During the two years ended December 31, 1995, and during the period from
January 1, 1996 through February 5, 1997, the Company was not (i) advised by
KPMG that the Company did not have internal controls necessary to develop
reliable financial statements; (ii) advised by KPMG that it was no longer able
to rely on management's representations or that it was unwilling to be
associated with financial statements prepared by management; (iii) advised by
KPMG of a need to expand the scope of its audit; or (iv) advised by KPMG that
information had come to its attention that materially impacted the fairness or
reliability of any audit report or financial statement issued or to be issued,
or caused them to be unwilling to rely on management's representations or be
associated with the Company's financial statements (collectively, "Reportable
Events").
During the year ended December 31, 1995, and the period from January 1,
1996 to January 31, 1997, neither the Company, nor anyone on its behalf,
consulted BDO on (i) the application of accounting principles to a specified
transaction, either completed or proposed; (ii) the type of audit opinion that
might be rendered on the Company's financial statements; or (iii) any matter
that was either the subject of Disagreement or a Reportable Event. A letter from
KPMG attached as Exhibit d.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
- ------------------------------------------
(a) Letter from KPMG as of February 5, 1997. None
(b) Financial Statements. None
(c) Pro Forma Financial Information. None
(d) Letter from KPMG dated February 6, 1997.
<PAGE>
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
---------------------------------------------------
Vitafort International Corporation
Los Angeles, California
We hereby consent to the use in the Prospectus constituting a part of the
Registration Statement on Form SB-2/A3 of our report dated March 30, 1998,
relating to the audit of the consolidated financial statements of Vitafort
International Corporation for the year ended December 31, 1997, which are
contained in that Prospectus. Our report contains an explanatory paragraph
regarding the Company's ability to continue as a going concern.
We consent to the reference to us under the caption "Experts" in the Prospectus.
BDO Seidman, LLP
Los Angeles, California
June 24, 1998
