UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
REPORT ON FORM 10-KSB
(Mark one)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934 for the year ended December 31, 2007.
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 for the transition period from _____ to _________.
Commission File No. 000-50508
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NUVIM(R), INC.
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(Name of Small Business Issuer in its Charter)
Delaware 13-4083851
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(State of Incorporation) (I.R.S. Employer Identification Number)
12 North State Route 17 07652
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(Address of Principal Executive Offices) (Zip Code)
201.556.1010
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(Issuer's Telephone Number)
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.0001
par value per share.
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days: Yes /X/ No //
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation SB is not contained herein and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10SKB or any other
amendment to this Form 10SKB. /X/
The issuer's revenues for its most recent fiscal year were $1,137,285.
The aggregate market value of the voting stock held by non-affiliates of the
issuer on March 24, 2008, based upon the $0.20 per share average bid and asked
prices of such stock on that date, was $2,463,837, based upon 12,319,187 shares
held by non-affiliates of the issuer.
Check whether the issuer has filled all documents and reports required to be
filed by section 12, 13, or 15(d) of the Exchange Act after distribution of
securities under a plan confirmed by a court. Yes / / No / /
The total number of issuer's shares of common stock outstanding held by
affiliates and non- affiliates as of March 24, 2008 was 14,950,782.
Documents Incorporated by Reference: Items 9, 10, 11, 12 and 14 are incorporated
from the Information Statement included in Schedule 14C to be filed within 120
days of the end of the fiscal year. See also Item 13, Exhibits.
FORWARD-LOOKING STATEMENTS
Statements that are not historical facts, including statements about our
prospects and strategies and our expectations about growth contained in this
report are "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. These forward-looking statements represent our present-
expectations or beliefs concerning future events. We caution that such forward
looking statements involve known and unknown risks, uncertainties and other
factors which may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among other things, the uncertainty as to our future profitability; the
uncertainty as to whether our new business model can be implemented
successfully; the accuracy of our performance projections; and our ability to
obtain financing on acceptable terms to finance our operations until
profitability.
PART I
ITEM 1. DESCRIPTION OF THE BUSINESS
INTRODUCTION
We produce, market, and distribute NuVim(R) beverage dietary supplements in
chilled and shelf stable ready-to-drink beverages and powder mixes. NuVim
utilizes the micronutrient NutraFlora(R), minerals, vitamins and whey protein to
provide important health benefits to its consumers. Whey protein, NuVim(R)'s
largest ingredient, other than water, enhances physical performance, enhances
cardiovascular health, and promotes well being. NutraFlora(R), a prebiotic
fiber is uniquely capable of promoting health by supporting the growth of
beneficial (probiotic) bacteria which in turn provide health benefits such as an
enhanced immune system and improved calcium and mineral absorption for better
bone health. Studies also show that NutraFlora(R) helps improves digestive
functions, contributes to a healthy cholesterol, and metabolism. In addition
NuVim contains 100% of the recommended daily requirement of vitamin C, E, B12,
and Zinc and 30% of the requirement for vitamin A. NuVim products contain no
fat, cholesterol, lactose, caffeine, artificial flavors or high fructose corn
syrup. As we move forward each year, we try to discover additional ingredients
that can deliver health benefits and not compromise the NuVim great taste to
help us make NuVim the best thing you can drink.
During the third quarter, we began production of a shelf stable version of
our beverages in the same flavors as the chilled versions. Offered in single
serve 12 ounce bottles, distribution is targeted to convenience stores, K
through 12 school systems, colleges, and hospitals. NuVim(R)'s breakthrough is
the result of three years work to develop a shelf stable product which
duplicates the great taste of the refrigerated products and brings the consumer
the same wonderful health benefits.
As the products are introduced to the schools and hospitals it is expected
that they will be met with high acceptance as a contribution to curbing obesity
and diabetes, conditions that have reached epidemic proportions.
The US has over 5,500 hospitals with 5 million employees and 700,000
physicians as well as 41 million students ages 5 through 14 and over 35 million
students in high schools and colleges. These institutions are the initial
targets on which NuVim(R) will focus its network of commissioned sales brokers.
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We focus on developing the NuVim(R) brand through a mix of advertising and
promotional programs that build consumer awareness, trial and repeat purchases.
The marketing consists of television advertising newspaper
advertising/advertorials, product sampling, coupon distribution, promotional
price discounts, and a newly formed consumer NuVim(R) e-mail health newsletter
that is distributed to consumers throughout the US every three weeks.
NutraFlora(R) through their public relations firm is also developing and airing
news segments that include NuVim(R)'s health benefits. These marketing
expenditures are essential to build the NuVim(R) brand. We continue to test
various ways to find the most cost efficient means to use our marketing funds to
increase consumer awareness, trial and repeat purchases. We believe that these
advertising and promotional activities are critical to the long term growth of
our business and expect to continue these programs in the future.
We have distributed our refrigerated beverages since the year 2000 and are
in approximately 1,900 Supermarkets in the Eastern United States. In 2002
company revenues were $3.5 million. However, we eliminated most advertising and
marketing support for our product in the second half of 2002 due to a lack of
funding. We recapitalized our company in September 2005 through the conversion
of approximately $7.7 million of debt into common stock and an initial public
offering of our common stock and in essence restarted the company. Since that
time we have concentrated our limited financial resources on developing and
supporting distribution opportunities that we believe will provide the greatest
profitable sales expansion potential. We continue to sell to high potential
retailers like Wal-Mart, and, regional supermarket chains and other avenues of
high volume and profitable business like the military commissaries, military
troop feeding, schools, colleges and hospital groups. We do not expect that all
of these tests will culminate in success, but will pursue each one in the best
efficient manner to determine their viability. Additional funds raised in the
first months of 2008 will help achieve these goals.
We also developed a powder version of our product to be sold through direct
distribution such as the internet as well as retail outlets. Sales of the
product to date have not been material. We conducted a test program selling the
powder in GNC stores in the Tampa Bay area. Results showed poor execution by
the GNC retailer both the company owned and franchise stores and therefore the
test was discontinued.
We have launched an equity funded print news media campaign to educate
consumers about the benefits of NuVim(R) and create market awareness for our
product. The media program which began in January 2006 continued through the
fourth quarter of 2007.
We have produced a 30 second television commercial for the refrigerated
products, a 60 second television commercial for the powder product and a 5
minute educational video for the product and will air these commercials
throughout 2007 through Platinum Television Group headquartered in Deerfield
Beach Florida. The commercials run every week in selected markets on tightly
targeted television programs. Platinum Television airs these commercials as
part our 2005 stock deal and our on going relationship with them. We have a
commitment from PTG to air approximately 1,100 of these commercials during 2008.
During 2007 we continued to have had limited funding to support product
sampling and advertising programs, which we believe are critical to maintain and
increase sales of our products. Therefore, we have focused our spending on
promotions in accounts that we believe
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will offer the greatest potential for sales growth and expansion opportunities
until we are able to raise funding for additional marketing programs.
Our focus is to push forward in eight areas:
o Increase the sales per store in existing Wal-Mart supercenters.
o Increase the number of Wal-Mart distribution centers and therefore the
stores serviced by the new distribution centers stocking the NuVim(R) 64
ounce size.
o Increase the business with the current profitable supermarket chain store
groups and eliminate accounts that are unprofitable longer term.
o Successfully test in 65 authorized military commissaries with the goal of
getting distribution of the 64 ounce product in all 200 commissaries.
o Work with the Department of Defense to develop a program for troop feeding,
veterans hospitals etc.
o Introduce our new shelf stable 12 ounce beverages in three varieties to the
K through 12 school systems, colleges and universities, hospitals, health
clubs, and convenience stores.
o Sell the shelf stable 12 ounce to the NuVim web-site store at a delivered
price of approximately $2.75 per bottle (currently selling at
www.nuvim.com)
o Increase sales of the powder mixes through the Company web-site, nutritonal
supplement retail chains and home shopping networks.
o Gain access to the food service markets with the shelf stable products
through beer distributors and the independent non-alcoholic distributors.
o Open the export market to Asia and Mexico with the 12 ounce shelf stable
products
We continue to talk with other private beverage companies that provide
synergy for a possible merger opportunity. We have reviewed several potential
candidates in 2007.
We have produced a 30 second television commercial for the refrigerated
products, a 60 second television commercial for the powder product and a 5
minute powder infomercial for the product and plan to air these commercials in
2008 in selected programs like Eye on America, The Health Forum, The Competitive
Edge and Today's Family. The 30 second commercials are aired monthly and will
continue throughout the year 1,100 times. Eye on America will also run a 5
minute segment featuring NuVim. The segment will air on CNN Headline news and
Region News Networks beginning in the second quarter. Exclusive interviews with
nutrition experts Ruth Carey R.D. LD and Coni Francis Ph.D. will discuss the
lifetime benefits of drinking NuVim.
In late 2003 we began a test program with a single Wal-Mart supercenter We
are now in distribution in approximately 300 Wal-Mart supercenters in North
Carolina, South Carolina, Florida, Alabama, Georgia and a couple of stores in
Mississippi
Industry Background
NuVim(R), as a dietary supplement in beverage form, is considered part of
the "functional foods" category of the nutrition industry. Functional foods
are defined as foods and beverages that promise health benefits beyond their
inherent nutritional value. The largest segment of the functional foods category
is beverages according to Business Communications Company, Inc. ("BCC").
Functional beverages include a variety of drinks, such as sports drinks,
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energy drinks, enhanced fruit drinks, soy beverages, ready-to-drink tea and
bottled water.
The functional beverage market in the United States has developed beyond
being a niche category of drinks meant for better health and well-being. The
wide variety of functional beverages makes available options that can appeal to
many types of consumers who have become taste- and ingredient-conscious as well
as more sophisticated about their overall food consumption. In its 2004 report
on the United States functional beverages market, Frost & Sullivan cites the
following trends in the functional beverages market:
o physical fitness and mental well-being are the core needs driving the
functional beverage industry;
o the variety of functional beverages has grown to appeal to almost all
demographics of consumers;
o the growing ethnic population in the United States influences
beverage consumption patterns with their use of novel ingredients; and
o while still a small segment of the competitive and already crowded beverage
industry, functional beverages have splintered into many subcategories
with their own consumer target markets.
BCC estimates that the functional beverage segment of the industry will
grow from approximately $8.7 billion in 2002 to approximately $11.5 billion in
2007, despite a decline in overall beverage industry growth rate. BCC estimates
that the chilled juice market will increase from approximately $3.0 billion to
approximately $4.2 billion from 2002 to 2007 and that sports drinks will
increase from approximately $2.0 billion in 2002 to approximately $2.6 billion
in 2007.
According to "New Nutrition Business," a journal for healthy eating,
functional foods, and nutraceuticals, in recent years there has been a trend
toward increased consumption of dietary supplements, as well as foods and
beverages that assist the human body in preventing and controlling certain
diseases. We believe that the growing demand and awareness for functional
beverages will increase consumer acceptance of dietary supplements and enlarge
this category's share of the total beverage market.
We believe growth in the functional foods market is driven by the following
trends:
o increasing medical acceptance and recommendation of supplements, vitamins
and health foods;
o increasing consumer desire to avoid prescription drugs and seek non-medical
treatment options;
o growing number of consumers seeking health benefits in food and beverages;
o growing number of consumers seeking to avoid certain unhealthy attributes
in foods and beverages;
o growing scientific interest in the problems of inflammation and a
compromised immune system; and
o better nutritional educational practices being taught at all levels in the
school system.
Many of these trends are a result of the fact that the U.S. population over
35 years of age is growing 20% faster than the overall population. Therefore,
these issues are of concern to an increasing proportion of the population.
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Our Strategy
Our objective is to become a leading provider of good-tasting,
nutritional beverages and beverage products designed to promote health using the
best technologies that become available. The elements of our business strategy
include the following:
o Increasing brand awareness, trial and repeat purchases of the NuVim(R)
products through brand building activities including sampling,
advertising, promotion and other marketing activities.
o Expanding sales for our existing product line in our current markets.
o Introducing new products into our current markets including the NuVim(R)
shelf stable single serve and the powder version.
o Expanding the Wal-Mart authorized number of stores and distribution
centers
o Gaining distribution in the 200 military commissaries
o Gaining distribution to the veterans hospitals and troop feeding
through a Department of Defense contract.
o Expanding our distribution channels beyond the current concentration in
supermarkets, to club warehouses, convenience stores, schools, business
cafeterias, drug stores, fast food outlets and other locations using the
12 ounce size, 16-ounce plastic bottle single-serving size.
o Expand the powder version through e-commerce, retail outlets and fund
raising organizations.
o Build the brand, increase revenues and achieve profitability in order to
position NuVim(R) as a possible joint venture or merger partner.
o NuVim(R) is also a possible acquisition candidate for one of the 13
multi-national food and beverage companies that might seek to add
healthy product choices to their product offerings.
Our Products
We have developed NuVim(R) beverages to provide consumers with good
-tasting beverages that help strengthen the immune system, support muscle
flexibility, promote athletic performance, increase mineral and vitamin
absorption, especially calcium, and improve digestion. All of our refrigerated
and shelf stable products contain the proprietary, patented and exclusive
micronutrient NutraFlora(R) and a level of whey protein that helps keep a body
healthy.
Current Products
Ready to Drink Beverages
Refrigerated
This product line consists of natural, not artificially, fruit-flavored,
refrigerated dietary supplement beverages available in three flavors: Strawberry
Vanilla, Orange Tangerine and Fruit Symphony. The 64-ounce cartons are
currently is sold in the refrigerated juice section of major supermarkets. We
also sell single-serving, 16-ounce bottles, which are available in Strawberry
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Vanilla and Orange Tangerine flavors. This smaller size in plastic bottles is
currently marketed primarily to small grocery stores, some major supermarket
chains and delicatessens.
NuVim has been formulated with whey protein, minerals and vitamins and
NutraFlora(R) to achieve its benefit of, enhanced immunity, increased vitamin
and mineral absorption, improved digestion and joint health. Whey protein,
NuVim(R)'s largest ingredient, other than water, has been credited with
increased physical performance, building and repairing muscle tissue, and
enhanced cardiovascular health. NutraFlora has been clinically tested to ,
promoting wound healing, increased mineral and vitamin absorption especially
calcium, aiding in digestion, and strengthening immune defense. NutraFlora(R)
is uniquely capable of promoting health by supporting the growth of beneficial
(probiotic) bacteria which in turn provide health benefits such as improved
calcium and mineral absorption for better bone health and a strong immune
system. Almost 200 studies also show that NutraFlora(R) helps improve digestive
functions and bone and joint health and contributes to a healthy cholesterol
metabolism. The NuVim has no hi-fructose corn syrup, no caffeine, no lactose, no
artificial flavors no fat or cholesterol and only 45 calories per 8 ounce
serving.
In addition to containing the prebiotic micronutrient NutraFlora(R),
NuVim(R) refrigerated beverages are also fortified with vitamins and minerals.
An eight-ounce serving offers 100% of the minimum daily requirement of Vitamins
E, C, B-12, and zinc, smaller portions of Vitamin A, protein, and all nine
essential amino acids. The beverage is readily digestible, is virtually
lactose-free and contains no fat, cholesterol, or caffeine. An eight-ounce
serving contains 45 calories, 6 grams of sugar and 9 grams of carbohydrates.
The 64-ounce size of NuVim(R) is typically priced from $2.78 to $3.99,
depending on the supermarket. This is approximately the same price or lower
than the everyday price of a 64-ounce carton of a nationally branded orange
juice. The 16-ounce bottle is typically priced from approximately $1.29 to
$1.59.
Shelf Stable
During 2007 we developed a shelf stable version of all three NuVim flavors.
This product, packaged in 12 ounce, single serve bottles, does not require
refrigeration during the distribution and storage at the end user level. This
opens new chains of distribution, including over 1,500 local distributors of
beer, soda, and general merchandise to smaller supermarkets, convenience stores,
other outlets not served by refrigerated distributors. Our distribution
strategy is to align NuVim with the national or local beer distributors who will
be seeking new non-alcoholic beverages to increase overall sales. The shelf
stable products can now be exported due to the ease of shipping products that do
not need refrigeration during shipping and storage.
The shelf stable beverage provides all the health and nutritional benefits
of the refrigerated product.
Distribution agreements have been presented to several beer distributors.
NuVim(R) Powder
In January 2006 we introduced NuVim(R) powdered supplements to be added to
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beverages, cereals or yogurt. It is available in three flavors, Vanilla,
Chocolate, and Strawberry. NuVim(R) currently provides the SMBI micronutrients,
vitamins and minerals as our ready to drink beverages did prior to the
reformulation. It is sold in 30 serving boxes and is currently available on our
online store for $49.95 per box, with discounts for larger quantities. The
powder form allows us to market our product on a nationwide basis without the
distribution costs associated with the refrigerated ready to drink line. Sales
to date have not been material.
In March, 2007, NuVim entered into an agreement with General Nutrition
Company ("GNC") to sell NuVim(R) in their stores on a test in the Tampa, Florida
market. NuVim(R) supported the initial test stores with 60 second television
advertising tagging the commercials that NuVim(R) is now available at GNC. In
addition to the television advertising, NuVim(R) will provide in-store programs
that communicate to consumers the immune and bone health benefits NuVim(R)
provides. Results showed poor execution by the GNC retailer both the company
owned and franchise stores and therefore the test was discontinued.
NuVim(R) powder continues to contain its other two proprietary
micronutrients, MunePro(R) and AccuFlex(R) and will so do until existing stocks
are exhausted.
Sales and Marketing
We target consumers seeking specific health benefits in foods or beverages,
people taking vitamins or other supplements, healthy, active people and weight
conscious consumers. The health profile of our consumers includes people with
health concerns, people trying to boost their immune capacity and people with
restrictive diets, such as diabetics or lactose-intolerant consumers.
Approximately 95% of our current sales are to refrigerated supermarket
warehouses that then deliver our product and other brands of refrigerated
products to individual supermarkets. Some of these supermarket warehouses are
owned by the supermarket chains that stock our product, while other warehouses
that we sell to have contracts with a supermarket chain to warehouse and then
deliver refrigerated products to their stores. For the year ended December 31,
2007, five supermarket customers of the 12 in total contributed 5% to 10% of our
business with Wal-Mart being our largest customer. We stopped shipping several
customer to improve the overall profitability of the company.
Dick Clark was our public spokesperson until 2005 and has appeared in past
NuVim(R) television and radio commercials, point of sale materials and on our
website. Because Dick Clark suffered a stroke and has not completely recovered,
we used him in a limited way in 2006 and do not anticipate that we will be using
him in advertising or promotion in 2007. We have signed actress and model
Ashleigh Howard as our new spokesperson. We have produced and aired three
television spots with Ms. Howard. In the first quarter of 2008 we have signed a
sponsorship agreement with Allison Hanna Williams to represent NuVim on the
Ladies Professional Golf Association tour. We also have engaged nutrition
expert Ruth Carey R.D., L.D. to assist us with the school, college and hospital
dietitians explaining the values of drinking NuVim everyday.
Beginning in December 2005 and continuing into 2007, we began a print media
campaign through News USA. The program creates and distributes a series of news
articles addressing a wide range of consumer health concerns for which NuVim(R)
is beneficial. Topics include
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staying heart healthy, ways to combat fatigue, why the immune system is key to
good health, and the right way to maintain sound nutrition when dieting. This
campaign is designed to build brand awareness and educate the consumer about
NuVim(R)'s benefits in an informational and credible format. The program was
contractually fulfilled in December of 2007.
Distribution
We first introduced NuVim(R) refrigerated beverages in the New York, New
Jersey and Connecticut metropolitan area during the second quarter of 2000. We
then expanded the distribution of our products into the Philadelphia, Baltimore,
Washington, D.C., Harrisburg, Scranton, Wilkes-Barre and the State of Delaware
marketing areas during the first quarter of 2001. In 2002 we further expanded
into Virginia, Pittsburgh, Cleveland and upstate New York. As of December 31,
2006, our refrigerated beverages are available in approximately 2,000
supermarkets in all or part of 13 states (New York, New Jersey, Connecticut,
Maryland, Pennsylvania, Virginia, Ohio, Florida, Alabama, Georgia, and North and
South Carolina) and the District of Columbia. These accounts are serviced by a
network of three food brokers. The brokers present the promotional programs to
the supermarket chain account headquarter buyers and the brokers, and keep them
informed of the NuVim brand building activities. Each broker group also have a
retail force that call on each individual supermarket to maintain product
rotation, correct pricing and maintain or improve shelf location and the amount
of space allocated to the NuVim(R) products.
Supply, Manufacturing and Order Processing
Our refrigerated products are now manufactured solely at Mountainside Farms
in Roxbury, New York, using whey protein concentrate, NutraFlora(R) supplied by
GTC Nutrition, and a blend of customized flavors, as well as other ingredients
purchased from major domestic and international companies. We provide annual
contract purchase orders and maintain inventories of select ingredients and
supplies unique to our process; these annual contracts result in more favorable
prices and better service. Mountainside Farms purchases selected ingredients
and stores them for us at their plant. We practice just in time inventory
methods to provide maximum beneficial cash flow. Our refrigerated nutritional
beverage is then packaged in 64-ounce juice cartons and 16-ounce plastic single
-serving bottles. NuVim(R) beverages have an 83-day shelf-life from the date of
production. This compares favorably with fresh juice, juice made or not made
from concentrate, and pasteurized milk which have a shelf life of between 14 to
39 days. We expect that the processing, ingredient, storage, and distribution
costs for the reformulated product at Mountainside Farms will be improved as we
move to higher volumes.
Mountainside Farms will also store the finished product until shipment to
our customers. Mountainside Farms' flexible processing schedule enables us to
more closely schedule production to our customers needs, thereby enhancing cash
flow.
If in the future Mountainside cannot meet our needs, we believe there are
numerous qualified dairies throughout the United States that have sufficient
capacity to meet our needs.
NuVim(R) beverages are produced under a strict quality assurance program.
The product formulation and process steps for the production of NuVim(R)
products are documented in the NuVim(R), Inc. Quality Manual. This manual
contains production formula and process
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instructions, as well as quality assurance testing required on a daily, batch
basis, including, without limitation, daily microbiological testing. The HACCP
(Hazard Analysis Critical Control Point), which is in place at Mountainside
Farms and is a requirement for all dairy operations in the United States, will
be implemented at any new production site.
Both production strategies allow us to operate without investing in plant
and production equipment thereby keeping our fixed capital cost for
manufacturing as well as warehousing and freight at virtually zero.
We use three food broker organizations to obtain product orders from our
major supermarket accounts which they send to us for fulfillment. These broker
organizations also provide retail coverage in the supermarkets to insure that
our products are stocked properly, priced correctly and rotated as needed. Each
broker organization is paid on a commission basis for cases sold in their
territory.
Upon receiving an order, our products are shipped directly from the
Mountainside facility to customer warehouses, enabling "just in time" inventory
levels for our finished products. Customers typically receive the product with a
minimum of 60 days of shelf life. We control inventory management, production
and invoicing.
Patents and Trademarks
NuVim(R) was awarded a manufacturing process patent for milk protein
concentrate beverages; the patent expires in March 2021.
We own the NuVim(R), MunePro(R), AccuFlex(R), MuneFlex(R), and Fruit
Symphony(R) trademarks.
NuVim also owns the manufacturing process patent.
We are responsible for maintenance of our trademarks and for protecting
those trademarks against infringement.
Competition
In a broad sense, all beverages are competitive with all other beverages
including our dietary supplement beverages. When consumers buy NuVim(R), they
most likely are not purchasing some alternative beverage choice, which could be
any beverage, from bottled water to carbonated soda to milk or juice.
Competition in the nutritional beverages market, in particular, which includes
all of our existing and currently planned products, is intense, always growing
and evolving. The industry trend has moved from small start-up companies to
industry participants that are large beverage companies or food conglomerates.
These companies often have better cost control, product promotion and
distribution networks than we are able to generate.
Competition is based primarily on product benefits, price, quality,
customer satisfaction and marketing support. Our competition includes national,
regional and local producers and distributors. Most of our competitors have
significantly greater financial, managerial and technical resources than we do,
which may put us at a competitive disadvantage. For instance,
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channels of distribution for our products often require the expenditure of
significant and ongoing capital, which may put us at a disadvantage to better
capitalized competition.
We believe that our current products are best positioned as a nutritional
beverage and placed in supermarkets or other retail outlets in the refrigerated
juice section. Competition is particularly intense among products in these
nutritional beverage market segments. We believe our direct beverage
competition in this market segment includes national, regional and local
beverage manufacturers. We compete within the refrigerated fruit drink category,
which includes national and regional brands such as Tropicana (owned by PepsiCo,
Inc.), Minute Maid (owned by The Coca-Cola Company) and Florida's Natural (a
division of Citrus World, Inc.). In addition, a number of major supermarkets and
other retail outlets market their own brand of fresh juices that compete with
our products. Significant competitive pressure from these or other companies
could negatively impact our sales and results of operations. In many
supermarkets and in Wal-Mart supercenters NuVim(R) is placed on the refrigerated
juice shelf between Minute Maid and Tropicana products
NuVim(R) dietary supplement beverages are the only beverages containing
NutraFlora(R) sold in the United States marketed specifically for the dual
benefits of "Enhanced Immunity and Joint Health". Other companies sell milk and
whey protein concentrate or products containing milk or whey protein
concentrate, but they do not support the growth of beneficial (probiotic)
bacteria which in turn provide health NuVim(R)'s health benefits. Studies also
show that NutraFlora(R) helps improve digestive functions and bone health an in
the NuVim(R) products. Therefore, we believe our products provide health
benefits to consumers that are not available in other products that contain
milk-derived antibodies. We believe that NuVim(R) is the only beverage product
on the market using NutraFlora(R) to support the growth of beneficial
(probiotic) bacteria.
Although we have an exclusive licensing agreement with GTC Nutrition for
2008 for ready to drink beverages and powder products for reconstitution into
beverages when marketed specifically for the dual benefits of "Enhanced Immunity
and Joint Health", and are aware of no other beverage brands that are positioned
as dietary supplements with claims promoting healthy joints and immune
enhancement, it is possible that another larger, established company might enter
the dietary supplement market and offer a product similar to ours with
comparable benefits. Such a potential competitor may have a longer operating
history and substantially greater financial, technical support and other assets
and resources and may be able to respond more quickly to new or changing
business situations. If such a company were to enter the segment of the beverage
market we currently occupy, this could have a material adverse effect on our
business and prospects.
Government Regulation
The FDA has primary regulatory authority over dietary supplements. In
1976, the FDA's ability to regulate the composition of dietary supplements was
restricted in several material respects by the Proxmire Amendment to the Federal
Food, Drug and Cosmetic Act. Under this Amendment, the FDA is precluded from
establishing maximum limits on the potency of vitamins, minerals and other
dietary supplements, from limiting the combination or number of any vitamins,
minerals or other food ingredients in dietary supplements and from classifying a
vitamin, mineral or combination of vitamins and minerals, or dietary supplements
as drugs solely because of their potency. However, the Proxmire Amendment did
not affect the FDA's authority
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to determine that a vitamin, mineral or other dietary supplement is a new drug
on the basis of disease claims made in the product's labeling. This
determination would require deletion of the disease claims or submission and FDA
approval of a new drug application, which entails costly and time-consuming
clinical studies over successive phases.
In October 1994, the Dietary Supplement Health and Education Act ("DSHEA")
was enacted, which introduced a new statutory framework governing the
composition and labeling of dietary supplements. Under this law, dietary
supplements are permitted to make "statements of nutritional support" without
FDA pre-approval. These statements may describe how particular dietary
ingredients affect the structure, function or general well-being of the body, or
the mechanism of action by which a dietary ingredient may affect body structure,
function or well-being, but may not state that a dietary supplement will
diagnose, mitigate, treat, cure, or prevent a disease. Nor can a claim be made
that would be interpreted as a health claim. A company making a statement of
nutritional support must possess adequate substantiating scientific evidence for
the statement, disclose on the label that the FDA has not reviewed the statement
and that the product is not intended to mitigate, treat, cure, or prevent
disease, and notify the FDA of the statement within 30 days after its initial
use. Although the FDA has been notified of the statements of nutritional support
made for our products, there can be no assurance that, at some time in the
future, the FDA will not determine that a given statement of nutritional support
which we make is a disease claim rather than an acceptable nutritional support
statement relating to body function or structure. This determination would
require deletion of the disease claim or, if it is to be used at all, our
submission and the approval by the FDA of a new drug application (which would
entail costly and time-consuming clinical studies) or revision to a health
claim, which would, as noted above, require demonstration of significant
scientific agreement and prior FDA approval. An expert panel determined that
NutrFlora(R) is considered Generally Recognized As Safe and therefore they
received a Certificate of Generally Recognized As Safe Approval.
We believe that we currently meet the requirements of DSHEA. Our
structure/function claims are that the product helps build a strong total immune
system, supports muscle flexibility, and promotes sturdy joints. We believe that
we are currently compliant with all material laws and that we maintain all
material permits and licenses relating to our operation based on the current
food labeling requirements under DSHEA.
Employees
As of December 31, 2007 we had five employees:. We out source auditing,
accounting, investor relations, and public relations. Our sales organization
consists of commission sales brokers including our military broker. Our
corporate secretary and general counsel is a part-time consultant. We also use
part time consultants to assist in operations, consumer call center, web-site
changes. Legal negotiations, Federal Trade Commission advice, distributor sales
arrangements through beer distributors, top to top meeting arrangements with
school systems, colleges and hospitals are arranged by members of our advisory
committee. Separately we have engaged a nutrition expert.
12
Risk Factors Related To Our Business
An investment in our securities involves a high degree of risk. You should
carefully consider the following risks, as well as the other information in this
report, before purchasing our securities. If any of the possibilities described
as risks below actually occur, our business, operating results, financial
condition, and liquidity would likely suffer. In that event, the trading price
of our securities could fall, causing you to lose some or all of your investment
in our company. The following is a description of what we consider our key
challenges and material risks.
We Will Need to Raise Additional Capital.
We are currently operating at a loss and expect our expenses to continue to
increase as we expand our product line as well as our geographic presence
throughout the United States. To date, we have relied primarily on financing
transactions to fund operations. We could face unforeseen costs such as an
increase in transportation costs resulting from the recent significant increases
in the cost of fuel; or our revenues could fall short of our projections because
retail outlets discontinue ordering our products or for reasons unrelated to our
products, such as a revenue decline due to changes in consumer habits and
preferences or we may achieve lower margins than planned on our products due to
cost increases or competitive pricing pressure.
During 2007, NuVim raised a net total of about $684,000 from European
Institutional and United States accredited investors and obtained an additional
$109,600 of services in exchange for common stock.
We will still continue to need additional funds to continue our operations.
New sources of capital may not be available to us when we need it or may be
available only on terms we would find unacceptable. If such capital is not
available on satisfactory terms, or is not available at all, we will be unable
to continue to fully develop our business and our operations and our financial
condition will be materially and adversely affected. Such a lack of additional
funding could force us to cease operations altogether. Debt financing, if
obtained, could increase our expenses and would be required to be repaid
regardless of operating results. In addition, if we raise additional funds
through the issuance of equity, equity-related or convertible debt securities,
these securities may have rights, preferences or privileges senior to those of
the rights of our ordinary shares and our shareholders may experience additional
dilution. Any such developments can adversely affect your investment in our
company, harm our financial and operating results, and cause our share price to
decline.
Our Auditors Have Substantial Doubt About Our Ability To Continue As A Going
Concern.
In their report in connection with our 2007 and 2006 financial statements,
both our auditors included an explanatory paragraph stating that, because we
have incurred net losses and have a net capital deficiency for the years ended
December 31, 2006 and 2007, there is substantial doubt about our ability to
continue as a going concern. The extension of all debt to a payable date of
January 15, 2009 does alleviate the immediate debt concerns. Our continued
existence will depend in large part upon our ability to successfully secure
additional financing to fund future operations. Our initial public offering was
not sufficient to completely alleviate these concerns; the proceeds have been
adequate to fund operations to date, but we will need to raise additional
funding to continue operations. If we are not able to achieve positive cash flow
from operations or to secure additional financing as needed, we will continue to
experience the risk that we will not be able to continue as a going concern.
13
Our Limited Operating History Makes Evaluation Of Our Business Difficult.
We have a limited operating history and have encountered, and expect to
continue to encounter, many of the difficulties and uncertainties often faced by
early stage companies. We commenced our business operations in 1999 and began
marketing our initial products in 2000 on a limited basis. Accordingly, we have
only a limited operating history with which you can evaluate our business and
prospects. An investor in our units must consider our business and prospects in
light of the risks, uncertainties and difficulties frequently encountered by
early stage companies, including limited capital, delays in product development,
possible marketing and sales obstacles and delays, inability to gain customer
acceptance or to achieve significant distribution of our products to customers
and significant competition. We cannot be certain that we will successfully
address these risks. If we are unable to address these risks, our business may
not grow, our stock price may suffer and/or we may be unable to stay in
business.
We Have A History Of Losses And We Expect To Continue To Operate At A Loss For
The Foreseeable Future.
Since our inception in 1999, we have incurred net losses in every year,
including net losses of $1,778,959 for the year ended December 31, 2006 and
$1,449,378 for the year ended December 31, 2007. We had a working capital
deficit of $675,891 at December 31, 2007 and have negative cash flows from
operations. As a result of ongoing operating losses, we also had an accumulated
deficit of $23,473,398 and a stockholders' deficit of $1,817,389 at the same
date. We expect to incur losses until at least through 2007 and may never become
profitable. We also expect that our expenses will not increase substantially
for the foreseeable future as we seek to expand our product line and sales and
distribution network, implement internal systems and infrastructure and comply
with the legal, accounting and corporate governance requirements imposed upon
public companies.
Our Continued Progress Depends Of Consumer Acceptance of the Reformulated
Beverage
In the first quarter of 2007, NuVim introduced a reformulated beverage and
began producing it at a new plant. Although the new formulation maintains the
same taste, reduces calories per serving from 70 to 45, eliminates High Fructose
Corn Syrup, as an ingredient, and introduces NutraFlora(R) an active ingredient
with more, and more recent, clinical support for its improvement of mineral
absorption, particularly the calcium and magnesium necessary for bone strength,
reinforcing the immune system, our consumers may not all continue to enjoy the
NuVim(R) beverages and new customers attracted by the reduced sugar and calories
and the improved health benefits may not replace all the old customers lost
because of the changes.
Our Business Depends On The Acceptance Of Our Products In Both Existing And New
Marketing Areas.
We intend to expand into new geographic areas and broaden our product
offerings to generate additional sales. Our refrigerated beverage products are
currently available from southern Connecticut to Miami and as far West as
Pittsburgh including such supermarket chains
14
as ShopRite, Pathmark, A&P, Gristedes, Food Emporium, Key Foods, Associated
Foods, Walbaums, Acme Giant, Giant Eagle, and Wal-Mart. Although marketing
funds have been limited, but we have been able to maintain distribution due to
our loyal consumer base who have felt the NuVim difference and continue to buy
NuVim on a regular basis. The supermarket chain accounts see NuVim as a one of
a kind product that offers the consumer a healthily choice to high sugar and
high caffeine carbonated and non- carbonated beverages. We do not know whether
the level of market acceptance we have received in our current markets for our
products will be matched or exceeded in the geographic locations we are newly
serving or in other areas of the country as we expand our distribution in the
future. We also will need to raise additional financing to support this
expansion.
We can give no assurance that we will expand into new geographic areas. It
is unlikely that we will achieve profitability in 2008, but possibly could
achieve profitability on a monthly basis toward the end of next year.
Consumers Who Try Our Products May Not Experience The Health Benefits We Claim,
Which May Cause Them To Discontinue Using Our Products.
Although there is substantial clinical evidence showing that NuVim(R)'s
ingredients produce the desired results, there have been no studies of our
specific formulation. Therefore, we currently cannot confirm that the health
benefits of our products will be evident to casual consumers of our products.
Consumers may determine that drinking 12 ounces of NuVim per day for a minimum
of 30 days requires more discipline and expense than they are willing to devote.
If consumers do not use our product in the quantity or for the duration we
recommend, they may not achieve the health benefits we claim, which may cause
them to make alternative nutritional beverage and/or dietary supplement
purchasing decisions.
Our Business May Suffer From Lack Of Diversification.
Our business is centered on nutritional beverages. The risks associated
with focusing on a limited product line are substantial. If consumers do not
accept our products or if there is a general decline in market demand for, or
any significant decrease in, the consumption of nutritional beverages, we are
not financially or operationally capable of introducing alternative products
within a short time frame. As a result, such lack of acceptance or market demand
decline could cause us to cease operations. The addition of our new shelf
stable products offers us a broader base of outlets to distribute our products
decreasing our total dependence on the refrigerated distribution network.
Expansion Of Our Business Is Dependent On Our Ability To Expand Production.
We currently manufacture our refrigerated product line at Mountainside
Farms in Roxbury, New York We are in negotiation with several companies to
manufacture the shelf stable products. Our ability to expand beyond our current
marketing areas depends on, among other things, the ability to produce our
product in commercial quantities sufficient to satisfy the increased demand.
Although our present production capacity is sufficient to meet our current and
short-term future production needs, production capacity may not be adequate to
supply future needs. If additional production capacity becomes needed, it will
be necessary to engage additional co-packers or to expand production capacity at
our present co-packer facility. If we
15
expand production at Mountainside Farms, we risk having to pay significantly
greater transportation costs to transport our products to warehouses in other
regions of the United States. Any new co-packing arrangement raises the
additional risk of higher marginal costs than we currently enjoy since we would
be required to negotiate new terms with any new co-packer. We may not be able
to pass along these higher costs to our customers. If we are unable to pass
along the higher production costs imposed by new co-packers to our customers, we
either will suffer lower gross margins and lower profitability, once achieved,
or we may be unable to expand our business as we have planned, which could
disappoint our stockholders.
Our Business Contains Risks Due To The Perishable Nature Of Our Product.
Our current refrigerated product is a perishable beverage that has a
limited shelf-life of approximately 83 days. This restricted shelf life means
that we do not have any significant finished goods inventory and our operating
results are highly dependent on our ability to accurately forecast near term
sales in order to adjust our raw materials sourcing and production needs. When
we do not accurately forecast product demand, we are either unable to meet
higher than anticipated demand or we produce excess inventory that cannot be
profitably sold. Additionally, our customers have the right to return products
that are not sold by their expiration date. Therefore, inaccurate forecasts that
either mean that we are unable meet higher than anticipated demand or that
result in excess production, or significant amounts of product returns on any of
our products that are not sold by the expiration date could cause customer
dissatisfaction, unnecessary expense and a possible decline in profitability.
Government Regulation May Adversely Affect Our Business.
Our business is subject to government regulation, principally the United
States Food and Drug Administration (the "FDA"), which regulates the processing,
formulation, packaging, labeling and advertising of dietary products, and to a
lesser extent, state governments, where state attorneys general have authority
to enforce their state consumer protection acts. Specifically, we are subject to
the Dietary Supplement and Health Education Act ("DSHEA"). Under DSHEA, dietary
supplements are permitted to make "statements of nutritional support" with
notice to the FDA, but without FDA pre-approval. The FDA does not allow claims
that a dietary product may mitigate, treat, cure or prevent disease. There can
be no assurance that at some future time the FDA will not determine that the
statement of nutritional support we make on our packaging is a prohibited claim
rather than an acceptable nutritional support statement. Such a determination by
the FDA would require deletion of the treatment, cure or prevention of disease
claim, or, if it is to be used at all, submission by our company and the
approval by the FDA of a new drug application, which would entail costly and
time-consuming clinical studies, or revision to a health claim, which would
require demonstration of substantiated scientific evidence to support such claim
and would also consume considerable management time and financial resources.
Our advertising of dietary supplement products is also subject to
regulation by the Federal Trade Commission (the "FTC") under the Federal Trade
Commission Act, which prohibits unfair or deceptive trade practices, including
false or misleading advertising. The FTC in recent years has brought a number of
actions challenging claims made by companies that suggest that their products
are dietary supplements. No assurance can be given that actions will not be
brought against us by the FTC or any other party challenging the validity of our
product advertising claims.
16
Our Business May Be Subject To Product Liability Claims Relating To Consumer Use
Of Our Products.
As a marketer of beverages that are ingested by consumers, we face an
inherent risk of exposure to product liability claims if the use of our products
results in injury or our labeling contains inadequate warnings concerning
potential side effects. With respect to product liability claims, we have
obtained a $2.0 million liability insurance policy ($2.0 million per
occurrence), which we believe is adequate for our kind of business activity. The
policy contains certain exclusions that would pertain to food products such as
the additional products exclusion for bodily injury or property damage arising
out of the manufacture, handling, distribution, sale, application or use of
certain specified products (e.g., silicone, latex, and dexfenfluramine, among
others), the intended injury and the willful and intentional acts exclusions.
There can be no assurance that such insurance will continue to be available at a
reasonable cost, or, if available, that it will be adequate to cover potential
liabilities. If we are found liable for product liability claims that exceed our
coverage or are subject to a policy exclusion, such liability could require us
to pay financial losses for which we have not budgeted and may not have adequate
resources to cover. If the uninsured losses were significantly large enough to
impact our ability to continue our then-existing level of operations, we might
experience a decline in net income and earnings per share, and our stock price
might suffer. In an effort to limit any liability, we generally obtain
contractual indemnification from parties supplying raw materials or marketing
our products. Such indemnification is limited, however, by the terms of each
related contract and, as a practical matter, by the creditworthiness of the
indemnifying party.
Despite the insurance coverage that we plan on maintaining, it is possible
that we may be sued if one or more consumers believe our products have caused
them harm. While no such claims have been made to date, the results of any such
suit could result in significant financial damages to us, as well as serious
damage to the reputation and public perception of our company, even if we are
ultimately found not to be at fault.
ITEM 2. DESCRIPTION OF PROPERTY
We currently lease approximately 1,500 square feet of office space at 12
State Route 17 North in Paramus, New Jersey under a lease that expires on March
31, 2011. The lease space is used as our executive offices, which we use for
marketing and administrative needs. Since we use off-site co-packing and
warehousing arrangements for the manufacture and distribution of our products,
we do not require extensive facilities.
ITEM 3. LEGAL PROCEEDINGS
We are not a party to any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
None in the fourth quarter 2007
17
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Common stock market price
-------------------------
Of the 14,740,782 shares of common stock outstanding as of December 31,
2007, all but approximately 3,000,000 shares can be traded on the over-the-
counter trading on the OTC Electronic Bulletin Board, which trading commenced
July 24, 2005. Of this amount, 2,631,595 shares are held by affiliates. The
following quarterly quotations for common stock transactions on the OTC Bulletin
Board reflect inter-dealer prices, without retail mark-up, markdown or
commissions and may not represent actual transactions. The company completed an
initial public offering of its common stock on June 24, 2005. The shares
initially traded only as part of a unit, under the symbol NUVMU, with each unit
consisting of one share of common stock, one "Class A" warrant to purchase
common stock, and one "Class B" warrant to purchase common stock. Each unit was
sold by the Company at a price of $1.00 per share as described in a prospectus
dated June 21, 2005. The shares of common stock, Class A warrants, and Class B
Warrants began trading separately as NUVM, NUVMW, and NUVMZ, respectively, on
July 24, 2006.
High Bid Low Bid
---------------------------------------------------------------------------
2008
First Quarter $0.27 $0.17
Second Quarter $0.23 $0.18
(Through April 10, 2008)
---------------------------------------------------------------------------
2007
First Quarter $ 0.55 $ 0.13
Second Quarter $ 0.59 $ 0.25
Third Quarter $ 0.30 $ 0.18
Fourth Quarter $ 0.35 $ 0.23
---------------------------------------------------------------------------
2006
First Quarter $ 0.73 $ 0.50
Second Quarter $ 0.53 $ 0.27
Third Quarter $ 0.40 $ 0.16
Fourth Quarter $ 0.32 $ 0.16
---------------------------------------------------------------------------
The last sale price of the Company's Common Stock on April 10, 2008, was
$0.20 as reported on the over-the-counter Electronic Bulletin Board. As of March
24, 2008, there were 181 shareholders of record of the Company's Common Stock.
The Company has been informed that approximately 300 shareholders hold their
Common Stock in nominee name.
Dividends
The Company has never paid cash dividends on its Common Stock. The Company
presently intends to retain future earnings to finance the expansion of its
business and does not
18
anticipate that any cash dividends will be paid in the foreseeable future. The
future dividend policy will depend on the Company's earnings, capital
requirements, expansion plans, financial condition and other relevant factors.
Recent Sales of Unregistered Securities
Stock Sales in the Fourth Quarter 2007 and the First Quarter 2008
Common Stock Issued for Services
--------------------------------
In October 2007, NuVim issued 30,000 shares to one of its attorneys for
negotiation services valued at $9,000. He agreed in writing to restrictions on
resale placed with the NuVim's transfer agent and the printing of a legend on
its certificate. Because of these factors, this sale was exempt from
registration under the Securities Act as not involving a public distribution
under section 4(2) and 4(6).
In November 2007, NuVim issued 70,000 shares to its new spokesperson for
services valued at $24,500. She agreed in writing to restrictions on resale
placed with the NuVim's transfer agent and the printing of a legend on its
certificate. Because of these factors, this sale was exempt from registration
under the Securities Act as not involving a public distribution under section
4(2) and 4(6).
In February 2008, NuVim issued 100,000 shares to three individuals for
investor relations services valued at $24,000. Each agreed in writing to
restrictions on resale placed with the NuVim's transfer agent and the printing
of a legend on its certificate. Because of these factors, this sale was exempt
from registration under the Securities Act as not involving a public
distribution under section 4(2) and 4(6).
During the same month, NuVim issued 70,000 shares to its nutrition
consultant valued at $16,800. She agreed in writing to restrictions on resale
placed with the NuVim's transfer agent and the printing of a legend on its
certificate. Because of these factors, this sale was exempt from registration
under the Securities Act as not involving a public distribution under section
4(2) and 4(6).
In March 2008, NuVim issued 40,000 shares to an individual for investor
relations services valued at $8,000. He agreed in writing to restrictions on
resale placed with the NuVim's transfer agent and the printing of a legend on
its certificate. Because of these factors, this sale was exempt from
registration under the Securities Act as not involving a public distribution
under section 4(2) and 4(6).
Also in March 2008, NuVim issued 100,000 and 50,000 shares respectively to
Jamal Kibria and Mark Alan Siegel for their services. Mr. Kibria works on
product production and Mr. Siegel serves as NuVim's Secretary and General
Counsel. Both have agreed not to sell their shares before 2009. In addition,
each agreed in writing to Securities Act restrictions on resale placed with the
NuVim's transfer agent and the printing of a legend on its certificate. Because
of these factors, this sale was exempt from registration under the Securities
Act as not involving a public distribution under section 4(2) and 4(6).
19
In the same month, NuVim issued 50,000 shares of common stock and a five
year warrant to purchase 25,000 shares of common stock at $0.25 per share to an
individual for services in connection with the structure of a private placement.
He agreed in writing to restrictions on resale placed with the NuVim's transfer
agent and the printing of a legend on its certificate. Because of these factors,
this sale was exempt from registration under the Securities Act as not involving
a public distribution under section 4(2) and 4(6).
In early April, NuVim issued 656,000 shares of common stock and its $20,000
promissory note to settle outstanding invoices for accounting services. The
accounting firm agreed in writing to restrictions on resale placed with the
NuVim's transfer agent and the printing of a legend on its certificate. Because
of these factors, this sale was exempt from registration under the Securities
Act as not involving a public distribution under section 4(2) and 4(6).
Sales for Cash
--------------
In March 2008, NuVim sold 294,118 shares of common stock for $0.17 per
shares and issued five year warrants to purchase 147,059 shares of common stock
at $0.25 per share to an individual. He agreed in writing to restrictions on
resale placed with the NuVim's transfer agent and the printing of a legend on
its certificate. Because of these factors, this sale was exempt from
registration under the Securities Act as not involving a public distribution
under section 4(2) and 4(6). The proceeds were used for working capital.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
We produce, market, and distribute NuVim(R) beverage dietary supplements in
Ready-to-drink and powder mix forms NuVim utilizes the micronutrient
NutraFlora(R) and whey protein to provide important health benefits to its
consumers. Whey protein, NuVim(R)'s largest ingredient, other than water,
enhances physical performance, enhances cardiovascular health, and promotes well
being. NutraFlora(R) is uniquely capable of promoting health by supporting the
growth of beneficial (probiotic) bacteria which in turn provide health benefits
such as improved calcium and mineral absorption for better bone health and a
strong immune system. Studies also show that NutrFlora(R) helps improves
digestive functions, contributes to a healthy cholesterol, and metabolism.
We focus on developing the NuVim(R) brand through a mix of advertising and
promotional programs that build consumer awareness, trial and repeat purchases.
The marketing consists of television advertising newspaper
advertising/advertorials, product sampling, coupon distribution, and promotional
price discounts. These marketing expenditures are essential to build the
NuVim(R) brand. We continue to test various ways to find the most cost
efficient means to use these marketing funds to increase consumer awareness,
trial and repeat purchases. We believe that these advertising and promotional
activities are critical to the growth of our business and expect to continue
these programs in the future.
We have distributed our refrigerated beverages since the year 2000 and are
in approximately 2,000 Supermarkets in the Eastern United States. In 2002
company revenues were $3.5 million. However, we eliminated most advertising and
marketing support for our product in the second half of 2002 due to a lack of
funding. We recapitalized our company in June 2005 through the conversion of
approximately $7.7 million of debt into common stock and an initial public
offering of our common stock. Since that time we have concentrated our limited
financial resources on developing and supporting distribution opportunities that
we believe will provide the greatest profitable sales expansion potential. We
also developed a powder version of our product to be sold through direct
distribution such as the internet as well as retail
20
outlets. Sales of the product to date have not been material. We expect that
we will sell the powder mixes in retail stores in 2007.
We have launched an equity funded print news media campaign to educate
consumers about the benefits of NuVim(R) and create market awareness for our
product. The media program which began in January 2006 and will continue for
approximately eighteen months or until the contracted amount of the newspaper
features has been completed.
We have produced a 30 second television commercial for the refrigerated
products, a 60 second television commercial for the powder product and a 5
minute educational video for the product and will air these commercials
throughout 2008 through Platinum Television Group headquartered in Deerfield
Beach Florida.
During 2006 we continued to have had limited funding to support product
sampling and advertising programs, which we believe are critical to maintain and
increase sales of our products. Therefore, we have focused our spending on
promotions in accounts that we believe will offer the greatest potential for
sales growth and expansion opportunities until we are able to raise funding for
additional marketing programs.
In late 2003 we began a test program with a single Wal-Mart supercenter. In
late 2004 the test was expanded to 43 supercenters (one Wal-Mart distribution
center) and then further expansion to 120 supercenters (two additional
distribution centers) in late 2005 that covered most of the Wal-Mart
supercenters in the State of Florida. During the 2005 expansion the number of
NuVim(R) varieties carried by the supercenters was increased from two to three.
In April 2006, we increased our distribution to the entire southeast region,
encompassing approximately 300 supercenters (seven total distribution centers)
servicing all or part of 7 states.
Unit Case Volume/Case Sales
The table set forth below discloses selected data regarding sales for the
years ended December 31, 2007 and 2006. The data is not necessarily indicative
of continuing trends.
Sales of beverages are expressed in unit case volume. A "unit case" means
a unit of measurement equal to 512 U.S. fluid ounces of finished beverage (eight
64-ounce containers). Unit case volume means the number of unit cases (or unit
case equivalents) of beverages directly or indirectly sold by us. Gross cases
sold to the customer represent the number of cases shipped to the customer prior
to any returned cases containing product that has not been sold by its
expiration date.
Twelve Months Ended December 31
2007 2006
---------------------------------------
Gross Cases Sold 61,394 70,542
Gross Sales $1,137,285 $1,292,155
Net Sales $ 795,016 $ 943,978
Gross sales are the amount invoiced to customers, while net sales deduct
from gross sales any payment or discount terms, promotional allowances, slotting
fees, warehouse damage and returned goods in accordance with the Financial
Accounting Standards Board
21
Emerging Issues Task Force Issue No. 01-09, Accounting for Consideration Given
by a Vendor to a Customer. In some accounts we pay slotting fees when our
products are initially introduced to a new account and run price feature
promotions to encourage trials of our product. As brand loyalty grows in a
market, we anticipate that we will be able to run fewer price promotions and
will not incur the one time additional slotting fees to gain new distribution.
The 61,394 cases sold represent a decrease 9,148 cases or 13% for the
twelve months ended December 31, 2007. This decrease for the year is caused by a
planned second half decrease; we stopped selling several unprofitable accounts.
In the first six months of 2007 sales were ahead of the prior year's by 13%.
Results of Operations
Results of operations for the year ended December 31, 2007 compared to the year
ended December 31, 2006
Gross Sales For the year ended December 31, 2007, gross sales were
$1,137,285 a decrease of $154,870, or 12% below gross sales of $1,292,155 for
the twelve months ended December 31, 2006. The decrease in gross sales for the
year represents not selling some non-profitable accounts
Discounts, Allowances and Promotional Payments Even though sales declined
12% for the twelve months ended December 31, 2007, promotional allowances,
returns and discounts only decreased less than 2% or $5,908 to $342,269 from the
promotional allowances and discounts of $348,177 for the year ended December 31,
2006. Because the decrease in sales was due to planned withdrawal from
unprofitable accounts, we continued to build the profitable portion of the
business through continued promotion. We record the price reductions, which are
reimbursed by us to the retailers, in accordance with Financial Accounting
Standards Board Emerging Issues Task Force, No. 01-09, Accounting for
Consideration Given by a Vendor to a Customer. We expect to continue to use
price promotions and coupon distribution selectively as a means to promote
consumer sampling and trial of our product into the foreseeable future. As the
product matures and a higher percentage of users of our product are repeat
purchasers, we expect coupon expense, relative to gross sales, to decline.
Year Ended December 31
----------------------
Increase
2007 2006 (Decrease) Percentage
-----------------------------------------------------
Discounts for timely payment $ 7,916 $ 16,930 (9,014) (53%)
Product returned after its expiration date 119,432 139,927 (20,495) (15%)
Promotional price allowances, coupons
and other incentives 210,921 190,468 20,453 11%
Slotting fees 4,000 852 3,148 369%
-----------------------------------------------------
Total Discounts, Allowances and
Promotional Payments $342,269 $348,177 (5,908) (2%)
=====================================================
Net Sales Net sales for the year ended December 31, 2007 were $795,016 a
decrease of $148,962, or 16% lower than net sales of $943,978 for the twelve
months ended December 31,
22
2006. The withdrawal from unprofitable accounts and continued promotional
expense resulted in the aggregate decline.
Cost of Sales For the twelve months ended December 31, 2007, cost of sales
was $582,101, a decrease of $120,391, or 17%, below the $702,492 spent in 2006
compared with a reduction of 13% in case sales. Cost of sales as a percentage of
gross sales decreased to 51% for the year ended December 31, 2007, compared to
54% for the twelve months ended December 31, 2006. The decrease in cost of
sales from $9.96 per case to $9.48 per case was primarily the result of lower
cost of materials as well as improvements in production and warehousing
arrangements.
Gross Profit Gross profit was $212,915 for the year ended December 31,
2007, down only 12% or $28,571 from $241,486 for the year ended December 31,
2006 compared with the 16% reduction in Net Sales. Gross profit as a percentage
of gross sales was 18.7% for the year ended December 31, 2007 the same as the
18.7% for the twelve months ended December 31, 2006.
Selling, General and Administrative Expenses Selling, general and
administrative expenses were $1,732,700 for the year ended December 31, 2007,
down 27% from $2,407,253 during the twelve months ended December 31, 2006. The
decrease of $674,553 was achieved by continued outsourcing of financial and
operations management functions without decreasing effectiveness. Changing the
sales organization to 100% commission based has continued to control
administrative costs. Controlling costs continued to be an important priority.
Loss from Operations Loss from operations was $1,519,785 for the year
ended December 31, 2007 compared to $2,165,767 for the year ended December 31,
2006. The decrease of the loss by $645,982 or almost 30% in 2007 versus
2006 is primarily due to the decreased operating expenses described above.
Interest Expense Interest expense was $93,799 for the year ended December
31, 2007; a decrease of $21,978 or 19%, from interest expense of $115,777 for
the year ended December 31, 2006. The decrease in interest expense is primarily
attributable to the retirement of indebtedness.
Net Loss before Income Tax Benefit Net loss before income tax benefit was
$1,613,584 for the year ended December 31, 2007 compared to $2,221,046 for the
year ended December 31, 2006. The $607,462 decrease in net loss was primarily
attributable to the operating cost controls and the lower interest expense
discussed above.
Income Tax Benefit The benefit received from the sale of our New Jersey
tax loss was reduced this year because our losses are lower each year, so
the benefit received from their sale is less.
Net Loss Net loss was $1,449,378 for the year ended December 31, 2007
compared to $1,778,959 for the year ended December 31, 2006. The $329,581
improvement in net loss was primarily attributable to the improved control of
operating costs and the lower interest expense discussed above off set by the
reduced income tax benefit.
23
Liquidity and Capital Resources
Our operations to date have generated significant operating losses that
have been funded through the issuance of common stock and external borrowings.
We will require additional sources of outside capital to continue our
operations.
Compensation paid in shares of common stock
We will still need to raise additional financing to pay our past due
obligations, fund operating losses and to support sales and marketing programs
to increase sales of our products. If we are not able to identify additional
sources of financing, we may not be able to continue operations beyond December
2008. We have participated in the New Jersey Economic development Authority Tax
Transfer program for the past 4 years and will again this year. The funds from
this program were received in December and amounted to approximately $175,000.
Net cash used in operating activities for the year ended December 31, 2007
was $771,141, compared to cash used in operating activities of $727,846 during
all of 2006.
A net amount of $730,483 was provided by financing activities during 2007,
compared to $470,850 provided for the year 2006. The additional cash was
primarily provided by additional common stock sales and drawing on NuVim's bank
line of credit.
As a result, the annual decrease in Cash was reduced over 80% from $214,996
to $40,658.
Application of Recent and Critical Accounting Policies and Pronouncements
Recent Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements,
and ("SFAS No. 157"), which defines fair value, establishes a framework for
measuring fair value, and expands disclosures about fair value measurements.
SFAS No. 157 will be effective for the Company beginning January 1, 2008.
Management is currently evaluating the effect SFAS No. 157 will have on the
Company's financial condition or results of operations.
In February 2007, the FASB issued FASB Statement No. 159, "The Fair Value
Option for Financial Assets and Financial Liabilities - Including an Amendment
of FASB Statement No. 115" (SFAS 159). This Statement provides companies with an
option to measure, at specified election dates, many financial instruments and
certain other items at fair value that are not currently measured at fair value.
A company that adopts SFAS 159 will report unrealized gains and losses on items
for which the fair value option has been elected in earnings at each subsequent
reporting date. This Statement also establishes presentation and disclosure
requirements designed to facilitate comparisons between entities that choose
different measurement attributes for similar types of assets and liabilities.
This Statement is effective for fiscal years beginning after November 15, 2007,
which for us is the first quarter of fiscal 2009. We do not believe that the
adoption of SFAS 159 will have a material impact on our results of operations or
financial condition.
24
Management does not believe that any recently issued, but not yet
effective, accounting standards, if currently adopted, would have a material
effect on the accompanying financial statements.
Critical Accounting Estimates
The discussion and analysis of our financial condition and results of
operations are based upon our financial statements, which have been prepared in
accordance with accounting principles generally accepted in the United States of
America. The preparation of these financial statements requires us to make
estimates and judgments that affect the reported amount of assets and
liabilities, revenues and expenses, and related disclosure on contingent assets
and liabilities at the date of our financial statements. Actual results may
differ from these estimates under different assumptions and conditions.
Critical accounting policies are defined as those that are reflective of
significant judgments, estimates and uncertainties and potentially result in
materially different results under different assumptions and conditions. For a
detailed discussion on the application of these and other accounting policies,
see Note 2 to our annual financial statements for the year ended December 31,
2007.
Placement and Promotional Allowances and Credits for Product Returns
As an inducement to our customers to promote our products in preferred
locations of their stores, we provide placement and promotional allowances to
certain customers. We also provide credits for customer coupon redemptions,
consumer price reductions, and product which has not been sold by its expiration
date. These allowances and credits are reflected as a reduction of revenue in
accordance with Emerging Issues Task Force ("EITF") No. 01-9, which requires
certain sales promotions and customer allowances previously classified as
selling, general and administrative expenses to be classified as a reduction of
sales or as cost of goods sold. Provisions for promotional allowances are
recorded upon shipment and are typically based on shipments to the retailer
during an agreed upon promotional period. We expect to offer promotional
allowances at historical levels in the near future as an incentive to our
customers. Slotting or placement fees are deducted from revenue in the period
paid. Provisions for coupon redemptions and product returned that has reached
its expiration date are based on historical trends. Information such as the
historical number of cases returned per unit shipped, product shelf life,
current sales volume, and coupons distributed during the period are used to
derive estimates of the required allowance. As we expand production and
introduce new products, we may incur increased levels of returned goods. Also,
our estimates assume we will continue as a going concern and maintain
distribution with wholesalers and supermarkets that currently carry our product.
If a supermarket or wholesaler discontinues our product, we may experience
return rates in excess of our historical trend. This could result in material
charges to future earnings for reimbursements to our customers for returned,
unsold product.
Accounts Receivable
We evaluate the collectibility of our trade accounts receivable based on a
number of factors. Accounts receivable are unsecured, non-interest bearing
obligations that are typically due from customers within 30 days of the invoice
date. However, with incentives to pay early we normally receive payment for
invoices on average of 17 days. We apply collections in accordance with
25
customer remittance advices or to the oldest outstanding invoice if no
remittance advice is presented with payment.
We estimate an allowance for doubtful accounts and revenue adjustments
based on historical trends and other criteria. Further, as accounts receivable
outstanding are deemed uncollectible or subject to adjustment, these allowances
are adjusted accordingly. In circumstances where we become aware of a specific
customer's inability to meet its financial obligations to us, a specific reserve
for bad debts is estimated and recorded which reduces the recognized receivable
to the estimated amount we believe will ultimately be collected. In addition to
specific customer identification of potential bad debts, bad debt charges are
recorded based on our recent past history and an overall assessment of past due
trade accounts receivable outstanding. We also estimate the amount of credits
for product placement, promotion and expired product that are expected to be
issued for product sold based on an evaluation of historical trends and record
an allowance when the sale is recorded.
Inflation
We do not believe that inflation had a significant impact on our results of
operations for the periods presented.
Off-Balance Sheet Transactions
At December 31, 2007, we did not have any relationships with unconsolidated
entities or financial partnerships, such as entities often referred to as
structured finance or special purpose entities, which would have been
established for the purpose of facilitating off-balance sheet arrangements or
other contractually narrow or limited purposes.
ITEM 7. FINANCIAL STATEMENTS
The financial statements for the years ended December 31, 2007 and 2006
are contained on pages F-1 to 37, which follow the signature page.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
The principal accountants' reports on our financial statements for the past
two years contained an explanatory paragraph regarding going concern
uncertainty.
No disagreement with the auditors occurred during the two most recent
fiscal years or the subsequent interim period 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 the
accountants, would have caused them to make reference to the subject matter of
the disagreements in connection with their reports.
Item 8A. CONTROLS AND PROCEDURES
(a) Evaluation of Disclosure Controls and Proceedures
The Mr. Kundrat, NuVim's Chief Executive Officer and Chief Financial
Officer,
26
evaluated the effectiveness of the design and operation of its disclosure
controls and procedures as defined in Exchange Act Rule 13a-15(e). The term
"disclosure controls and procedures," as defined in Rules 13a-15(e) and 15d
-15(e) under the Securities Exchange Act of 1934, as amended, (the Exchange Act)
means controls and other procedures of a company that are designed to ensure
that this information is recorded, processed, summarized, and reported within
the time periods specified in the SEC's rules and forms. Disclosure controls
and procedures include controls and procedures designed to ensure that
information required to be disclosed by a company in the reports that it files
or submits under the Exchange Act is accumulated and communicated to the
company's management, including its principal executive and principal financial
officers, as appropriate to allow timely decisions regarding required
disclosure. Based upon their evaluation of its disclosure controls and
procedures, NuVim's chief executive and the chief financial officer have
concluded that, as of December 31, 2007 and as of the date of filing, the
controls, and procedures were effective at a reasonable assurance level and will
continue to operate as designed.
NuVim maintains certain internal controls over financial reporting that are
appropriate, consistent with cost-benefit considerations, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally
accepted accounting principles.
(b) Management's Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate
internal control over financial reporting (as defined in Rule 13a-15(f) under
the Exchange Act). Our management assessed the effectiveness of our internal
control over financial reporting as of December 31, 2007. In making this
assessment, our management used the criteria set forth by the Committee of
Sponsoring Organizations of the Treadway Commission in Internal Control
-Integrated Framework. Our management has concluded that, as of December 31,
2007, our internal control over financial reporting is effective based on these
criteria. This annual report does not include an attestation report of our
registered public accounting firm regarding internal control over financial
reporting. Management's report was not subject to attestation by our registered
public accounting firm pursuant to temporary rules of the SEC that permit us to
provide only management's report in this annual report.
(c) Changes in Internal Control over Financial Reporting
No change effecting NuVim's internal controls occurred during the fourth
quarter has materially affected, or is reasonably likely to materially affect,
our internal control over financial reporting.
ITEM 8B. OTHER INFORMATION
None
27
PART III
Item 9, 10, 11, 12, and 14 are incorporated from the Proxy Statement
included in Schedule 14A to be filled within 120 days of the end of NuVim's
fiscal year.
ITEM 13. EXHIBITS
-------------------------------------------------------------------------------------------------------------------------------
EXHIBIT DESCRIPTION OF EXHIBIT INCORP. FILED
NUMBER BY REF. NOW
-------------------------------------------------------------------------------------------------------------------------------
3.1 Registrant's Certificate of Incorporation, as amended (2)
-------------------------------------------------------------------------------------------------------------------------------
3.2 Registrant's Certificate of Amendment of Certificate of Incorporation (2)
-------------------------------------------------------------------------------------------------------------------------------
3.3 Registrant's Second Amended and Restated Designation and Description of Series A (4)
Preferred Stock
-------------------------------------------------------------------------------------------------------------------------------
3.4 Registrant's Amended and Restated Designation and Description of Series C Preferred Stock (4)
-------------------------------------------------------------------------------------------------------------------------------
3.5 Registrant's By-laws (2)
-------------------------------------------------------------------------------------------------------------------------------
4.1 Revised Form of Common Stock Certificate (4)
-------------------------------------------------------------------------------------------------------------------------------
4.2 Revised Form of Class A Public Warrant (4)
-------------------------------------------------------------------------------------------------------------------------------
4.3 Revised Form of Class B Public Warrant (4)
-------------------------------------------------------------------------------------------------------------------------------
4.4 Revised Form of Unit Certificate (4)
-------------------------------------------------------------------------------------------------------------------------------
4.5 Revised Form of Warrant Agreement between the Registrant and American Stock Transfer & (1)
Trust Company
-------------------------------------------------------------------------------------------------------------------------------
4.6 Revised Form of Representative's Purchase Warrant (1)
-------------------------------------------------------------------------------------------------------------------------------
5.1 Legal Opinion (11)
-------------------------------------------------------------------------------------------------------------------------------
10.1 Employment Agreement between the Registrant and Richard P. Kundrat, dated as of (2)
September 9, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.2 Employment Agreement between the Registrant and John L. Sullivan, dated as of (2)
September 9, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.3 Employment Agreement between the Registrant and Paul J. Young, dated as of (2)
September 9, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.4 Employment Agreement between the Registrant and Michael Vesey, dated as of December 1, 2004 (3)
-------------------------------------------------------------------------------------------------------------------------------
10.5 Form of Indemnification Agreement between the Registrant and its directors (2)
-------------------------------------------------------------------------------------------------------------------------------
10.6 Revised 2005 Incentive Stock Option Plan (4)
-------------------------------------------------------------------------------------------------------------------------------
10.7 Revised 2005 Directors' Stock Option Plan (4)
-------------------------------------------------------------------------------------------------------------------------------
10.8 2000 Employee Stock Option Plan (2)
-------------------------------------------------------------------------------------------------------------------------------
10.9 2001 Employee Stock Option Plan (2)
-------------------------------------------------------------------------------------------------------------------------------
10.10 2002 Employee Stock Option Plan (3)
-------------------------------------------------------------------------------------------------------------------------------
10.11 2000 Employee Equity Incentive Plan (2)
-------------------------------------------------------------------------------------------------------------------------------
10.12 Amended and Restated License Agreement between the Registrant and (2)
Stolle Milk Biologics, Inc., dated as of May 1, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.13 Amended and Restated Supply Agreement between the Registrant and (2)
Stolle Milk Biologics, Inc., dated as of May 1, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.14 Loan Agreement between the Registrant and Dick Clark dated as of July 26, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.14.1 Letter Agreement dated November 3, 2004 amending certain terms of the Amendment to (3)
Services Agreement and Convertible Promissory note each dated July 26, 2004 and Second
Amendment to Services Agreement and Warrant, each dated September 14, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.14.2 Letter Agreement dated March 28, 2005 amending certain terms of the Amendment to (4)
Services Agreement and Convertible Promissory note each dated July 26, 2004 and Second
Amendment to Services Agreement and Warrant, each dated September 14, 2004
-------------------------------------------------------------------------------------------------------------------------------
28
-------------------------------------------------------------------------------------------------------------------------------
10.14.3 Letter Agreement dated April 30, 2005 amending certain terms of the Amendment to (5)
Services Agreement and Convertible Promissory note each dated July 26, 2004 and
Second Amendment to Services Agreement and Warrant, each dated September 14, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.14.4 Letter Agreement dated May 31, 2005 amending certain terms of the Amendment to (1)
Services Agreement and Convertible Promissory note each dated July 26, 2004 and
Second Amendment to Services Agreement and Warrant, each dated September 14, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.15 Security Agreement between the Registrant and Dick Clark dated as of July 26, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.16 Form of Secured Promissory Notes Up to $1 Million (Bridge Financing) (2)
-------------------------------------------------------------------------------------------------------------------------------
10.17 Convertible Note dated as of July 26, 2004 payable to Dick Clark (2)
-------------------------------------------------------------------------------------------------------------------------------
10.18 Warrant to Purchase $650,000 of Common Stock dated as of September 14, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.19 Warrant to Purchase up to 9.9% of the Outstanding Capital Stock, dated as of July 26, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.20 Services Agreement between the Registrant and Olive Enterprises, Inc., dated (2)
February 20, 2000
-------------------------------------------------------------------------------------------------------------------------------
10.21 Amendment to Services Agreement between the Registrant and Olive Enterprises, Inc., (2)
dated as of July 26, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.22 Second Amendment to Services Agreement between the Registrant and Olive Enterprises, Inc., (2)
dated as of September 14, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.23 Form of Subordination Agreement (Bridge Financing) (2)
-------------------------------------------------------------------------------------------------------------------------------
10.24 Consent to Grant Security Interest, Waiver, Subordination and Amendment Agreement between (2)
Registrant and Stolle Milk Biologics, Inc., dated August 5, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.25 Processing and Packing Agreement between the Registrant and Clover Farms Dairy Company, (2)
dated June 27, 2000
-------------------------------------------------------------------------------------------------------------------------------
10.26 Amendment to Processing and Packing Agreement between the Registrant and Clover Farms (2)
Dairy Company, effective April 1, 2003
-------------------------------------------------------------------------------------------------------------------------------
10.27 Second Amended and Restated Stockholders Agreement dated as of August 2, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.28 Amended and Restated Registration Rights Agreement, dated as of August 2, 2004 (2)
-------------------------------------------------------------------------------------------------------------------------------
10.29 Wachovia line of credit documents (4)
-------------------------------------------------------------------------------------------------------------------------------
10.30 Lease between the Registrant and Paramus Plaza IV Associates, dated December 8, 1999 and (2)
Addendum II to Lease, dated December 8, 1999
-------------------------------------------------------------------------------------------------------------------------------
10.31 First Amendment to Lease between the Registrant and Paramus Plaza IV Associates, (2)
dated November 5, 2002
-------------------------------------------------------------------------------------------------------------------------------
10.32 Second Amendment to Lease between the Registrant and Paramus Plaza IV Associates, (2)
dated November 23, 2004
-------------------------------------------------------------------------------------------------------------------------------
10.33.1 Letter Agreements dated December 31, 2004 between Spencer Trask Private Equity Fund I LP, (4)
Spencer Trask Private Equity Fund II LP, Spencer Trask Specialty Group LLC and Kevin
Kimberlin Partners LP, on the one hand, and the registrant on the other, with respect
to the debt extinguishment transactions between the parties, as amended by agreements
of March 28, 2005
-------------------------------------------------------------------------------------------------------------------------------
10.33.2 Agreement dated May 2, 2005 further amending the agreements with Spencer Trask (5)
-------------------------------------------------------------------------------------------------------------------------------
10.33.3 Agreement dated May 18, 2005 further amending the agreements with Spencer Trask (1)
-------------------------------------------------------------------------------------------------------------------------------
10.34 Security Agreement between the Registrant and Spencer Trask Specialty Group LLC, (4)
dated January 31, 2002
-------------------------------------------------------------------------------------------------------------------------------
10.35.1 Modification and Extension Agreement between Stolle Milk Biologics, Inc. and the (4)
Registrant dated March 28, 2005
-------------------------------------------------------------------------------------------------------------------------------
10.35.2 Amendment of March 28, 2005 Modification and Extension Agreement (1)
-------------------------------------------------------------------------------------------------------------------------------
10.36.1 Conversion Agreement dated April 30, 2005 between the Registrant and Dick Clark (5)
-------------------------------------------------------------------------------------------------------------------------------
29
-------------------------------------------------------------------------------------------------------------------------------
10.36.2 Amended and Restated Conversion Agreement between the Registrant and Dick Clark, (1)
dated May 31, 2005
-------------------------------------------------------------------------------------------------------------------------------
10.36 Proposal/Memorandum of Understanding between the Registrant and Global Media Fund, LLC (6)
-------------------------------------------------------------------------------------------------------------------------------
10.37 Form of Secured Convertible Promissory note between the Registrant and Lenders (6)
-------------------------------------------------------------------------------------------------------------------------------
10.38 Form of Warrant Agreement between the Registrant and Lenders (6)
-------------------------------------------------------------------------------------------------------------------------------
10.39 Form of Warrant Agreement between the Registrant and Midtown Partners (6)
-------------------------------------------------------------------------------------------------------------------------------
10.40 Placement Agent Agreement between the Registrant and Midtown Partners (6)
-------------------------------------------------------------------------------------------------------------------------------
10.40.1 Letter Terminating Placement Agent Agreement between the Registrant and Midtown Partners (6)
-------------------------------------------------------------------------------------------------------------------------------
10.41 Dick Clark/Stanley Moger Consent to Secured Convertible Note financing (6)
-------------------------------------------------------------------------------------------------------------------------------
10.42 Warrant issued in connection with acquisition of 24% interest in NuVim Powder LLC (7)
-------------------------------------------------------------------------------------------------------------------------------
10.43 Placement Agent Agreement (7)
-------------------------------------------------------------------------------------------------------------------------------
10.44 2006 Employee Stock Option Plan (8)
-------------------------------------------------------------------------------------------------------------------------------
10.45 Note Extension Letter with Richard Clark and Stanley Moger (9)
-------------------------------------------------------------------------------------------------------------------------------
10.46 Note Extension Letter with Kirkpatrick &Lockhart Nicholson Graham LLP (9)
-------------------------------------------------------------------------------------------------------------------------------
21 Subsidiaries of the Registrant (12)
-------------------------------------------------------------------------------------------------------------------------------
23.2 Consent of WithumSmith+Brown, P.C., Independent Registered Public Accounting Firm (11)
-------------------------------------------------------------------------------------------------------------------------------
23.3 Consent of Attorney (included in Exhibit 5.1) (11)
-------------------------------------------------------------------------------------------------------------------------------
24 Power of Attorney (10)
-------------------------------------------------------------------------------------------------------------------------------
31.1 Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as X
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
-------------------------------------------------------------------------------------------------------------------------------
31.2 Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, X
as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
-------------------------------------------------------------------------------------------------------------------------------
32.1 Certification of the Chief Executive pursuant to 18 U.S.C. Section 1350, as X
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
-------------------------------------------------------------------------------------------------------------------------------
32.2 Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section X
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
-------------------------------------------------------------------------------------------------------------------------------
________________________
(1) Previously filed as part of Pre-effective Amendment No. 6 to the
Registration Statement filed on June 6, 2005.
(2) Previously filed as part of the Registration Statement filed on December 2,
2004.
(3) Previously filed as part of Pre-effective Amendment No.1 to the
Registration Statement filed on February 3, 2005.
(4) Previously filed as part of Pre-effective Amendment No.3 to the
Registration Statement filed on March 31, 2005.
(5) Previously filed as part of Pre-effective Amendment No.5 to the
Registration Statement filed on May 4, 2005.
(6) Previously filed as part of the 2005 Annual Report on Form 10-KSB
(7) Previously filed as part of the Current Report on Form 8-K filed April 21,
2006.
(8) Previously filed as part of the Current Report on Form 8-K filed May 30,
2006.
(9) Previously filed as part of the Current Report on Form 8-K filed August 28,
2006.
(10) Previously filed as part of the Registration Statement filed on October 10,
2006.
(11) Previously filed as part of Pre-effective Amendment Number 1 to the
Registration Statement filed on December 18, 2006.
(12) Previously filed as part of the Annual Report on Form 10-KSB filed April
14, 2007.
30
SIGNATURES
In accordance with Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
NUVIM, INC.
Date: April 14, 2008
By: /s/ Richard Kundrat
---------------------------------------
Richard Kundrat, Chief Executive Officer
In accordance with the Exchange Act, this report has been signed bellow by
the following persons on behalf of the registrant and in the capacities and on
the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Richard Kundrat
------------------------------ Chief Executive Officer April 14, 2008
Richard Kundrat
/s/ Richard Kundrat
------------------------------ Chief Financial April 14, 2008
Richard Kundrat and Accounting Officer
/s/ Richard P. Kundrat
------------------------------ April 14, 2008
Richard P. Kundrat Director
/s/ Calvin L. Hodock
------------------------------ April 11, 2008
Calvin L. Hodock Director
/s/ Stanley H. Moger
------------------------------ April 11, 2008
Stanley H. Moger Director
/s/ Peter V. DeCrescenzo
------------------------------ April 14, 2008
Peter V. DeCrescenzo Director
------------------------------ April __, 2008
Doug Scott Director
31
NUVIM INC.
---------------------------
FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2006 and 2007
--------------------------------------
INDEX TO FINANCIAL STATEMENTS
Page
------
Reports of Independent Registered Public Accounting Firms F - 2
Balance Sheets - December 31, 2006 and 2007 F - 4
Statements of Operations - Years ended December 31, 2006 and December 31, 2007 F - 5
Statements of Cash Flows - Years ended December 31, 2006 and December 31, 2007 F - 6
Statements of Stockholders' Deficit - Years ended December 31, 2006 and December 31, 2007 F - 7
Notes to Financial Statements F - 8
F-1
REPORTS OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMS
To the Audit Committee of
NuVim, Inc.:
We have audited the accompanying balance sheet of NuVim, Inc. (the "Company") as
of December 31, 2006, and the related statement of operations, stockholders'
deficit, and cash flows for the year 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 audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. 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 audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Company as of December 31,
2006, and the results of its operations and its cash flows for the year then
ended, in conformity with accounting principles generally accepted in the United
States of America.
As discussed in Note 2I to the accompanying financial statements, effective
January 1, 2006, the Company adopted Statement of Financial Accounting Standards
No. 123(R), "Share-Based Payments".
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1B to the
financial statements, the Company has suffered recurring losses from operations
and, at December 31, 2006 had a net working capital deficiency of $506,292 and a
shareholders' deficiency of $1,534,232, that 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 1B. The financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
/s/ WithumSmith+Brown, P.C.
Somerville, New Jersey
April 11, 2007
F-2
REPORTS OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMS (Con't)
Stockholders and Directors
Nuvim, Inc.
We have audited the accompanying balance sheet of NuVim, Inc. as of December 31,
2007, and the related statements of operations, stockholders' deficit and cash
flows for the year ended December 31, 2007. 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 audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we
plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. 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
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of NuVim, Inc. as of December 31,
2007, and the results of its operations and its cash flows for the year then
ended December 31, 2007 in conformity with accounting principles generally
accepted in the United States.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company has suffered recurring
losses from operations, including a net loss of approximately $1.5 million for
the year ended December 31, 2007, and has a substantial working capital
deficiency as of December 31, 2007. These factors raise substantial doubt the
Company's ability to continue as a going concern. The financial statements do
not include any adjustments that might result from the outcom e of this
uncertainty.
/s/ Sherb & Co., LLP
Certified Public Accountants
New York, New York
April 9, 2008
F-3
NUVIM, INC.
BALANCE SHEETS
December 31, 2007
-------------------------------
2007 2006
------------ ------------
ASSETS
Current Assets:
Cash and cash equivalents $ 14,814 $ 55,472
Accounts receivable, net 17,594 55,827
Inventory 205,456 166,929
Prepaid expenses and other current assets 28,620 191,053
------------ ------------
Total Current Assets 266,484 469,281
------------ ------------
Equipment and furniture, net 54 598
Deferred offering costs - 57,025
Deposits and other assets 6,206 8,147
Distribution rights 90,400 90,400
------------ ------------
TOTAL ASSETS $ 363,144 $ 625,451
============ ============
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Bank line of credit $ 46,663 $ -
Current portion of accounts payable 386,165 443,426
Accounts payable and accrued expenses to related party - 57,606
Accrued expenses 117,094 119,597
Accrued compensation 373,533 336,024
Rescinded series B offering payable 18,920 18,920
------------ ------------
TOTAL CURRENT LIABILITIES 942,375 975,573
Other Liabilities:
Accounts payable, net of current portion 206,429 242,430
Senior notes payable - related parties, net of unamortized discount of
$11,619 at December 31, 2007 and $36,667 at Decemer 31, 2006 488,381 463,333
Accrued interest - senior notes payable - related parties 209,160 169,160
Stockholder loans - subordinated covertable promissory notes 150,000 150,000
Accrued interest stockholder loans 33,770 21,770
Other notes payable, net of unamortized discount of $4,100 at
December 31, 2007 and $8,500 at December 31, 2006 114,900 111,500
Accrued Interest - other notes payable 35,518 25,917
------------ ------------
TOTAL OTHER LIABILITIES 1,238,158 1,184,110
------------ ------------
TOTAL LIABILITIES 2,180,533 2,159,683
Stockholders' Deficit:
Common Stock, 120,000,000 shares authorized, $.00001 par value,
14,740,782 shares issued and outstanding at December 31, 2007 and
11,622,867 shares issued and outstanding at December 31, 2006 147 116
Additional paid-in capital 21,655,862 20,489,672
Accumulated deficit (23,473,398) (22,024,020)
------------ ------------
Total Stockholders' Deficit (1,817,389) (1,534,232)
------------ ------------
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT $ 363,144 $ 625,451
============ ============
The notes to financial statements are an integral part of this statement.
F-4
NUVIM, INC.
STATEMENTS OF OPERATIONS
Years Ended December 31,
---------------------------
2007 2006
----------- -----------
Gross sales $ 1,137,285 $ 1,292,155
Less: discounts, allowances and
promotional payments 342,269 348,177
----------- -----------
Net sales 795,016 943,978
Cost of sales 582,101 702,492
----------- -----------
Gross profit 212,915 241,486
Selling, general and administrative
expenses 1,732,700 2,407,253
----------- -----------
Loss from operations (1,519,785) (2,165,767)
Other Income (Expense):
Interest expense (93,799) (115,777)
Gain on sale of assets - 42,000
Gain on forgiveness of Accounts Payable - 18,498
----------- -----------
Total other income (expense) - net (93,799) (55,279)
----------- -----------
Net loss before income tax benefit (1,613,584) (2,221,046)
Income tax (expense) benefit 164,206 442,087
----------- -----------
Net loss $(1,449,378) $(1,778,959)
=========== ===========
Basic and diluted loss per share $ (0.10) $ (0.20)
=========== ===========
Weighted average number of common shares outstanding -
basic and diluted 14,104,682 8,953,184
=========== ===========
The notes to financial statements are an integral part of this statement.
F-5
NUVIM, INC.
STATEMENTS OF CASH FLOWS
Years Ended December 31,
-----------------------------
2007 2006
------------ -----------
Cash Flow From Operating Activities:
Net loss $(1,449,378) $(1,778,959)
Adjustment to reconcile net loss to net cash used in operating activities:
Depreciation 544 904
Amortization of debt discount on notes payable 25,048 14,029
Stock issued for services 109,600 266,065
Employee stock based compensation 383,244 546,881
Stock issued for compensation 46,583 125,750
Gain on forgiveness of accounts payable - (18,498)
Gain on sale of assets - (42,000)
Interest expense accrued in connection with warrants for debt discount 3,400 7,333
Provision for sales returns 342,269 348,177
Changes in Operating Assets and Liabilities:
Accounts receivable (304,036) (368,605)
Inventory (38,527) 5,785
Prepaid expenses and other assets 164,374 171,862
Accounts payable (93,262) (73,407)
Accounts payable and accrued expenses - related party (57,606) (173,722)
Accrued expenses (2,503) (150,371)
Accrued compensation 37,509 315,215
Accrued interest 61,600 75,715
----------- -----------
Net Cash Used in Operating Activities (771,141) (727,846)
----------- -----------
Cash Flow From Investing Activities:
Proceeds from sale of assets - 42,000
----------- -----------
Net Cash Provided by Investing Activities - 42,000
----------- -----------
Cash Flow From Financing Activities:
Payment of notes payable (25,000) (160,000)
Related party advance 25,000 160,000
Repayment of related party advance - (6,000)
Bank borrowings 46,663 -
Fees related to equity financing - (57,025)
Net proceeds from issuance of common stock 683,820 533,875
----------- -----------
Net Cash Provided by Financing Activities 730,483 470,850
----------- -----------
(Decrease) Increase in Cash and Cash Equivalents (40,658) (214,996)
Cash and Cash Equivalents at Beginning of Year 55,472 270,468
----------- -----------
Cash and Cash Equivalents at End of Year $ 14,814 $ 55,472
=========== ===========
The notes to financial statements are an integral part of this statement.
F-6
NUVIM, INC.
STATEMENT OF CHANGES IN STOCKHOLDERS' DEFICIT
YEARS ENDED DECEMBER 31, 2006 and 2007
Common Stock Additional Total
------------------------ Paid-In Accumulated Shareholders'
Shares Amount Capital Deficit Deficit
---------- ----------- ------------ -------------- -------------
Balance at December 31, 2005 5,034,995 $ 51 $ 18,167,605 $ (20,245,061) $ (2,077,405)
Stock sold to accredited investors, net 2,970,000 30 533,845 533,875
Stock issued for services 762,554 8 272,057 272,065
Stock cancellation for services not rendered (17,142) (5,999) (5,999)
Stock issued for accounts payable 331,453 3 110,581 110,584
Stock issued for accrued compensation 1,246,643 12 481,278 481,290
Stock issued for secured convertible 0
promissory notes 335,000 3 66,997 67,000
Stock issued for stockholders loans 0
and accrued interest 290,614 3 96,183 96,186
Stock issued for purchase of Nuvim Powder, LLC 450,000 4 89,996 90,000
Employee stock based compensation 546,881 546,881
Stock issued for employee compensation 218,750 2 43,748 43,750
Warrants issued for note extension - senior notes 44,000 44,000
Warrants issued for note extension - other notes 8,500 8,500
Warrants issued for services 34,000 34,000
0
Net loss (1,778,959) (1,778,959)
---------- ----------- ------------ -------------- -------------
Balance at December 31, 2006 11,622,867 116 20,489,672 (22,024,020) (1,534,232)
Stock sold to accredited investors, net 2,506,000 25 683,795 - 683,820
Registration costs - - (57,025) - (57,025)
Stock issued for accrued compensation 172,915 2 46,580 - 46,582
Stock issued for services 439,000 4 109,596 - 109,600
Employee stock based compensation - - 383,244 - 383,244
Net Loss - - - (1,449,378) (1,449,378)
---------- ----------- ------------ -------------- -------------
Balance at December 31, 2007 14,740,782 $ 147 $ 21,655,862 $ (23,473,398) $ (1,817,389)
========== =========== ============ ============== =============
The notes to financial statements are an integral part of this statement.
F-7
NUVIM, INC.
NOTES TO FINANCIAL STATEMENTS
NOTE 1 - BUSINESS AND BASIS OF PRESENTATION
A. Business
NuVim, Inc. (the "Company") markets and distributes dietary supplement
beverages, which enhance the immune system, promote sturdy joints and muscle
flexibility. The Company distributes its products through supermarkets in
approximately 13 states, predominately on the East Coast, and the District of
Columbia.
B. Going Concern
The accompanying financial statements have been prepared assuming the Company
will continue as a going concern. As shown in the accompanying financial
statements, the Company incurred net losses of $1,449,378 and $1,778,959 for the
years ended December 31, 2007 and 2006, respectively. Management also expects
operating losses to continue in 2008. The Company's continued existence is
dependent upon its ability to secure adequate financing to fund future
operations and commence profitable operations. To date, the Company has
supported its activities through the sale of common stock.
It is the Company's intention to raise additional capital through additional
sales of its common stock. No assurance can be given that these funding
strategies will be successful in providing the necessary funding to finance the
operations of the Company. Additionally, there can be no assurance, even if
successful in obtaining financing, the Company will be able to generate
sufficient cash flows to fund future operations. These conditions raise
substantial doubt about the Company's ability to continue as a going concern.
The accompanying financial statements do not include any adjustments relating to
the recoverability and classification of recorded assets or amounts and
classification of liabilities that might be necessary related to this
uncertainty.
NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES
A. Cash Equivalents
Cash equivalents consist of highly-liquid investments with an original maturity
of three months or less when purchased.
B. Accounts Receivable
Accounts receivable are unsecured, non-interest bearing obligations that are
typically due from customers within 30 days of the invoice date. Management
applies collections in accordance with customer remittance advices or to the
oldest outstanding invoice if no remittance advice is presented with payment.
Accounts receivable are recorded at their net realizable value. The Company
estimates an allowance for doubtful accounts, sales returns and allowances based
on historical trends and other criteria. At December 31, 2007 and 2006, these
allowances approximated $25,908 and $26,100, respectively. No bad debt expense
was incurred in 2007 and 2006 as all allowances represented sales returns or
promotional allowances.
F-8
C. Inventories
Inventories, which are predominantly raw materials and finished goods, are
stated at the lower of cost (first-in, first-out method) or market. A provision
for excess or obsolete inventory is recorded at the time the determination is
made. For finished goods, inventory that is within 30 days of its expiration
date is charged to cost of sales.
D. Deferred Offering Costs
During 2006, the Company incurred $57,025 in deferred offering costs in regard
to their SB-2 filing during the year to register securities as of December 31,
2006. The registration statement related to the securities was declared
effective during 2007 and the amount was reclassified to stockholders equity.
E. Revenue Recognition
The Company records revenue at the time the related products are received by the
customer from the public warehouse used by the Company and the risk of ownership
has passed to the customer. A provision for estimated product returns,
promotional allowances and cash discounts based on the Company's historical
experience is recorded during the period of sale.
F. Promotional Allowances
As an inducement to its customers to display the Company's products in preferred
locations of their stores, the Company provides placement and promotional
allowances to certain customers. The Company also reimburses retailers for
coupon redemptions, and provides credits for product which has not been sold by
its expiration date. These allowances and credits are reflected as a reduction
of gross sales in accordance with Emerging Issues Task Force ("EITF") No. 01
-09"Accounting for Consideration Given by a Vendor to a Customer".
G. Freight Costs
In accordance with EITF No. 00-10, "Accounting for Shipping and Handling Fees
and Costs," reimbursement of freight charges are recorded in net sales and the
Company is disclosing that unreimbursed freight costs are recorded as selling
general and administrative expenses. For the years ended December 31, 2007 and
2006, freight-out costs approximated $207,000 and $270,000, respectively, and
have been recorded in selling, general and administrative expenses.
H. Equipment and Furniture
Equipment and furniture is stated at cost and depreciated using the straight-
line method over the estimated useful lives of the assets (3-5 years).
I. Stock-Based Compensation
The Company adopted SFAS No. 123R, "Share Based Payments." SFAS No. 123R
requires companies to expense the value of employee stock options and similar
awards and applies to all outstanding and vested stock-based awards.
In computing the impact, the fair value of each option is estimated on the date
of grant based on the Black-Scholes options-pricing model utilizing certain
assumptions for a risk free interest rate; volatility; and expected remaining
lives of the awards. The assumptions used in calculating the fair value of
share-based payment awards represent management's best estimates, but these
F-9
estimates involve inherent uncertainties and the application of management
judgment. As a result, if factors change and the Company uses different
assumptions, the Company's stock-based compensation expense could be materially
different in the future. In addition, the Company is required to estimate the
expected forfeiture rate and only recognize expense for those shares expected to
vest. In estimating the Company's forfeiture rate, the Company analyzed its
historical forfeiture rate, the remaining lives of unvested options, and the
amount of vested options as a percentage of total options outstanding. If the
Company's actual forfeiture rate is materially different from its estimate, or
if the Company reevaluates the forfeiture rate in the future, the stock-based
compensation expense could be significantly different from what we have recorded
in the current period. The impact of applying SFAS No. 123R approximated
$383,000 and $546,881 in compensation expense during the years ended December
31, 2007 and 2006, respectively. Such amount is included in general and
administrative expenses on the statement of operations.
J. Advertising and Promotion Costs
Advertising and promotion costs are expensed as incurred. Advertising expenses,
including media advertising, in store sampling programs, and advertisements in
customer printed circulars were included in selling, general and administrative
expenses, with the exception of coupon expenses which were included as a
reduction of net sales. During the years ended December 31, 2007 and 2006,
advertising and promotion expense was approximately $192,000 and $268,000,
respectively.
K. Income Taxes
Deferred tax assets and liabilities are determined based on differences between
financial reporting and income tax basis of assets and liabilities and are
measured using the enacted tax rates and laws that will be in effect when the
differences are expected to reverse. Differences that give rise to significant
portions of the Company's deferred tax assets are net operating losses and
deferred stock compensation. A valuation allowance is recorded against deferred
tax assets in instances where the realization of the deferred tax asset is not
considered to be "more likely than not."
L. Use of Estimates
The preparation of financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes including the disclosure of contingent assets and
liabilities. These estimates include, but are not necessarily limited to,
accounts receivable allowances, stock based compensation and depreciation and
coupon liability estimates. Actual results could differ from those estimates.
M. Net Loss Per Share
Basic loss per share has been calculated using the weighted average number of
common shares outstanding in accordance with FASB 128 "Earnings Per Share." All
potentially dilutive securities, including options, convertible notes,
convertible preferred stock and warrants have been excluded as common stock
equivalents and diluted loss per share has not been presented as such securities
are antidilutive due to the Company's net loss for all periods presented. At
December 31, 2007, the Company had warrants outstanding to purchase 7,513,800
shares of common stock and employee stock options to purchase 3,696,147 shares
of common stock outstanding, which are not included in the calculation.
F-10
N. Impairment of Long Lived Assets
The Company reviews long-lived assets for impairment whenever circumstances and
situations change such that there is an indication that the carrying amounts may
not be recovered. At December 31, 2007 and December 31, 2006 the Company has not
recognized any impairment charges for long lived assets.
O. Concentration of Risks
The Company maintains its cash balances in financial institutions located in New
Jersey, and periodically has cash balances in excess of Federal Deposit
Insurance Corporation limits. The Company distributes its products and grants
credit to its customers who are food distributors and retailers located
primarily in the eastern portion of the United States. The Company generally
does not require collateral or other security with regard to balances due from
customers. The Company extends credit to its customers in the normal course of
business and performs periodic credit evaluations of its customers, maintaining
allowances for potential credit losses.
Sales to one customer during the year ended December 31, 2007 approximated 50%
of sales. Sales to two customers during the year ended December 31, 2006
approximated 51% and 12% of sales. A loss of one of these customers could have
a significant adverse effect on the Company's results of operations and cash
flows.
Accounts receivable from four customers at December 31, 2007 approximated 49%,
11%, 11% and 10%, respectively and two customers at December 31, 2006
approximated 53% and 11% of accounts receivable.
One outside vendor manufactured all of the Company's finished goods. During the
years ended December 31, 2007 and 2006, manufacturing costs of approximately
$230,000 and $208,000 were incurred at this vendor. There was no amount due to
this vendor at December 31, 2007 and 2006.
P. Value of Financial Instruments
The Company's financial instruments consist mainly of cash and cash equivalents,
accounts receivable, accounts payable and debt. The carrying amounts of these
financial instruments approximate fair value due to their short-term nature. The
carrying amount due to related party, notes payable and stockholder loans are
estimated to approximate their fair values as their stated interest rates
approximate current interest rates.
Q. Recent Accounting Pronouncements
SFAS No. 159
------------
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for
Financial Assets and Financial Liabilities - including an amendment of FAS
115 ("SFAS No. 159"). SFAS No. 159 allows companies to choose, at specified
election dates, to measure eligible financial assets and liabilities at fair
value that are not otherwise required to be measured at fair value.
Unrealized gains and losses shall be reported on items for which the fair
value option has been elected in earnings at each subsequent reporting date.
SFAS No. 159 also establishes presentation and disclosure requirements. SFAS
No. 159 is effective for fiscal years beginning after November 15, 2007 and
will be applied prospectively. The Company is
F-11
currently evaluating the impact of adopting SFAS No. 159 on our consolidated
financial position, results of operations and cash flows.
FASB Statement Number 141 (revised 2007)
----------------------------------------
In December 2007, the FASB issued FASB Statement No. 141 (revised 2007),
Business Combinations. This Statement replaces FASB Statement No. 141,
Business Combinations. This Statement retains the fundamental requirements
in Statement 141 that the acquisition method of accounting (which Statement
141 called the purchase method) be used for all business combinations and
for an acquirer to be identified for each business combination. This
Statement defines the acquirer as the entity that obtains control of one or
more businesses in the business combination and establishes the acquisition
date as the date that the acquirer achieves control. This Statement's scope
is broader than that of Statement 141, which applied only to business
combinations in which control was obtained by transferring consideration. By
applying the same method of accounting-the acquisition method-to all
transactions and other events in which one entity obtains control over one
or more other businesses, this Statement improves the comparability of the
information about business combinations provided in financial reports.
This Statement requires an acquirer to recognize the assets acquired, the
liabilities assumed, and any noncontrolling interest in the acquiree at the
acquisition date, measured at their fair values as of that date, with
limited exceptions specified in the Statement. That replaces Statement 141's
cost-allocation process, which required the cost of an acquisition to be
allocated to the individual assets acquired and liabilities assumed based on
their estimated fair values.
This Statement applies to all transactions or other events in which an
entity (the acquirer) obtains control of one or more businesses (the
acquirer), including those sometimes referred to as "true mergers" or
"mergers of equals" and combinations achieved without the transfer of
consideration, for example, by contract alone or through the lapse of
minority veto rights. This Statement applies to all business entities,
including mutual entities that previously used the pooling-of-interests
method of accounting for some business combinations. It does not apply to:
(a) The formation of a joint venture, (b) The acquisition of an asset or a
group of assets that does not constitute a business, (c) A combination
between entities or businesses under common control, (d) A combination
between not-for-profit organizations or the acquisition of a for-profit
business by a not-for-profit organization.
This Statement applies prospectively to business combinations for which the
acquisition date is on or after the beginning of the first annual reporting
period beginning on or after December 15, 2008. An entity may not apply it
before that date. Management believes this Statement will have no impact on
the financial statements of the Company once adopted.
FASB Statement Number 160
-------------------------
In December 2007, the FASB issued FASB Statement No. 160 - Noncontrolling
Interests in Consolidated Financial Statements - an amendment of ARB No. 51.
This Statement applies to all entities that prepare consolidated financial
statements, except not-for-profit organizations, but will affect only those
entities that have an outstanding noncontrolling interest in one or more
subsidiaries or that deconsolidate a subsidiary. Not-for-profit
organizations should continue to apply the guidance in Accounting Research
Bulletin No. 51, Consolidated
F-12
Financial Statements, before the amendments made by this Statement, and any
other applicable standards, until the Board issues interpretative guidance.
This Statement amends ARB 51 to establish accounting and reporting standards
for the noncontrolling interest in a subsidiary and for the deconsolidation
of a subsidiary. It clarifies that a noncontrolling interest in a subsidiary
is an ownership interest in the consolidated entity that should be reported
as equity in the consolidated financial statements. Before this Statement
was issued, limited guidance existed for reporting noncontrolling interests.
As a result, considerable diversity in practice existed. So-called minority
interests were reported in the consolidated statement of financial position
as liabilities or in the mezzanine section between liabilities and equity.
This Statement improves comparability by eliminating that diversity.
A noncontrolling interest, sometimes called a minority interest, is the
portion of equity in a subsidiary not attributable, directly or indirectly,
to a parent. The objective of this Statement is to improve the relevance,
comparability, and transparency of the financial information that a
reporting entity provides in its consolidated financial statements by
establishing accounting and reporting standards that require: (a) The
ownership interests in subsidiaries held by parties other than the parent be
clearly identified, labeled, and presented in the consolidated statement of
financial position within equity, but separate from the parent's equity, (b)
The amount of consolidated net income attributable to the parent and to the
noncontrolling interest be clearly identified and presented on the face of
the consolidated statement of income, (c) Changes in a parent's ownership
interest while the parent retains its controlling financial interest in its
subsidiary be accounted for consistently. A parent's ownership interest in a
subsidiary changes if the parent purchases additional ownership interests in
its subsidiary or if the parent sells some of its ownership interests in its
subsidiary. It also changes if the subsidiary reacquires some of its
ownership interests or the subsidiary issues additional ownership interests.
All of those transactions are economically similar, and this Statement
requires that they be accounted for similarly, as equity transactions, (d)
When a subsidiary is deconsolidated, any retained noncontrolling equity
investment in the former subsidiary be initially measured at fair value. The
gain or loss on the deconsolidation of the subsidiary is measured using the
fair value of any noncontrolling equity investment rather than the carrying
amount of that retained investment, (e) Entities provide sufficient
disclosures that clearly identify and distinguish between the interests of
the parent and the interests of the noncontrolling owners.
This Statement is effective for fiscal years, and interim periods within
those fiscal years, beginning on or after December 15, 2008 (that is,
January 1, 2009, for entities with calendar year-ends). Earlier adoption is
prohibited. This Statement shall be applied prospectively as of the
beginning of the fiscal year in which this Statement is initially applied,
except for the presentation and disclosure requirements. The presentation
and disclosure requirements shall be applied retrospectively for all periods
presented. Management believes this Statement will have no impact on the
financial statements of the Company once adopted.
R. Distribution Rights
Intangible assets consist of distributions rights acquired in connection with
the acquisition of remaining shares of NuVim Powder, LLC. This intangible asset
does not have a finite useful life and in accordance with Statement of Financial
Accounting Standards ("SFAS") No. 142, "Goodwill and Other Intangible Assets"
("SFAS No. 142"), such assets with are not amortized, but are subject to annual
impairment testing by applying a fair value based test. Management intends to
complete its first annual impairment testing of the distribution rights by the
anniversary date of the closing of this
F-13
transaction. It has not been determined whether an impairment adjustment will
be required related to this test.
S. Accounts Payable
Accounts payable represent amounts due for obligations to creditors in
connection with the Company's operations and are recorded at the amount
transacted, which are generally not significantly different from their fair
value. In connection with an outstanding obligation to one of the Company's
advertising vendors, the Company negotiated an extension of this obligation
until the year 2013 and has reflected amounts due beyond one year as long-term
accounts payable. The Company has followed the principles of Statement of
Financial Accounting Standards No. 15, Accounting by Debtors and Creditors for
Troubled Debt Restructurings in recording the extension of this obligation.
T. Reclassifications
Certain reclassifications were made to the presentation of the 2006 financial
statements in order to conform to the 2007 financial statements. Such
reclassifications had no effect on the prior year's results of operations.
NOTE 4 - INVENTORY
Inventory consists of the following:
December 31,
------------------
2007 2006
-------- --------
Raw materials $ 81,206 $ 60,911
Finished goods 124,250 106,018
-------- --------
Total $205,456 $166,929
======== ========
NOTE 5 - PREPAID EXPENSES AND OTHER CURRENT ASSETS
Prepaid Expenses and Other Current Assets consists of the following:
December 31,
-------------------
2007 2006
------- --------
Prepaid Advertising $ -- $141,250
Prepaid Insurance 28,620 41,303
Other Prepaids and
Advance Payments -- 8,500
------- --------
Total $28,620 $191,053
======= ========
F-14
NOTE 6 - EQUIPMENT AND FURNITURE
Equipment and furniture consists of the following:
December 31,
----------------------
2007 2006
-------- --------
Furniture and fixtures $ 54,964 $ 54,964
Less: accumulated depreciation (54,910) (54,366)
-------- --------
Equipment and furniture, net $ 54 $ 598
======== ========
Depreciation expense for years ended December 31, 2007 and 2006 was $544 and
$904, respectively.
During 2006 the Company sold its equipment that was fully depreciated that led
to a gain of $42,000.
NOTE 7 - BANK LINE OF CREDIT
The Company has a revolving line of credit with a bank in the amount of $50,000.
The borrowings are secured by assets of the Company. As of December 31, 2007,
there was $46,663 outstanding on this line of credit. The loan bears interest at
an annual rate of 29.99%.
NOTE 8 - SENIOR NOTES PAYABLE - RELATED PARTIES
In 2006, two holders of more than 5% of the Company's common stock, one of which
is also a member of the Company's board of directors, agreed to extend the
maturity of senior notes payable aggregating $500,000, and all the unpaid
interest thereon until January 15, 2009 In consideration of entering into the
agreements, each note-holder received warrants to purchase 100,000 shares of
common stock for $0.35 per share, expiring in 2015. These warrants were valued
under the black sholes method and were recorded as debt discount in the amount
of $44,000 and are being amortized over the 26 month term of the note.
The Company has recorded $40,000 and $50,000 as interest expense on the notes
during 2007 and 2006, respectively. Accrued interest was $209,160 at December
31, 2007 and $169,160 at December 31, 2006.
The notes accrue interest at 12% per annum, unless they are in default, in which
case the interest increases to 18%. The notes are secured by all of the assets
of the Company, and certain Company creditors were executed subordination
agreements in favor of the lenders.
NOTE 9 - STOCKHOLDER LOANS - SUBORDINATED CONVERTIBLE PROMISSORY NOTES
Stockholder Loans - Subordinated Convertible Promissory Notes consists of two
notes in the amount $100,000 and $50,000, which are due on demand, as there is
no stated term to these notes as of December 31, 2007. The notes bear interest
at a rate of 8% and default interest at 14%. The notes are subordinated in
right of payment to the senior notes payable-related parties.
The holder of these notes may convert the notes (or a portion thereof) into a
number of shares of Company's Series C preferred stock, calculated by dividing
the amount of the debt being converted by $.20 per share rounded to the nearest
whole share.
In 2006, two stockholders converted debts totaling $75,000 and accrued interest
of $21,100 into 291,000 shares of common stock.
F-15
At the holder's election, unless converted, the accrued interest on the notes
shall be paid to the holder in cash on the conversion date.
Interest expense on stockholder loans was $12,000 and $17,000 for the years
ended December 31, 2007 and 2006, respectively. Accrued interest payable was
$33,770 and $21,770 as of December 31, 2007 and 2006, respectively.
NOTE 10 - ACCRUED COMPENSATION
Accrued compensation consists of unpaid salary to certain officers and employees
of the Company. Compensation expense related to accrued and unpaid salary and
NOTE 11 - RESCINDED SERIES B OFFERING PAYABLE
Pursuant to a private placement memorandum, dated October 5, 2001, the Company
offered to sell shares of Series B convertible preferred stock. The Company,
however, did not have a sufficient amount of preferred stock authorized to issue
and sell the Series B convertible preferred stock and had not taken certain
legal steps to designate the terms of the Series B convertible preferred stock.
Accordingly, the Series B convertible preferred stock was invalidly issued and
holders thereof did not own an equity interest in the Company as a result of
their purported investment therein. As a result, the Company was legally
obligated to offer to rescind, or return, the payment made by such holders for
such shares, plus any interest required by applicable state law. Proceeds of
$647,100 were collected in the Series B offering and accounted for as offering
payable from the Company.
In November 2002, the Company consummated its offer to rescind the Series B
offering and refund the original purchase price, or issue replacement shares of
the Company's Series C convertible preferred stock at the proposed offering
price of $.20 per share, at the investors' option. Investors representing
$568,600 elected to receive, and were issued, 2,843,000 replacement shares of
the Series C convertible preferred stock, and investors representing $78,500
elected a cash refund. The Company paid an additional $23,080 of the refunded
proceeds due during 2005 and $0 during 2006, The liability remaining at December
31, 2007 and 2006 is $18,920.
NOTE 12 - RELATED PARTY ADVANCES
During 2006, an officer advanced the Company working capital funds in
anticipation of the receipt of funds from the sale of the State of New Jersey
Tax losses. A total of $160,000 was advanced in increments beginning in August
2006 and ending in December 2006 when the advances were fully repaid. The
officer was also paid approximately $1,600 in interest that was accrued at 8%.
During 2007, an officer advanced the Company working capital funds in the amount
of $25,000 and was repaid.
NOTE 13 - OTHER NOTES PAYABLE
Other notes payable consists of notes payable issued to a law firm in payment of
past due legal fees and accrued interest thereon. The note has a maturity date
of January, 2009 and bears interest at a rate of 8% per annum. Interest expense
related to the note was $13,000 and $11,450 for 2007 and 2006, respectively.
Accrued interest was $35,317 and $25,917 at December 31, 2007 and 2006. In
connection with this note the Company issued warrants to purchase 50,000 shares
of common stock for $.35 per share which were valued at $8,500 and recorded as
debt discount and are being amortized over the note life of 30 months. This
warrant expires in 2015.
F-16
NOTE 14 - STOCKHOLDERS' DEFICIT
A. Capital Stock
The Company is authorized to issue 185,000,000 shares of all classes of capital
stock, including 120,000,000 as common. The Company has authorized 65,000,000
shares of all classes of preferred stock, of which 4,875,850 shares are
designated as Series A and 50,000,000 as Series C.
The Series A and C Convertible Preferred Stock "Series A" and "Series C", with
respect to the terms of such preferred stock, the Board of Directors shall have
the authority by resolution to fix all of the powers, preferences and rights,
and qualifications, limitations and restrictions of the preferred stock.
B. Warrants
The following is a summary of warrants outstanding at December 31, 2007:
Number of Shares
Issue Date Expiration Date of Common Stock Price Basis for Warrant Issuance
----------- --------------- ---------------- --------- -------------------------------------
11/01/02 06/20/08 1,273 $ 11.00 Placement Agent Class C Prefd (a)
03/01/03 02/28/10 2,577 $ 11.00 Accrued Compensation
09/15/04 09/14/14 325,000 $ 1.00 Second Amend Service Agreement (a)
06/25/05 06/24/10 245,000 $ 1.50 Conversion of Note Payable
06/25/05 06/24/10 245,000 $ 2.00 Conversion of Note Payable
06/25/05 06/24/10 2,700,000 $ 1.50 Class A IPO Warrants (b)
06/25/05 06/24/10 2,700,000 $ 2.00 Class B IPO Warrants
06/25/04 06/24/10 270,000 $ 1.20 Underwriter's warrants
11/01/05 06/24/10 250,000 $ 1.50 Media Campaign
11/01/05 06/24/10 250,000 $ 2.00 Media Campaign
12/22/05 12/22/10 24,950 $ 0.40 Bridge Loan Agent
02/14/06 02/13/13 50,000 $ 1.00 25% of NuVim Powder LLC
04/06/06 04/06/10 200,000 $ 0.60 Investor Relation
08/23/06 08/15/15 100,000 $ 0.35 Secured Note Extension
08/23/06 08/15/15 100,000 $ 0.35 Secured Note Extension
11/07/06 08/15/15 50,000 $ 0.35 Note Extension
----------
7,513,800
==========
(a) Includes anti-dilution agreement and cashless exercise right.
(b) Callable at $.25 if common stock trades at $2.00 for five days.
C. Stock Options
The Company adopted six Stock Option Plans (the "Plans") in 2000, 2001, 2002,
two stock option plans in 2005, and one plan in 2006 under which incentive stock
options ("ISOs") and non-qualified stock options ("NQSOs") to acquire shares of
common stock that may be granted to employees, officers, directors and
consultants of the Company. When the 2006 plan was adopted, the prior plans
F-17
were terminated: all previously issued options will remain in effect in
accordance with their original terms but no new options will be issued under
those plans.
Each Plan expires ten years from the date of adoption. Under the currently
operative plan, the Company is authorized to grant options for up to 2,000,000
common shares. Under each Plan, the option price of an ISO may not be less than
the fair market value of a share of common stock on the date of grant. An ISO
may not be granted to a "ten percent stockholder" (as such term is defined in
Section 422A of the Internal Revenue Code) unless the exercise price is at least
110% of the fair market value of the common stock and the term of the option may
not exceed five years from the date of grant. The maximum term of each stock
option granted to persons other than ten percent stockholders is ten years from
the date of the grant.
A summary of the activity in the Plans is as follows:
Weighted-
Average
Number of Exercise
Shares Price
--------- ---------
Outstanding December 31, 2005 1,643,316 $ 1.01
Cancelled (954,669) $
Issued 1,940,000 $ 0.32
---------
Outstanding December 31, 2006 1,643,316 $ 0.58
Cancelled (102,500) $ 1.00
Issued 1,700,000 $ 0.40
---------
Outstanding at December 31, 2007 3,696,147 $ 0.75
=========
Exercisable at December 31, 2007 3,614,483 $ 0.75
=========
Exercisable at December 31, 2006 2,465,318 $ .58
=========
Exercisable at December 31, 2005 1,150,816 $ 1.01
=========
Grant date fair value per option of options issued in:
2007 - $ .29
========
2006 - $ .26
========
The options generally expire 10 years from the date of grant. However, in the
event a participant's employment is terminated for any reason other than the
result of death, disability or retirement, as defined, the options expire 90
days after termination.
If a participant's employment is terminated as a result of death, permanent
disability or retirement, the options expire one year from the date of
termination.
The weighted-average remaining contractual life of options outstanding was 8 and
8.9 years as of December 31, 2007 and December 31, 2006, respectively.
F-18
A summary of the status of the Company's nonvested shares as of December 31,
2007 and 2006, and changes during the year ended December 31, 2007 and 2006 are
presented below:
Weighted-
Weighted- Average
Average Remaining
Fair Contractual
Number of Value at Term
Shares Grant Date (in years)
---------- ------------ ------------
Non-vested shares at December 31, 2005 ...... 492,456 $ 1.00 9.5
Options granted ............................. 1,940,000 --- ---
Options vested .............................. 2,107,506) --- ---
Options forfeited or expired ................ (161,621) --- ---
---------- ------------ ------------
Non-vested shares at December 31, 2006 ...... 163,329 $ 1.00 8.5
Options granted ............................. 1,170,000 --- ---
Options vested .............................. (1,251,664) --- ---
Options forfeited or expired ................ (--) --- ---
---------- ------------ ------------
Non-vested shares at December 31, 2007 ...... 81,665 $ 1.00 8.5
========== ============ ============
As of December 31, 2006, no outstanding options had an exercise price that was
less than the fair value of the Company's common stock. as of December 31, 2005,
there was approximately $438,000 of unrecognized compensation cost related to
non-vested stock option awards, which is expected to be recognized in future
years.
At December 31, 2007, the fair value of stock option grants has been calculated
using the black-scholes method using the following assumptions:
Risk-free rate 3.5% - 4.85%
Dividend yield 0
Volatility factor of the expected market .10% to 90%
Price of the Company's common stock $.20 to 11.00
Average life 5- 7 years
The Black-Scholes option valuation model was developed for use in estimating the
fair value of traded options, which have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of highly
subjective assumptions, including the expected stock price volatility. Because
the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
option, the existing models do not necessarily provide a reliable single measure
of the fair value of its employee stock options.
D. Sales for Cash
On March 1 and 8, 2007, NuVim issued a total of 433,333 shares to an unrelated
accredited investor for $130,000 or $.30 per share. No commissions or fees were
paid in connection with this sale.
On March 8, 2007, three of NuVim's outside directors, purchased an aggregate of
100,000, shares of common stock for $30,000 or $0.30 per share
F-19
At the end of the first quarter of 2007, NuVim received $300,000 from Julius
Baer Multistock SICAV US Stock Fund, a European Institutional Investor to
purchase 1,000,000 shares of common stock at a price of $.30 per share. NuVim
paid a commission of $39,000 to Continental Advisors SA in connection with this
sale.
During April 2007, NuVim issued a total of 972,667 shares of common stock to
unrelated accredited investors for gross proceeds of approximately $291,800 or
$.30 per share. Commissions and fees of approximately $27,000 were paid in
connection with this sale.
On April 10, 2006, Paulsen Investment Company, Inc. the company that served as
underwriter of NuVim's recently completed initial public offering of securities,
and NuVim entered into a Placement Agent Agreement pursuant to which Paulsen
would attempt to place up to 2,500,000 shares (subject to additional allocations
with the consent of Paulsen and NuVim) of NuVim's common stock with accredited
investors. Under the agreement, a commission of seven percent would be paid to
the selling broker and Paulsen would receive an unaccountable expense allowance
of three percent of the total amount placed under the agreement. The agreement
also provided that NuVim would use its best efforts to register the shares to be
sold under the Securities Act of 1933, as amended within 120 business days of
the sale of 2,500,000 shares.
On April 18, 2006, Paulson Investment Company, Inc., the company that served as
underwriter of NuVim's recently completed initial public offering of securities,
purchased 500,000 shares of NuVim's common stock for $100,000.
On May 18, 2006, NuVim accepted twenty-two additional subscriptions resulting
from private placements arranged by Paulson Investment Company, Inc. The
investors purchased 2,470,000 shares of common stock for a total of $494,000. In
addition, Paulson purchased an additional 37,500 shares in exchange for the
cancellation of $7,500 of past due fees. The brokers placed each investment
received a 7% commission and Paulson received a 3% unaccountable expense
allowance. The net cash proceeds from the issuance the 2,970,000 shares of
common stock was $533,875.
All of the cash was used for working capital.
E. Common Stock Issued for Services
During the first quarter of 2007, the Company issued 205,000 shares of common
stock for legal services, consulting services and for the preparation of certain
corporate presentation services. . Compensation expense was recorded in the
amount of $38,400, which was the then fair market value of the shares issued.
During April 2007 NuVim agreed with a communications expert to provide various
services for a total of 26,000 shares of common stock. The services have a value
of approximately $13,000.
On July 12, 2007, NuVim issued 72,000 shares of common stock to its consultant,
James Schnorf, for services to be rendered having a value of $18,720.
During September 2007 the Company issued 36,000 shares of common stock to an
accredited investor for services. The stock had a fair value of approximately
$5,980.
During the fourth quarter of 2007, the Company issued 100,000 shares of common
stock for professional services rendered. Compensation expense was recorded in
the amount of $33,500, which was the then fair market value of the shares
issued.
F-20
During 2006, NuVim issued a total of 175,000 shares of its Common Stock to
NuVim's Secretary as payment for his services for the year ended December 31,
2006. Mark Siegel's relationship to NuVim qualifies him as an accredited
investor. The services for which the shares were issued are valued, pursuant to
agreement between NuVim and Mr. Siegel at approximately $66,000.
During May and June of 2006, NuVim agreed with several organizations to provide
various services for 393,554 shares of common stock. The services have a value
of approximately $144,000. During September 2006, 17,142 shares of common stock
were returned and cancelled due to services not performed valued at
approximately $6,000.
On December 1, 2006, NuVim agreed with a production and operations expert to
provide various services for a total of 100,000 shares of common stock. The
services have a value of approximately $32,000.
On December 1, 2006, NuVim agreed to issue a total of 79,000 shares to two
individuals for their services in seeking strategic partners and merger
candidates. The services have a value of approximately $25,280.
On December 29, 2006, NuVim agreed with its new spokesperson to issue a total of
15,000 shares of common stock as additional compensation for their services. The
shares have a value of approximately $4,800.
F. Stock Issued for Trade Debt
In June 2006, several creditors agreed to accept 331,453 shares of common stock
at a price of $0.35 per share to settle an aggregate of approximately $111,000
of current or past due trade debt.
G. Common Stock issued for Executive Compensation
In January and March 2007, NuVim issued 172,915 shares of common stock payment
of past due salaries and a bonus to the Company's CEO. These shares issued were
in lieu of $46,582 of cash compensation.
On April 20, 2006 NuVim and two current and one retired executives reached
agreement on the number of shares to be granted in lieu of a cash bonus for 2005
and the additional restrictions to be imposed on their ability to sell the
shares. A total of 661,500 shares were granted, 341,500 to Mr. Kundrat, the CEO,
200,000 to John L. Sullivan, the Vice-President of Sales, and 120,000 to Paul
J. Young, until April 1, 2006 the Vice President of Operations and now a member
of the Advisory Board.
Also, during April 2006 a former officer, (Young), of the Company also accepted
9,000 shares of common stock for approximately $3,000 of accrued compensation.
On April 21, 2006 The Company issued 183,955 shares of common stock to its
former CFO for unpaid salary and bonus.
During December 2006, Mr. Kundrat, NuVim's CEO, agreed to accept 392,188 shares
of common stock in lieu of cash payments of $125,500 for part of his executive
bonus for 2006 and 218,750 shares of common stock in lieu of cash payment of his
$43,750 of unpaid 2005 salary.
F-21
H. Common Stock issued on Conversion of Secured Convertible Promissory Notes
In June 2006, the holders of the Secured Convertible Promissory Notes, in the
amount of $67,000, agreed to the conversion of their Notes into an aggregate of
335,000 shares of common stock. In addition, the holders surrendered the
warrants that had been issued in connection with the Notes for cancellation.
In June 2006, a stockholder loan note holder exchanged $37,631 of principal and
accrued interest for 107,631 shares of common stock.
In December 2006, another stockholder loan note holder agreed to convert his
$50,000 note and approximately $8,500 of unpaid interest into 182,983 shares of
common stock.
I. Stock Reserved
At December 31, 2006, the Company had reserved shares of its common stock as
follows:
Common
----------
Exercise of common stock warrants 7,513,800
Exercise of stock options 3,614,483
----------
Total 11,128,283
==========
J. Acquisition of the Remainder of NuVim Powder LLC
On August 23, 2004 NuVim Powder LLC was formed as a condition to a loan greement
with a director and investor, who was also a spokesperson for the ompany. NuVim
Powder LLC was owned 51% by the Company, 12.5% by the pokesperson, 12.5% by the
director and 24% by a related vendor providing roduction services to the
Company, and was to be the exclusive distributor of ood powder products
developed by the Company. The LLC was not active in 2004 nd 2005.
NuVim originally planned to distribute the powder version of its product through
subsidiary of which fifty-one percent was to be owned by NuVim and the balance
wned by Santa Fe Productions Inc., the venture's production company, the
entertainer Dick Clark, and NuVim director Stanley Moger.
During the first quarter of 2006, NuVim acquired all of Santa Fe Productions'
24% interest in the powder subsidiary for a seven year warrant to purchase
50,000 shares of common stock for a dollar a share. The fair value of this
warrant was not significant to these financial statements.
On April 7, 2006 NuVim agreed with Messrs. Clark and Moger to acquire their
respective 12.5% interests in the powder subsidiary for 225,000 shares of NuVim
common stock each. NuVim executed the agreement on April 18. 2006. The NuVim
shares were exchanged for the interests in the powder subsidiary on April 20,
2006.
The value of these shares is approximately $90,000 and has been allocated to an
intangible asset, distribution rights, and in accordance with SFAS 142, the
Company will perform an impairment test
F-22
within the one year of the closing date. In the event that the value of this
intangible asset can not be sustained, the carrying value may be written down to
its then defined fair value. Such charge could be significant in future
periods.
NOTE 15 - INCOME TAXES
Based on the Company's operating losses, no provision for income taxes has been
provided for the years ended December 31, 2007 and 2006. As of December 31,
2007, the Company had net operating losses of approximately $21,200,000 which
expire between the years 2019 and 2027. Due to the Company's initial public
offering there was a change in ownership in accordance with relevant provisions
of the Internal Revenue Code, which are expected to limit the realization of
certain net operating losses under IRC Section 382.
At December 31, 2006 and 2007, the Company had deferred tax assets of
approximately $7,000,000 and $7,400,000, respectively. A valuation allowance for
the full amount of the deferred tax assets was established since it is more
likely than not that all of the deferred tax assets will not be realized.
Deferred tax assets principally consist of net operating losses and accrued
compensation expense.
In December 2007 and 2006, the Company received proceeds from the sale of the
rights to approximately $2,000,00 and $6,275,000 of New Jersey state income tax
losses, respectively. Based on an agreement with the State of New Jersey, the
Company was allowed to allocate and sell their net operating loss representing
$190,000 and $502,599 in 2007 and 2006, respectively, in potential tax benefits
under the Technology Business Tax Certificate Program administered by the New
Jersey Economic Development Authority. The Company received net proceeds of
$164,206 and $442,287 in 2007 and 2006, respectively, related to the sale and
accordingly recorded them as a tax benefit in the year received.
The state of New Jersey renews the program annually and currently limits the
aggregate proceeds to $60,000,000. We cannot be cerain if we will be able to
sell any of our remaining or future New Jersey loss carryforwards or tax credits
under this program.
NOTE 16 - COMMITMENTS
A. Lease
The Company leases office space under an agreement which expires in March 2011,
with annual payments approximating $34,960. During the years ended December 31,
2007 and 2006, rent expense was approximately $53,000 and $58,000, respectively.
C. Employment Agreements
The Company has an employment agreement with its Chief Executive Officer which
provides for an annual salary of $225,000 plus bonus. The agreement
automatically extends for successive and additional one year periods, unless
Employee or Company shall provide a written notice or termination at least 180
days prior to the end of the extended term. .
NOTE 17 - RELATED PARTY TRANSACTIONS
Included in selling, general and administrative expenses are salaries to
immediate family members of an executive officer of the Company of approximately
$53,250 and $48,000 for the years ended December 31, 2007 and 2006,
respectively.
F-23
NOTE 18 - SUPPLEMENTAL CASH FLOW INFORMATION
December 31,
----------------------
2007 2006
-------- ----------
Interest paid $ - $ -
Income taxes paid - -
Non-Cash Financing Activities:
Assignment of senior secured debt
and accrued interest to related party - 2,679,498
Automatic conversion of notes payable - 245,000
Debt extinquished through issuance of stock - 7,679,916
Warrants issued for convertible debt discount - 117,366
Settlement of deferred offering costs - 95,000
Issuance of common stock for services 109,600 250,000
Stock issued for accounts payable and
accrued compensation $ 46,582 $ 147,852
NOTE 19 - SUBSEQUENT EVENTS
In March 2008, the CEO agreed to defer the payment of his accrued compensation
until 2009.
In February and March 2008, the Company issued 410,000 shares of common stock
and 25,000 warrants to purchase shares of common stock at $.25 each. These
shares and warrants were issued for services and will be expensed at the then
fair market value of the shares issued or the value of the services tendered.
In March 2008, the Company issued 294,118 shares of common stock and 147,059
warrants to purchase shares of common stock at $.25 each to an individual for
$50,000 in cash.
In April 2008, the Company entered into an agreement to issue 656,000 shares of
common stock and a $20,000 note payable due on January 15th, 2009 for the
satisfaction of a $184,000 trade payable.
F-24