Attached files
| file | filename |
|---|---|
| EX-31.2 - ECO Building Products, Inc. | ex31-2.htm |
| EX-31.1 - ECO Building Products, Inc. | ex31-1.htm |
| EX-10.7 - ECO Building Products, Inc. | ex10-7.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 2016
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to ______________
Commission file number: 000-53875
Eco Building Products, Inc.
( Exact name of registrant as specified in its charter )
| Colorado | 20-8677788 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S.
Employer Identification No.) |
11568 Sorrento Valley Road #13, San Diego, CA, 92121 |
92121 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (858) 780-4747
| Securities registered under Section 12(b) of the Act: |
| Title of each class: | Name of each exchange on which registered: | |
| None | None. |
Securities registered under Section 12(g) of the Act:
(Title of class)
Common Stock, par value $0.001 per share
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer. | [ ] | Accelerated filer. | [ ] | |
Non-accelerated filer. |
[ ] | Smaller reporting company. | [X] |
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes [ ] No [X]
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of December 31, 2015 was $12,331,234 based upon the price ($0.0001) at which the common stock was last sold as of the last business day of the most recently completed second fiscal quarter, multiplied by the approximate number of shares of common stock held by persons other than executive officers, directors and five percent stockholders of the registrant without conceding that any such person is an “affiliate” of the registrant for purposes of the federal securities laws. Our common stock is traded in the over-the-counter market and quoted on the Over-The-Counter Bulletin Board under the symbol “ECOB.”
As of October 14, 2016 the registrant had 3,969,461,958 shares of common stock, par value $0.001 issued and outstanding.
Documents incorporated by reference: None.
Table of Contents
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K (this “Report”) contains “forward-looking statements” within the meaning of the Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements discuss matters that are not historical facts. Because they discuss future events or conditions, forward-looking statements may include words such as “anticipate,” “believe,” “estimate,” “intend,” “could,” “should,” “would,” “may,” “seek,” “plan,” “might,” “will,” “expect,” “predict,” “project,” “forecast,” “potential,” “continue” negatives thereof or similar expressions. These forward-looking statements are found at various places throughout this Report and include information concerning possible or assumed future results of our operations; business strategies; future cash flows; financing plans; plans and objectives of management; any other statements regarding future operations, future cash needs, business plans and future financial results, and any other statements that are not historical facts.
From time to time, forward-looking statements also are included in our other periodic reports on Forms 10-Q and 8-K, in our press releases, in our presentations, on our website and in other materials released to the public. Any or all of the forward-looking statements included in this Report and in any other reports or public statements made by us are not guarantees of future performance and may turn out to be inaccurate. These forward-looking statements represent our intentions, plans, expectations, assumptions and beliefs about future events and are subject to risks, uncertainties and other factors. Many of those factors are outside of our control and could cause actual results to differ materially from the results expressed or implied by those forward-looking statements. In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements might not occur or might occur to a different extent or at a different time than we have described. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Report. All subsequent written and oral forward-looking statements concerning other matters addressed in this Report and attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this Report.
Except to the extent required by law, we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events, a change in events, conditions, circumstances or assumptions underlying such statements, or otherwise.
Use of Terms
Except as otherwise indicated by the context, references in this report to “Company”, “Eco”, “Eco Building,” “ECOB,” “we”, “us” and “our” are references to Eco Building Products, Inc. All references to “USD” or United States Dollars refer to the legal currency of the United States of America.
| Item 1. | Business |
Our Company
Eco Building Products, Inc. (the “Company”) was incorporated in the state of Colorado under the name N8 Concepts, Inc. on March 27, 2007. As detailed herein, for the fiscal year ended June 30, 2016 and June 30, 2015, the Company experienced revenues of $445,980 and $2,090,084 respectively.
On October 19, 2009, the Company merged with Ecoblu Products, Inc., a Nevada Corporation (“ECOBLU”). For financial reporting purposes, the acquisition was treated as a reverse acquisition whereby ECOBLU’s operations continued to be reported as if it had actually been the acquirer.
ECOBLU was organized May 20, 2009 in Nevada as a wholesale distributor and manufacturer of proprietary wood products coated with an eco-friendly chemistry designed to protect against mold, rot, decay, termites and fire. The Company has also developed an affiliate coating program that allows lumber companies to coat commodity lumber at their facilities contingent upon their stocking the Company’s inventory and supporting the Company’s products.
On April 8, 2011, the Company formed Red Shield Lumber, Inc. (“Red Shield”) in British Columbia, Canada. Red Shield was formed for the purpose of opening a plant in Canada utilizing the Company’s coating process to support sales and distribution. As of June 30, 2016, the wholly owned subsidiary has no operating activity and we do not expect this subsidiary to begin operations in the near future.
On May 31, 2011, the Company formed E Build & Truss, Inc. (“E Build”) in the State of California. E Build was formed for the purpose of operating the Company’s framing labor and truss manufacturing activities. This wholly-owned subsidiary commenced operations during the three months ended December 31, 2011. The assets of this Company were sold in May 2015 pursuant to a Limited Assets Purchase Agreement with Stone Truss, LLC, a California corporation, dated April 15, 2015. Pursuant to the terms of the Limited Assets Purchase Agreement, the Company agreed to sell certain assets owned by E Build for total consideration of $100,000.
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As satisfaction of the $100,000 payment, the Buyer agreed to pay past due lease payments totaling $32,633.94 plus attorney’s fees of $1,500 and the Buyer would then thereafter takeover and make all future lease payments to the landlord. As of the most recent practicable date, the Buyer has not made any payments on this agreement but has paid approximately $41,000 of ECOB accounts payable and has accrued salary of $71,847 and is trying to set-off the amounts owed with the accrued salary. But, as a result of the sale of the assets in May 2015, the operations of E Build have ceased.
In December 2011, the Company formed Seattle Coffee Exchange (“Seattle”) in the State of California. This wholly-owned subsidiary has not commenced its operations as of June 30, 2016, and the Company has no intention of operating Seattle Coffee Exchange.
Business
Products
Eco Building Products, Inc., or “ECOB”, has developed a line of eco-friendly protective wood coatings, Eco Red Shield TM and Eco Clear Shield TM, that extend the lifecycle of framing lumber and other wood products used in the construction of single-family homes and multi-story buildings. The Company has changed its’ product offering breaking up the wood treatment into three different categories to include Eco Red Shield Sill Plate (SP), Eco Red Shield Advanced Framing Lumber (AFL) and Eco Red Shield Fire Treated (FT). These newly created categories allow the customer to choose the level of protection at fair market prices and allows the Company to make significantly better margins on each product. Additionally, the Company has advanced the development and implementation of the Eco D-Fence product line.
Eco Building Products wood coatings are topically applied to a wide range of lumber products providing protection from mold, mildew, fungus, decay, wood rot, wood ingesting insects, including Formosan termites. Eco Red Shield™ (AFL & FT) also serves as a fire inhibitor; significantly increasing treated lumber’s resistance to fire, by way of decreasing the smoke (fire gases) index, slowing ignition time and flame spread.
The ECOB system of coatings is eco-friendly and remains chemically stable over time. The coatings emit virtually zero volatile organic compounds (VOCs), do not leech heavy metals or toxins into groundwater, and do not allow for the growth and propagation of various molds on the cured film surface, that have the potential to contaminate occupant indoor air quality. More importantly, ECOB coatings prevent the degradation of structural lumber that potentially requires existing homes to be periodically renovated resultant of rot and/or insect damage, thereby indirectly preserving our forests.
In early 2015, the Company changed its business model to focus on coating services only and chemical sales. The Company no longer purchases lumber for coating and resells the treated lumber. Customers have their lumber shipped to one of three facilities: (i) Fair Lawn, New Jersey, (ii) Tacoma, Washington; or (iii) Augusta, Georgia. In January 2016, the Company further consolidated operations with the closure of New Jersey and Tacoma facilities and focus mainly on the sale of chemicals to our affiliate network.
Eco Red Shield™
Our proprietary eco-friendly formula controls moisture and protects lumber from mold, mildew, fungus, decay, rot, termites (and other wood boring insects including Formosan termites), while simultaneously serving as a fire inhibitor.
Eco Red Shield™ (SP) “Sill Plate”
Our proprietary eco-friendly formula controls moisture and protects lumber from mold, mildew, fungus, decay, rot, termites (and other wood boring insects including Formosan termites), This product is approved for above ground use and certified under Technical Evaluation Report TER 1511-09.
Eco Red Shield™ (AFL) “Advanced Framing Lumber”
Our proprietary eco-friendly formula controls moisture and protects lumber from mold, mildew, fungus, decay, rot, termites (and other wood boring insects including Formosan termites), while simultaneously serving as a value added fire inhibitor for all framing members of a structure. This product is approved for above ground use and certified under Technical Evaluation Report TER 1511-10.
Eco Red Shield™ (FT) “Fire Treated”
Our proprietary eco-friendly formula controls moisture and protects lumber from mold, mildew, fungus, decay, rot, termites (and other wood boring insects including Formosan termites), while simultaneously serving as a fire inhibitor for Douglas Fir and Spruce (SPF) dimensional lumber. This product is approved for above ground use and certified as alternate to Fire Retardant Treated Wood (FRTW) meeting section 2303.2 of the International Building Code (IBC) as certified under Technical Evaluation Report TER 1510-01.
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Eco D-Fence TM
Eco D-Fence represents your first line of defense against nature’s fury. Developed using Eco Red Shield WoodSurfaceFilmtm technology at the core. Eco D-Fence product line offers all of the protection of mold, mildew, fungus, decay, rot, termites (and other wood boring insects including Formosan termites) with optional fire inhibitor coupled with traditional features of exterior stain. For a similar cost of typical fence stain, now you can get value added protection that is environmentally friendly. The optional fire inhibitor extends the protection to create a fire break around the perimeter of your property. Currently this product is being sold to affiliates for factory application.
Markets
In January of 2016 Management took steps to narrow its focus to chemical product development, manufacturing and sales. Effectively re-engineering its entire business model and closing its treating operations. While Eco’s chemistry can be applied to many diverse materials, to-date it has purposefully limited its attention to the various wood preservation markets. The Company views its current targeted market opportunity in two large sectors: 1) The overall softwood lumber market for which there has been no cost effective protection chemistry or technology heretofore and 2) the traditional wood preservation market. We believe Eco Building Products is uniquely positioned to disrupt both sectors.
Eco Building Products chemistry can be applied to any wood substrate where the end-user desires protection against the risks associated with mold, wood rot, termites and fire and hence the market opportunity is extremely large.
Total U.S. lumber consumption is projected to rise strongly, moving from 44.1 billion board feet in 2015 (nominal, or 70.8 million m3 net) to 47.1 billion bf in 2016 and to almost 50 billion bf in 2017. – According to the Wood Business 2016 Lumber Outlook report.
The Company recognizes the magnitude of the overall opportunity but has limited its focus to fencing and wood frame construction used in new single and multi-family residential; light commercial construction as well as renovation through multiple channels including wholesale distribution, pro-lumber dealers, large lumber traders and home centers. The Company sells these channels through licensed Affiliates that buy and apply its chemistry on a regional and OEM basis.
Eco Red Shield™ can be factory applied to all wood substrates for the entire super-structure prior to construction, preserving the wood’s structural integrity, while only adding an estimated 10% to 30% to the cost of building materials.
The Company understands that the traditional wood preservation and or treating industry currently comprise approximately six to eight percent of the overall lumber industry. Traditional wood preservation is performed in a cylinder under pressure or vacuum process. Its limited market penetration is due in large part to the cost of this process and that it fundamentally degrades the strength of wood fiber while potentially employing hazardous chemicals. Eco Red Shield is topically applied, employs no heavy metals, 2B carcinogens, heavy aldehydes or solvents and does not degrade the strength of wood fiber.
Management has taken steps in 2015 to certify its products by independent third party. In December 2015, the Company announced that it had obtained Technical Evaluation Reports (TERs) from DrJ Engineering certifying that its core products Eco FT™ (Fire Treated), Eco Red Shield AFL ™ (Advanced Framing Lumber) and Eco Red Shield SP ™ (Sill Plate) are compliant with 2009, 2012 and 2015 versions of the International Building Code and International Residential Code. DrJ Engineering is an ANSI ISO/IEC 17065 accredited certification body and compliant with IBC Section 1703.
The Company has benefited from various code approvals allowing Eco Red Shield to compete with the current wood preservation market and has invested a significant resources aimed at continually improving the Eco Red Shield product line with R&D and technical market acceptance. Through the use of independent wood scientists employed by the company, we have successfully lobbied with the International Code Commission (ICC) to create an acceptance criteria (AC) defining a market space in the building codes for a topical borate treatment for wood members. On June 20, 2011 the ICC adopted, by unanimous vote, a new Acceptance Criteria for Liquid Borate Fungal Decay and Termite-resistant Treatment Applied to Wood Members, AC433-0611-R1. This acceptance criteria was subsequently updated in June of 2012 to include structural wood fiber testing and was adopted into the 2012 Uniform Building Code (UBC). Eco Red Shield successfully achieved building code acceptance as deemed by the International Code Commission (ICC-ES) meeting the requirements as set forth by AC433, resulting in the issuance of an Engineering Services Report ESR-3255 on July 2, 2012.
The evaluation report (ESR-3255) from ICC Evaluation Service (ICC-ES), provided evidence that Eco Red Shield protection against Wood Ingesting Organisms including Formosan Termites and Wood-Rot Decay now meets building code requirements. Additionally, the product provides value added protection from Mold and Fire Inhibition. Building officials, architects, contractors, specifiers, designers and others utilize ICC-ES Evaluation Reports to provide a basis for using or approving Eco Red Shield coated lumber products in construction projects under the “AC433” Acceptance Criteria. The creation of a building code (AC433) and the subsequent ESR-3255, addresses a key element (Termite Protection – Wood Rot/Decay) in the wood protection offered by Eco Building products and has started to open up significant market opportunities.
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Eco Red Shield treated lumber products now meet industry standard Use Categories UC1, UC2 and UC3a as defined by the AWPA guidelines for usage of treated lumber. These use categories define the product use for above ground, (anchored to concrete not exposed to constant wetting) which is the most common use for sill plates and exterior decking. Approximately 65% of the treated wood components sold annually fall into the UC1, UC2 and UC3a & b use categories opening up significant opportunities for Eco Red Shield products as a direct substitute or competitive product. Having achieved an ESR designation as defined by the ICC-ES process allows for product recognition by every building official across the United States as well as over 220 countries worldwide. (Source: www.iccsafe.org)
On September 4, 2012, the Company successfully achieved QAI Laboratories (QAI) listing B1053-1, providing evidence that Eco Red Shield’s fire protection qualities now meet building code requirements for Class “A”, structural rated, flammability performance on Douglas Fir solid sawn lumber, making Eco Red Shield protected lumber an alternate to the traditionally accepted fire retardant treated wood (FRTW) for interior use. On April 26, 2016, the Company was successful in testing and qualifying Spruce (SPF) species to be added to our approvals for use as an alternate for FRTW uses.
Achieving the QAI listing for flame spread properties makes Eco Red Shield protection the first topical wood treatment of its kind for interior Class “A” flammability. Additionally, providing protection against Wood Ingesting Organisms including Formosan Termites and Wood-Rot Decay to meet building code requirements. Building officials, architects, contractors, specifiers, designers and others utilize QAI listings and product labeling to provide a basis for using or approving Eco Red Shield coated lumber products in construction projects under the International Building Code. The Company will continue to qualify other species and panel products for similar ratings. The Company has also received approval for Eco Red Shield in Hawaii and the City of Los Angeles to achieve the issuance of an LA Research Report.
In 2013, the Company engaged with QAI Laboratories, a similar consumer rating and product monitoring agency as Underwriters Laboratories (UL), to certify the coating process and provide a listing for the fire efficacy of Eco Red Shield treated lumber products.
The Company has further engaged QAI Laboratories as the third party factory Quality Control auditing company, providing audit services and third party inspections to all ESR listed facilities, and facilities producing Eco Red Shield for the purposes of satisfying FRTW lumber per ASTM E84 requirements. Eco Red Shield is now successfully qualified to produce code approved lumber products in five locations across the country. Having the ability to stamp/label the lumber with the equivalence to traditional pressure treated lumber presents enormous opportunities in the supply chain, and not limited to, Big Box Retailers, national homebuilding supply companies, wholesalers and manufacturers.
Patents: The Company previously had a patent pending filing in the USA and Canada. Our patent pending Pub file no in USA: 2012/0121809 A1 in Canada our application no: 2,757,126 – The title of our patent pending is as follows: FORMULATION AND PROCESS FOR TREATING WOOD SUBSTRATES. The Company received examiner comments but the patent application was abandoned due to our failure to respond. Although, we have not revived the patent as of today, we are working with a patent attorney to file a petition to revive. We do not, however, know when that petition will be filed.
Trademarks: The Company has filed for trademark protection on various service marks in several categories to include the “Eco” logo, “Eco Red Shield” name, “FRC Technology” - Fire Retardant Coatings and “Wood Surface Film” technology.
Affiliates Relationships: We have three affiliates that are approved to produce our Eco Red Shield product in various locations around the USA. We have formal written agreements with one of these affiliates while the other two affiliates purchase chemical concentrates and adhere to our quality control program. Revenues that are generated from our affiliates are booked as chemical sales. The Company has also developed an affiliate coating program that allows lumber companies to coat commodity lumber at their mills/facilities.
Competitive Advantages
Management believes the Company is positioned to penetrate both the unprotected, overall softwood lumber market as well as the incumbent wood preservation market (pressure treated).
Traditional wood preservation technology employs a mechanical impregnation process of pounding wood fiber with water bourn chemicals under extreme pressure which breaks down its cellular structure, substantially degrading strength values. In addition, many of these chemicals have been identified as toxic. As a result, treated lumber has been limited in its application and makes whole house protection impractical and or undesirable.
In contrast, Eco Red Shield™ impregnates wood fiber thru the process of diffusion whereby environmentally friendly chemicals are encased in a semi-permeable barrier that allows it to breathe while locking in mold, termite, rot and fire protections.
At the same time the semi-permeable barrier minimizes naturally occurring formaldehyde off-gassing. The process and chemistry has no adverse effect on strength values and puts whole house protection within reach of the average homeowner.
There is a growing awareness and latent demand that stems from the importance of indoor air quality (IAQ); the structural risks associated with wood decay from termites and rot and the heightened risks from fire with modern construction materials and techniques.
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| ● | Red Shield is the only application that is proven to protect across all four risk dimensions of mold, rot, insects and fire. | |
| ● | Eco’s proprietary, patent pending chemistry results in NO strength degradation, allowing the entire wood structure to be protected which is something no competitor has been able to duplicate to date. | |
| ● | Eco’s chemistry is the ONLY application with virtually no VOC leaching, no metals or copper sulfates. It carries a Level 1 health rating from the NFPA and Eco treated lumber emits less formaldehyde than raw lumber: Low emissions of volatile organic compounds in compliance with UL 2818 for indoor commercial, educational, residential and healthcare environments. Tested in accordance to ASTM D5116 – Small Scale Environmental Chamber Determinations of Organic Emissions from indoor Materials and D5197 – Test Method for Determination of Formaldehyde and other Carbonyl Compounds in Air. Meets California 01350 limits for formaldehyde emissions. |
Competition
We believe that our products are positioned to capture significant market share of the current non-treated wood market. The treated wood market is mature with large established chemical manufacturers, with functionally equivalent technologies and fierce competition. However, we appear to have a unique product with a combination mold, rot, decay, termite and fire inhibitor that meets HUD standards for above ground structural and sheathing wood components.
Chemical supply to the Wood Preservation Industry is dominated by four incumbent players – Koppers, Inc., Hoover Treated Wood Products, Inc., Viance and Arch/Lonza Chemicals, Inc. It is likely that competitors will field their own offerings, and while a few already exist in partial or equivalent form to Eco Red Shield™, none have successfully commercialized a complete alternative.
It is likely that competitors will field their own offerings, and a few already exist in partial or equivalent form, such as FrameGuard and Wolman® AG wood treatment offered by Arch/Lonza Chemical, TRUE-CORE® offered by Kop-Coat and Nature Wood offered by Osmose, Inc. These products and more are continuing to show up in the market resultant of the many years ECOB has spent identifying the need for topical coatings. To date none of these topical coatings have the full suite of protection offered by Eco Red Shield. These chemical companies sell to independent wood treaters and lumberyards. The unique position of ECOB is to provide protection to the wood framing components that never before employed any such protection. Being able to offer the treatment at a reasonable cost value proposition will be an ECOB competitive advantage. ECOB’s vision is providing protection to the majority of wood framed structures that nobody, up until now, has paid attention to.
The Fire Pressure Treating Industry is dominated by three incumbent players – Koppers, Inc., Hoover Treated Wood Products, Inc. and Arch/Lonza Chemicals, Inc. It is likely that competitors will field their own offerings, and a few already exist in partial or equivalent form, such as FrameGuard offered by Arch/Lonza Chemical and Nature Wood offered by Osmose, Inc.
Employees
As of June 30, 2016, we had 4 full time employees consisting of Mr. Tom Comery, our Chief Executive Officer, Mr. Mark Vuozzo, our Chief Technical Officer, a Controller and a Production Coordinator.
After our fiscal year end of June 30, 2015, we hired a part-time Chief Financial Officer, Mr. Randall Smith who devoted approximately 20 hours per week to our business. As of September 13, 2016, Mr. Randall Smith has resigned as the Company’s Chief Financial Officer. Tom Comery has assumed the duties as Chief Financial Officer in the interim.
We expect to continue to use contract labor, management consultants, attorneys, accountants, engineers, and other professionals as necessary to support our management and administrative requirements. The need for employees and their availability will be addressed on a continuing basis.
Governmental Regulation
The use of assets and/or conduct of business that we are pursuing will be subject to environmental, public health and safety, land use, trade, EPA and other governmental regulations, as well as state and/or local taxation. The coating product offered by the Company, Eco Red Shield, falls into the “Treated Article Exemption 40 CFR 152.25(a) as stated by the EPA. The company has taken all necessary steps including legal review of all claims made to assure strict compliance for product claims meeting the treated article exemption. Furthermore, compliance with product labeling of all constituents employed in the manufacturing have been reviewed by third party consultants to insure proper use as specified by product manufacturers. These consultants ensure that product labeling is in strict compliance with local, state and federal regulations as represented in the original manufacturer - or supplier-published materials. In acquiring and/or developing businesses in the wood treatment industry, management will endeavor to ascertain, to the extent possible due to its current limited resources, the effects of such government regulation on our prospective business. In certain circumstances, however, such as the acquisition of an interest in a new or start-up business activity, it may not be possible to predict with any degree of accuracy the impact of all potential government regulation. Additionally, ECOB complies with Rules and Regulations of the Securities and Exchange Commission.
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WHERE YOU CAN GET ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy our reports or other filings made with the SEC at the SEC’s Public Reference Room, located at 100 F Street, N.E., Washington, DC 20549. You can obtain information on the operations of the Public Reference Room by calling the SEC at 1-800-SEC-0330. You can also access these reports and other filings electronically on the SEC’s web site, www.sec.gov.
| Item 1A. | Risk Factors |
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and are not required to provide the information under this item.
An investment in the Company’s common stock involves a high degree of risk. One should carefully consider the following risk factors in evaluating an investment in the Company’s common stock. If any of the following risks actually occurs, the Company’s business, financial condition, results of operations or cash flow could be materially and adversely affected. In such case, the trading price of the Company’s common stock could decline, and one could lose all or part of one’s investment. One should also refer to the other information set forth in this report, including the Company’s consolidated financial statements and the related notes.
RISKS RELATED TO OUR BUSINESS
You should carefully consider the risks described below together with all of the other information included in this report before making an investment decision with regard to our securities. The statements contained in or incorporated into this annual report on Form 10-K that are not historic facts are forward-looking statements that are subject to risks and uncertainties that could cause actual results to differ materially from those set forth in or implied by forward-looking statements. If any of the following risks actually occur, our business, financial condition or results of operations could be harmed. In that case, the trading price of our common stock could decline, and you may lose all or part of your investment
WE RELY ON TRADE SECRET LAWS AND AGREEMENTS WITH OUR KEY EMPLOYEES AND OTHER THIRD PARTIES TO PROTECT OUR PROPRIETARY RIGHTS, AND THESE LAWS OR AGREEMENTS MAY NOT ADEQUATELY PROTECT OUR RIGHTS.
We have acquired license rights for our treatment of wood, and may acquire or develop other products and processes that it believes may be patentable. Our success depends upon our ability to protect our proprietary formulations and license rights. We rely on a combination of trademark and trade secret laws, nondisclosure and other contractual agreements with employees and third parties to protect our proprietary formulations and trademarks. The steps we take to protect our proprietary rights may not be adequate to protect misappropriation of such rights, and third parties may independently develop equivalent or superior formulations in spite of our efforts. We have no patents, and existing trade secret and copyright laws provide only limited protection. We may be subject to or may initiate interference proceedings in the United States Patent and Trademark Office, which can demand significant financial and management resources. Although we believe that our products and formulations do not infringe upon the proprietary rights of others, it is possible that third parties will assert infringement claims against us in the future. Litigation, which could result in substantial costs and could divert our efforts, may be necessary to enforce our intellectual property rights or to defend us against claimed infringement of the rights of others. The failure to obtain necessary licenses or other rights or litigation arising out of infringement claims could have a material adverse effect on our business operations. However, we can give no assurance that our confidentiality agreements will be enforced or that competitors will not independently develop similar formulas or processes.
IF WE CANNOT SUCCESSFULLY COMPETE WITH EXISTING WOOD PRODUCING COMPANIES THAT HAVE GREATER RESOURCES THAN WE HAVE, OUR BUSINESS WILL NOT SURVIVE.
The wood protection industry is highly competitive. Virtually all of the manufacturers, distributors and marketers of wood products have substantially greater management, financial, research and development, marketing and manufacturing resources than we do. We face competition in all of our markets from large, national companies and smaller, regional companies, as well as from individuals. Many of our competitors are larger and have greater financial resources. We from time to time will experience price pressure in certain of our markets as a result of competitors’ promotional pricing practices. Competition is based on product quality, functionality, price, brand loyalty, effective promotional activities and the ability to identify and satisfy emerging preferences.
OUR DISCLOSURE CONTROLS AND PROCEDURES ARE NOT ADEQUATE.
Our management evaluated, with the participation of our Chief Executive Officer, the effectiveness of our disclosure controls and procedures as of the end of our fiscal year ended June 30, 2016. Based on this evaluation, our Chief Executive Officer concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)) are not adequate to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
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We do not have adequate personnel to provide required review of day-to-day financial transactions and review of financial statement disclosures. To remediate the control deficiencies, one of several specific additional steps that we believe we must undertake is to retain a consulting firm to, among other things, design and implement adequate systems of accounting and financial statement disclosure controls to comply with the applicable SEC requirements. There is no assurance that we will be able to implement these plans in the future, if at all.
WE WILL REQUIRE ADDITIONAL FUNDS THROUGH THE SALE OF OUR SECURITIES, WHICH REQUIRES FAVORABLE MARKET CONDITIONS AND INTEREST IN OUR ACTIVITIES BY INVESTORS. WE MAY NOT BE ABLE TO SELL OUR SECURITIES AND FUNDING MAY NOT BE AVAILABLE FOR CONTINUED OPERATIONS.
We will require substantial additional capital following the development and implementation of our business in order to market, arrange for the sale of our products. Because we expect to have limited cash flow from operations during the next twelve months, we will need to raise additional capital, which may be in the form of loans from current stockholders and/or from public and private equity offerings. Our ability to access capital will depend on our success in implementing our business plan. It will also depend upon the status of the capital markets at the time such capital is sought. Should sufficient capital not be available, the implementation of our business plan could be delayed and, accordingly, the implementation of our business strategy would be adversely affected. If we are unable to raise additional funds in the future, we may have to cease all substantive operations. In such event it would not be likely that investors would obtain a profitable return on their investment or a return of their investment at all.
WE HAVE BEEN THE SUBJECT OF A GOING CONCERN OPINION FROM OUR INDEPENDENT PUBLIC ACCOUNTANTS, RAISING A SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
Our independent registered public accountants included an explanatory paragraph in their audit report in connection with our financial statements for the fiscal years ended June 30, 2016 and 2015 stating that because we had recurring losses from operations, negative cash flows from operations and a working capital deficit, there is substantial doubt about our ability to continue as a going concern. These factors, along with others, may indicate that we will be unable to continue as a going concern for a period of twelve months or less. Reports of independent auditors questioning a company’s ability to continue as a going concern are generally viewed unfavorably by analysts and investors, and this report may make it difficult for us to raise additional debt or equity financing necessary to continue the development of our business plan.
Our continuation as a going concern is dependent on our ability to raise additional funds through private placements of equity and/or debt sufficient to pursue our business plan, to meet our current obligations and to cover operating expenses through June 30, 2017, our fiscal year end. There is no assurance that we will be able to secure additional funding in the future, and in the event we are unable to raise additional capital in the near future, it is probable that any investment in our Company will be lost.
WE MAY ENGAGE IN TRANSACTIONS INVOLVING THE USE OF LEVERAGE, WHICH MAY EXPOSE US TO SIGNIFICANT RISKS.
We anticipate that we may incur substantial borrowings for the purpose of purchasing inventory and equipment, and for financing our expansion and growth. Any amounts borrowed will depend, among other things, on the condition of financial markets. The purchase of equipment and inventory, and the expansion of our business on a leveraged basis generally can be expected to be profitable only if they generate, at a minimum, sufficient cash revenue to pay interest on, and to amortize, the related debt, to cover operating expenses and to recover the equity investment. The use of leverage, under certain circumstances, may provide a higher return to shareholders but will cause the risk of loss to shareholders to be greater than if we did not borrow, because fixed payment obligations must be met on certain specified dates regardless of the amount of revenues derived by our operation. If debt service payments are not made when due, we may sustain the loss of our equity investment in the assets securing the debt as a result of foreclosure by the secured lender. Interest payable on our borrowings, if any, may vary with the movement of the interest rates charged by banks to their prime commercial customers. Any increase in borrowing costs due to a rise in the “prime” or “base” rates may reduce the amount of our net income and available cash.
ATTEMPTS TO GROW OUR BUSINESS COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS OPERATIONS.
Because of our small size, we desire to grow rapidly in order to achieve certain economies of scale. To the extent that rapid growth does occur, it will place a significant strain on our financial, technical, operational and administrative resources. Our planned growth will result in increased responsibility for both existing and new management personnel. Effective growth management will depend upon our ability to integrate new personnel, to improve our operational, management and financial systems and controls, to train, motivate and manage our employees. If we are unable to manage growth effectively, our business, results of operations and financial condition may be materially and adversely affected. In addition, it is possible that no growth will occur or that growth will not produce profits. Our success will, in part, be dependent upon our ability to manage growth effectively.
OUR LACK OF PRODUCT AND BUSINESS DIVERSITY COULD INHIBIT OUR ABILITY TO ADAPT OUR BUSINESS TO INDUSTRY CHANGES AND DEVELOPMENTS.
We are currently only engaged in the chemical treatment of wood industry. Additionally, our efforts to date have been concentrated in the North American market. This lack of diverse business operations exposes us to significant risks.
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Our future success may be dependent upon our success in developing and expanding our areas of concentration and upon the general economic success of the chemically treated wood industry. In addition, decline in the market demand for our products could have a material adverse effect on our brand, business, results of operations and financial condition.
OUR CONTINUED GROWTH DEPENDS ON RETAINING OUR CURRENT KEY EMPLOYEES, AND WE MAY NOT BE ABLE TO CONTINUE TO DO SO.
Our success is largely dependent upon the efforts and abilities of Tom Comery, our Chief Executive Officer, President and director of the Company. The loss of the services of Mr. Comery or other members of our senior management may significantly delay or prevent the achievement of product development and other business objectives, and it is possible that we would not be able to replace them adequately. Mr. Comery may resign at any time or we may terminate his employment at any time, and if we lose the services of, or do not successfully recruit adequate replacement personnel, the growth of our business could be substantially impaired. At present, we do not maintain key person insurance for Mr. Comery or any of our senior management.
WE MAY NOT BE ABLE TO ATTRACT OR RETAIN QUALIFIED SENIOR PERSONNEL.
We believe we are currently able to manage our current business with our existing management team. However, as we expand the scope of our operations, we will need to obtain the full-time services of additional senior management and other personnel. Competition for highly skilled personnel is intense, and there can be no assurance that we will be able to attract or retain qualified senior personnel. Our failure to do so could have an adverse effect on our ability to implement our business plan. As we add full-time senior personnel, our overhead expenses for salaries and related items will increase from current levels and, depending upon the number of personnel we hire and their compensation packages, these increases could be substantial.
UNCERTAINTY AND ADVERSE CHANGES IN THE GENERAL ECONOMIC CONDITIONS OF MARKETS IN WHICH WE PARTICIPATE MAY NEGATIVELY AFFECT OUR BUSINESS.
Current and future conditions in the economy have an inherent degree of uncertainty. It is even more difficult to estimate growth or contraction in various parts, sectors and regions of the economy, including the markets in which we participate. As a result, it is difficult to estimate the level of growth or contraction for the economy as a whole. Adverse changes may occur as a result of soft global economic conditions, oil prices, wavering consumer confidence, unemployment, declines in stock markets, contraction of credit availability, or other factors affecting economic conditions in general. These changes may negatively affect the sales of our products, increase exposure to losses from bad debts, increase the cost and decrease the availability of financing, or increase costs associated with manufacturing and distributing our wood protection products.
WE HAVE NOT AND DO NOT ANTICIPATE PAYING DIVIDENDS IN THE FORESEEABLE FUTURE.
We have not declared any cash dividends to date with respect to our Common Stock, Preferred C Series and Preferred D series Stock. We do not anticipate paying dividends on our Common Stock in the foreseeable future since we will use all of our earnings, if any, to finance the development of our operations.
OUR QUARTERLY OPERATING RESULTS ARE LIKELY TO FLUCTUATE, WHICH MAY AFFECT OUR STOCK PRICE.
Our quarterly revenues, expenses, net sales, net income, operating results and gross profit margins vary significantly from quarter to quarter. As a result, our operating results may fall below the expectations of securities analysts and investors in some quarters, which could result in a decrease in the market price of our Common Stock. The reasons our quarterly results may fluctuate include, among other factors, the following:
| ● | variations in profit margins attributable to product mix; | |
| ● | changes in the general competitive and economic conditions; | |
| ● | delays in, or uneven timing in the delivery of, customer orders; and | |
| ● | the introduction of new products by us or our competitors. |
Our planned operating expenditures each quarter are based on sales forecasts for the quarter, however period to period comparisons of our results should not be relied on as indications of future performance. If sales do not meet expectations in any given quarter, operating results for the quarter may be materially and adversely affected.
IF AND WHEN WE SELL OUR PRODUCTS, WE MAY BE LIABLE FOR PRODUCT LIABILITY CLAIMS.
The chemical coating of wood that we are developing may expose us to potential liability from personal injury or property damage claims by end-users of our products. There is no assurance that our product liability insurance will be adequate to protect us against the risk that in the future a product liability claim or product recall could materially and adversely affect our business.
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Inability to obtain and maintain sufficient insurance coverage at an acceptable cost or otherwise to protect against potential product liability claims could prevent or inhibit the commercialization of our products. Moreover, even if we maintain adequate insurance, any successful claim could materially and adversely affect our reputation and prospects, and divert management’s time and attention. If we are sued for any injury allegedly caused by our future products our liability could exceed our total assets and our ability to pay the liability.
Risks Related to our Common Stock
OUR COMMON STOCK IS CLASSIFIED AS PENNY STOCK, AND IT CONTINUES TO BE EXTREMELY ILLIQUID, SO INVESTORS MAY NOT BE ABLE TO SELL AS MUCH STOCK AS THEY WANT AT PREVAILING MARKET PRICES.
Our Common Stock is currently generally classified as a penny stock. Penny stocks generally include equity securities with a price of less than $5.00 that trade on the over-the-counter market. As a result, an investor may find it more difficult to dispose of or obtain accurate quotations as to the price of the securities that are classified as penny stocks. The “penny stock” rules adopted by the Commission under the Exchange Act subject the sale of the shares of penny stock issuers to regulations that impose sales practice requirements on broker-dealers, causing many broker-dealers to not trade penny stocks or to only offer the stocks to sophisticated investors that meet specified net worth or net income criteria identified by the Commission. These regulations contribute to the lack of liquidity of penny stocks.
OUR STOCK PRICE AND TRADING VOLUME MAY BE VOLATILE, WHICH COULD RESULT IN LOSSES FOR OUR STOCKHOLDERS.
The equity trading markets may experience periods of volatility, which could result in highly variable and unpredictable pricing of equity securities. The market of our Common Stock could change in ways that may or may not be related to our business, industry or operating performance and financial condition. In addition, the trading volume in our Common Stock may fluctuate and cause significant price variations to occur. Some of the factors that could negatively affect our share price or result in fluctuations in the price or trading volume of our Common Stock include:
| ● | Actual or anticipated quarterly variations in our operating results; | |
| ● | Changes in expectations as to our future financial performance or changes in financial estimates, if any; | |
| ● | Announcements relating to our business or the business of our competitors; | |
| ● | Conditions generally affecting the wood treatment industry; | |
| ● | The success of our operating strategy; and | |
| ● | The operating and stock performance of other comparable companies. |
Many of these factors are beyond our control, and we cannot predict their potential effects on the price of our Common Stock. We cannot assure you that the market price of our Common Stock will not fluctuate or decline significantly.
FINRA SALES PRACTICE REQUIREMENTS LIMIT A STOCKHOLDERS’ ABILITY TO BUY AND SELL OUR STOCK
The Financial Industry Regulatory Authority, Inc. (FINRA) has adopted rules which require that in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer. Prior to recommending speculative low priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative low priced securities will not be suitable for at least some customers. FINRA requirements make it more difficult for broker-dealers to recommend that their customers buy our Common Stock, which has the effect of reducing the level of trading activity and liquidity of our Common Stock. Further, many brokers charge higher transactional fees for penny stock transactions. As a result, fewer broker-dealers are willing to make a market in our Common Stock, reducing a stockholders’ ability to resell shares of our Common Stock.
| Item 1B. | Unresolved Staff Comments |
None.
| Item 2. | Properties |
We maintain our official US address of record at 11568 Sorrento Valley Road #13, San Diego, CA. We currently pay $2,807 a month in rent with an additional amount of $963 for common area maintenance. We do not own any properties and at this time have no agreements to acquire any properties.
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Corporate Headquarters
In February 2016, the Company entered into an agreement to lease office facilities with a small warehouse at our San Diego, CA location. The term of the lease is for three years. The initial monthly installment of base rent amount was calculated by multiplying the initial monthly base rental rate per rentable square foot amount by the number of rentable square feet of space in the premises. In all subsequent base rent payment periods during the lease term commencing on March 1, 2017, the calculation of each monthly installment of base rent amount reflects an annual increase of three and one half percent (3.5%). The details on the lease are as follows:
| ● | Base rentals - $2,807 per month | |
| ● | Base rental increase of 3.5% per year | |
| ● | Company is responsible to pay its proportionate share of common area maintenance – estimated at $963 per month | |
| ● | Termination date – April 30, 2019 | |
| ● | Renewal Option – Yes | |
| ● | Security Deposit - $9,333 |
Operations Facilities
The Company also maintains three facilities of operation. The following locations are currently leased and in effect.
| ● | Augusta, Georgia (Periodic Month to Month Tenancy as of July 2016) | |
| ● | Month to month agreement was entered into and agreed upon | |
| ● | We pay a monthly lease payment of $3,000 | |
| ● | We can use the premises for processing and treatment of wood and wood products, but is currently used as a storage facility |
| Item 3. | Legal Proceedings |
Except as disclosed below, we are currently not involved in any litigation that we believe could have a materially adverse effect on our financial condition or results of operations. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the executive officers of our company or any of our subsidiaries, threatened against or affecting our company, our common stock, any of our subsidiaries or of our company’s or our company’s subsidiaries’ officers or directors in their capacities as such, in which an adverse decision could have a material adverse effect.
At June 30, 2016, the Company owed approximately $730,000 in past due federal and state payroll taxes, of which approximately $660,000 is due to the Internal Revenue Service (IRS). The Company subsequently paid $25,000 to the IRS under a $20,000 per month payment arrangement which the Company is in default. The Company continues to negotiate with the IRS to re-establish a payment plan for past due taxes. Currently the IRS has acknowledged the situation and so far, has set an expectation that we must stay current with our federal and state taxes. The Company continues to stay current with state and federal payroll tax liabilities. No such arrangement exists for State tax purposes.
On October 6, 2015, the landlord for the Vista, CA location filed a complaint against us in the Superior Court of California, County of San Diego for a Breach of Contract for a Promissory Note that we issued to him in connection with unpaid lease payments that we owed in the amount of $151,272.65 under the terms of the lease that we entered into for our Vista, CA location. As of June 30, 2016, no payments have been made against this obligation.
On May 27, 2016, the prior landlord of the Tacoma, WA, facility obtained a judgment for the collection of unpaid rent in the amount of 168,998 inclusive of interest & attorney fees.
On or about October 15, 2016, A Summons & Complaint has been filed for the sum of $31,118 pertaining to a default on a contract with World Global Financing.
| Item 4. | Mine Safety Disclosures |
Not Applicable.
| Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
Market Information
Our Common Stock is quoted on the OTC Pink Market under the symbol “ECOB”.
Price Range of Common Stock
The table below sets forth the high and low closing price per share of our common stock for each quarter of our last two years. These prices represent inter-dealer quotations without retail markup, markdown, or commission and may not necessarily represent actual transactions.
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| Fiscal Quarter Ended | High | Low | ||||||
| June 30, 2016 | $ | 0.0002 | $ | 0.0001 | ||||
| March 31, 2016 | $ | 0.0002 | $ | 0.0001 | ||||
| December 31, 2015 | $ | 0.0002 | $ | 0.0001 | ||||
| September 30, 2015 | $ | 0.0022 | $ | 0.0002 | ||||
| June 30, 2015 | $ | 0.0185 | $ | 0.0020 | ||||
| March 31, 2015 | $ | 0.0069 | $ | 0.002 | ||||
| December 31, 2014 | $ | 0.014 | $ | 0.002 | ||||
| September 30, 2014 | $ | 0.046 | $ | 0.012 | ||||
Approximate Number of Equity Security Holders
At June 30, 2016, there were approximately 114 holders of record of our Common Stock. Because shares of our common stock are held by depositaries, brokers and other nominees, the number of beneficial holders of our shares is substantially larger than the number of stockholders of record.
There are 20,000,000 warrants outstanding to purchase shares of our Common Stock subject to conditions and limitations. See note 8 - Options
There were no warrants issued during the year of 2016.
Stock Option Grants
| - | The Company had, previous to 2016, issued 800,000 shares as options to the Chief Technical Officer which are outstanding as of June 30, 2016 |
| - | The Company granted 25,000,000 shares as options to a consultant in fiscal 2015 which have expired. |
| - | As partial consideration for the Executive Severance Agreement and General Release of All Claims Agreement (the “Separation Agreement”) entered into between ECOB and Steve Conboy on June 15, 2015, the Company issued an option to purchase 5,772,857 shares which equals one percent (1%) of the total number of shares outstanding on the date of the Separation Agreement with an exercise price of $0.0038 (which is the closing price on the date of the grant). This option grants vests as follows: (i) 50% vested immediately; and (ii) 50% vests on December 18, 2015. As of June 30, 2016, Steve Conboy has not chosen to exercise this option. |
Unregistered Sales of Equity Securities
Series D Preferred Stock Financing
On March 31, 2015, we filed a Certificate of Designations for Series D Preferred Stock which authorized 10,000 shares of a newly-created Series D 12% Convertible Preferred Stock, par value $0.001 per share (the “Preferred D Stock”).
The terms of the Preferred D Stock are as follows:
| ● | The Preferred D Stock shall have no voting rights. | |
| ● | The Preferred D Stock is convertible at any time at 60% of the lowest VWAP of the 25 days leading up to conversion multiplied by the stated value of $100. | |
| ● | The Preferred D Stock has a 12% per annum stated dividend rate, which is calculated daily on a 360 day year. Any dividends, whether paid in cash or shares of Common Stock, that not paid within five trading days following a dividend payment date shall continue to accrue and shall entail a late fee at 18% per annum. In addition, the dividend rate of 12% is subject to an adjustment up to 18% if at any time the Company does not have an amount equal to or greater than 150% of the authorized but unissued common shares that would be required (on an “if converted” basis) to settle the conversion of Preferred D Stock outstanding. As of June 30, 2016 the Company has accrued dividends for Preferred D Stock in the amount of $339,235. The amount of dividends has not yet been determined by the Company and the holders whether to be payable in cash, common stock or additional shares of Preferred D Stock. | |
| ● | The Preferred D Stock shall have a liquidation preference equal to the stated value of each share of Preferred Stock or $100 per share. |
On July 2, 2015, the Board approved, and on July 8, 2015 filed with the Secretary of State for the State of Colorado, the Articles of Amendment to the Certificate of Designation of the Preferences, Rights and Limitations of the Series D 12% Convertible Preferred Stock. The amendment increased the number of shares of Series D 12% Convertible Preferred Stock that are designated to be issued from 10,000 shares to 20,000 shares of Series D 12% Convertible Preferred Stock. There were no other changes to the terms of our Series D 12% Convertible Preferred Stock. This amendment was approved in writing by a majority of the holders of the Series D 12% Convertible Preferred Stock. The Articles of Amendment is attached hereto as an exhibit.
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As of June 30, 2015, we have issued 9,979 shares of Series D Preferred Stock. As of June 30, 2016, an additional 10,968 shares of Series D Preferred Stock have been issued, leaving a total balance of 20,947 shares of Series D Preferred Stock. All of these Series D shares remain outstanding. None have been converted or redeemed by the Company.
Series C Preferred Stock Financing
On May 30, 2014, the Company authorized 120,000 shares of a newly-created Series C 12% Convertible Preferred Stock, par value $0.001 per share (the “Preferred C Stock”).
The terms of the Preferred C Stock are as follows:
| ● | The Preferred C Stock shall have no voting rights. | |
| ● | The Preferred C Stock is convertible at any time at 60% of the lowest VWAP of the 20 days leading up to conversion multiplied by the stated value of $100. | |
| ● | The Preferred C Stock has a 12% per annum stated dividend rate, which is calculated daily on a 360 day year. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within five trading days following a dividend payment date shall continue to accrue and shall entail a late fee at 18% per annum. In addition, the dividend rate of 12% is subject to an adjustment up to 18% if at any time the Company does not have an amount equal to or greater than 150% of the authorized but unissued common shares that would be required (on an “if converted” basis) to settle the conversion of Preferred C Stock outstanding. As of June 30, 2016, the Company has accrued dividends on Preferred C Stock in the amount of $3,628,584. The amount of dividends has not yet been determined by the Company and the holders whether to be payable in cash, common stock or additional shares of Preferred C Stock. | |
| ● | The Preferred C Stock shall have a liquidation preference equal to the stated value of each share of Preferred Stock or $100 per share. |
As of June 30, 2015, we have issued 118,069 shares of Series C Preferred Stock. As of June 30, 2016, no additional shares of Series C Preferred Stock have been issued. The Company has converted a total of 20,979 shares of Series C Preferred Stock, leaving a total balance of 97,090 shares of Series C Preferred Stock as of June 30, 2016.
On August 22, 2016, the Board approved, and on October 12, 2016 filed with the Secretary of State for the State of Colorado, the Articles of Amendment to the Certificate of Designation of the Preferences, Rights and Limitations of the Series D 12% Convertible Preferred Stock. The amendment increased the number of shares of Series D 12% Convertible Preferred Stock that are designated to be issued from 20,000 shares to 30,000 shares of Series D 12% Convertible Preferred Stock. There were no other changes to the terms of our Series D 12% Convertible Preferred Stock. This amendment was approved in writing by a majority of the holders of the Series D 12% Convertible Preferred Stock. The Articles of Amendment is attached hereto as an exhibit.
| Item 6. | Selected Financial Data |
We are not required to provide the information required by this Item because we are a smaller reporting company.
| Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations. |
The following discussion and analysis of the results of operations and financial condition for the fiscal years ended June 30, 2016 and 2015 and should be read in conjunction with our financial statements, and the notes to those financial statements that are included elsewhere in this Report.
Results of Operations for the Year end June 30, 2016 as Compared to the Year ended June 30, 2015
On April 15, 2015, the Company sold E Build & Truss to a group of employees in exchange for the acceptance of accounts payable and cancellation of accrued salaries (See Note 12 of the Footnotes to the Financial Statements).
In January and April, 2015, the Company consolidated the Colton and Salem facilities into a new coating services only plant in Tacoma, Washington to serve the Western United States. Operations began in April 2015 and were treating lumber for various customers.
In January 2016, the Company made a conscious decision to shut down the Tacoma, WA. Facility as well as all coating operations with the exception of the Augusta, GA. plant to significantly reduce overhead and focus primary on chemical sales to our affiliate network affording the Company with higher margin sales opportunities.
In the execution of the Company’s business plan, it has been observed that the traditional wood treating market has demonstrated resistance of market acceptance for Eco Red Shield technology as a competitive product or alternative. The Company views this resistance in a positive manner as this perception of competition is misplaced. In July of 2015 the Company divided the Eco Red Shield product line into three specific types meeting the current and future Technical Evaluation Reports (TER) for product use as specified by the International Building Codes (IBC) in an attempt to better represent the product for various uses and allow the product to compete while maintaining significant margins. The first division of the product line are referred to as Sill Plate (SP), this product provides all of the original attributes minus the fire inhibitor component. Eco Red Shield (SP) is approved for use in above ground contact, for use where typical pressure treating lumber has been used for decades.
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The elimination of the fire inhibitor allows the company to sell Eco Red Shield (SP) at great margin and compete with traditional pressure treating sales. The second division of the product line are referred to as Advanced Framing Lumber (AFL), this product provides all of the original attributes plus a reduced amount of the fire inhibitor component. This allows the Company to offer a product with value added fire resistance however the fire aspect does not meet IBC standards for structural use. This offering is meant to treat the entire framing package of a home at an affordable price and still allow the company to maintain significant margins. The third division of the product line are referred to as Fire Treated (FT), this product provides all of the original attributes plus the original amount of the fire inhibitor component. The Company has met IBC section 2303.2 structural fire standards for Douglas Fir and Spruce (SPF) dimensional lumber for use as an alternate material for traditional Fire Retardant Treated Wood (FRTW). This offering is meant to treat dimensional lumber for use as an alternate material in commercial and multifamily buildings were FRTW is specified for use. Typically pressure treated FRTW prices are much higher than other preservation offerings and this allows the Company to compete and still maintain great margins. Eco Red Shield technology was developed to provide protection for the entire super structure of wood framed construction not typically employed by traditional wood treatment process. With the product line division (SP) and (FT) meet IBC uses and will compete head to head with traditional methods and (AFL) is meant for value added sales. The traditional wood preservation and treatment industry comprises approximately 6 to 8 percent of the entire wood sold on an annual basis. Eco Red Shield - AFL was developed to provide a low cost protection for the other 94 percent of the market currently not employing any protection for lumber products. The Company recognized this division in the market and has now positioned the products to better service the market segments of the industry. The Company feels that the paradigm shift towards full framing protection has happened and the category of topical treated lumber within the industry has been created and will never go away. It is now time for Eco Building Products to capitalize on the opportunity in which we have fought so hard and successfully created.
Revenues and Cost of Sales - For the fiscal year ended June 30, 2016 we had total revenues of $445,980, as compared to $2,090,084 in revenues for the previous year. Decrease in revenue was primarily due to discontinuing operations in our New Jersey, Colton and Washington facilities. Our cost of sales for the fiscal years ended June 30, 2016 and June 30, 2015 was $850,714 and $3,164,324, respectively. The gross loss for the fiscal years ended June 30, 2016 and June 30, 2015 was $404,734 and $1,074,240, respectively. The gross loss for both years can be attributed to underpricing products, production worker over-staffing, plant consolidation and closing costs and excess capacity in all of our production facilities. The Company was not successful in making enough sales and margin on the sales we did achieve to support the operations. A drastic change in the business model was implemented to limit the production of the Company to the supply of chemicals only to our affiliate treatment facilities. This change will afford minimal overhead with significant margins allowing the Company a faster path towards self-sustaining activities. The Company is now heavily focused on R&D and growth of our affiliate network.
Operating Expenses - For the fiscal year ended June 30, 2016, our total operating expenses were $2,052,303 which includes depreciation expense and amortization expense, as compared to $2,862,767 for the fiscal year ended June 30, 2015. Included in our operating expenses for the fiscal year ended June 30, 2016 was compensation costs of $765,955, rent of $67,985, other general and administrative costs of $572,276, professional fees of $295,486, and research and development expenses of $275,170. The main change in operating expenses is correlated to a reduction in employee head count and other cost reduction measures.
Other Income (Expenses) - For the fiscal year ended June 30, 2016, total interest expense of $602,676 and amortization expense of $411,061 primarily representing interest on the convertible notes and interest to secured promissory note holders. The Company recognized $21,508,826 loss on derivative liability due to change in the fair value of the derivative liability, the derivative expense of $2,142,445 is related to convertible debt and convertible preferred shares issued.
For the fiscal year ended June 30, 2015, total interest and amortization expense was $1,908,748 due to debt discounts being amortized.
Liquidity and Capital Resources
On June 30, 2016, we had $45,153 in cash on hand. During the year ended June 30, 2016, net cash used in our operating activities amounted to $1,733,043. Net cash used during the same period for our investing activities totaled $174,426. During the same year, we received proceeds resulting in net cash from financing activities of $1,912,316 of which $1,097,082 was received from the issuance of Series D Preferred Stock.
The following table sets forth selected cash flow information for the year ended June 30, 2016:
| Net cash used in operating activities | $ | (1,733,043 | ) | |
| Net cash used in investing activities | (174,426 | ) | ||
| Net cash provided by financing activities | 1,912,316 | |||
| Net change in cash | $ | 4,847 |
PLAN OF OPERATION AND FUNDING
We expect that working capital requirements will continue to be funded through a combination of our existing funds and further issuances of securities. Our working capital requirements are expected to increase in line with the growth of our business.
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Existing working capital, further advances and debt instruments, and anticipated cash flow are expected to be adequate to fund our operations over the next six months. We have no lines of credit or other bank financing arrangements. Generally, we have financed operations to date through the proceeds of the private placement of equity and debt instruments. In connection with our business plan, management anticipates additional increases in operating expenses and capital expenditures relating to: (i) acquisition of inventory and raw materials; (ii) developmental expenses associated with a development stage business; and (iii) marketing expenses. We intend to finance these expenses with further issuances of securities, and debt issuances. Thereafter, we expect we will need to raise additional capital and generate revenues to meet long-term operating requirements. Additional issuances of equity or convertible debt securities will result in dilution to our current shareholders. Further, such securities might have rights, preferences or privileges senior to our common stock. Additional financing may not be available upon acceptable terms, or at all. If adequate funds are not available or are not available on acceptable terms, we may not be able to take advantage of prospective new business endeavors or opportunities, which could significantly and materially restrict our business operations.
Critical Accounting Policies
Long-Lived Assets
The Company accounts for its long-lived assets in accordance with ASC Topic 360-10-05, “Accounting for the Impairment or Disposal of Long-Lived Assets .” ASC Topic 360-10-05 requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate that the historical cost carrying value of an asset may no longer be appropriate. The Company assesses recoverability of the carrying value of an asset by estimating the future net cash flows expected to result from the asset, including eventual disposition. If the future net cash flows are less than the carrying value of the asset, an impairment loss is recorded equal to the difference between the asset’s carrying value and fair value or disposable value.
Issuances Involving Non-Cash Consideration
All issuances of the Company’s stock for non-cash consideration have been assigned a dollar amount equaling the market value of the shares issued on the date the shares were issued for such services.
Stock-Based Compensation
The Company accounts for stock-based compensation under ASC Topic 505-50 “Equity-Based Payments to Non-Employees”. This standard defines a fair value based method of accounting for stock-based compensation. In accordance with ASC Topic 505-50, the cost of stock-based compensation is measured at the grant date based on the value of the award and is recognized over the vesting period. The value of the stock-based award is determined using the Black-Scholes option-pricing model, whereby compensation cost is the excess of the fair value of the award as determined by the pricing model at the grant date or other measurement date over the amount that must be paid to acquire the stock. The resulting amount is charged to expense on the straight-line basis over the period in which the Company expects to receive the benefit, which is generally the vesting period. Options are granted at a price not less than the fair market value of the stock on the date of grant. Generally, options vest over periods not exceeding four years and are exercisable for up to ten years from the grant date.
Convertible Debentures
If the conversions feature of conventional convertible debt provides for a rate of conversion that is below market value, this feature is characterized as a beneficial conversion feature (“BCF”). A BCF is recorded by the Company as a debt discount pursuant to ASC Topic 470-20 “Debt with Conversion and Other Options.” In those circumstances, the convertible debt is recorded net of the discount related to the BCF and the Company amortizes the discount to interest expense over the life of the debt using the effective interest method. If a BCF is convertible into a variable number of shares it is accounted for as a derivative liability.
Derivative Financial Instruments
Derivative financial instruments, as defined in ASC 815, “Accounting for Derivative Financial Instruments and Hedging Activities”, consist of financial instruments or other contracts that contain a notional amount and one or more underlying (e.g. interest rate, security price or other variable), require no initial net investment and permit net settlement. Derivative financial instruments may be free-standing or embedded in other financial instruments. Further, derivative financial instruments are initially, and subsequently, measured at fair value and recorded as liabilities or, in rare instances, assets.
The Company does not use derivative financial instruments to hedge exposures to cash-flow, market or foreign-currency risks. However, the Company has issued financial instruments including senior convertible notes payable and freestanding stock purchase warrants with features that are either (i) not afforded equity classification, (ii) embody risks not clearly and closely related to host contracts, or (iii) may be net-cash settled by the counterparty. As required by ASC 815, in certain instances, these instruments are required to be carried as derivative liabilities, at fair value, in our financial statements.
The Company estimates the fair values of derivative financial instruments using the Black-Scholes option valuation technique. Estimating fair values of derivative financial instruments requires the development of significant and subjective estimates (such as volatility, estimated life and interest rates) that may, and are likely to, change over the duration of the instrument with related changes in internal and external market factors. In addition, option-based techniques are highly volatile and sensitive to changes in the trading market price of our common stock, which has a high-historical volatility. Since derivative financial instruments are initially and subsequently carried at fair values, the Company’s operating results will reflect the volatility in these estimate and assumption changes.
The Company recorded derivative liability of $37,376,605 and $14,198,848 and a loss of $21,508,826 and a gain of $18,584,275 on derivative valuation for the years ended June 30, 2016 and 2015, respectively.
| 16 |
Revenue Recognition and Concentration Risk
The Company records revenue when the following criteria are met: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred; (3) the selling price is fixed and determinable; and (4) collectability is reasonably assured. Determination of criteria (3) and (4) are based on management’s judgments regarding the fixed nature of the prices for the services performed and the collectability of those amounts.
The Company generally recognizes revenue from product sales, including equipment, at the time product is shipped and title passes to the customer assuming all the other revenue recognition criteria stated above are satisfied. Contract revenue where labor services are performed is generally recognized when the labor services are performed assuming all the other revenue recognition criteria stated above is satisfied. Sales are recorded net of any applicable sales tax.
The Company had product sales revenue of $445,980 with $207,338 revenue from one customer representing 46% of total sales for year ended June 30, 2016. $125,535 revenue came from two customers representing, 28% of total sales.
The Company had product sales revenue of $787,096 and $340,770 to two customers, representing 32% and 14% of total sales for year ended June 30, 2015, respectively. No long term fixed contracts control any future sales to these customers.
Warranty Costs
The Company provides a ten-year warranty on its products. The Company accrues for the estimated warranty costs at the time when revenue is recognized. The warranty accruals are regularly monitored by management based upon historical experience and any specifically identified failures. While the Company engages in extensive product quality assessment, actual product failure rates, material usage or service delivery has resulted in no warranty claims to date.
Going Concern
The Company’s financial statements are prepared using the accrual method of accounting in accordance with accounting principles generally accepted in the United States of America and have been prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities in the normal course of business. To date, the Company has generated minimal operating revenues, losses from operations, significant cash used in operating activities, and is dependent upon its ability to obtain future financing.
Our continuation as a going concern is dependent upon obtaining the additional working capital necessary to sustain our operations. Our future is dependent upon our ability to obtain financing and upon future profitable operations. The Company estimates the current operational expenses of approximately one hundred and fifty thousand dollars a month is required to continue to operate. This is achieved either through profit from sales or by management seeking additional financing through the sale of its common stock, and/or through private placements. The minimum operational expenses must be met in order to relive the threat of the company’s ability to continue as a going concern. There is no assurance that our current operations will be profitable or that we will raise sufficient funds to continue operating. The Company continues to try to trim overhead expenses at the same time increasing sales to meet revenue goals. The financial statements do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts of and classification of liabilities that might be necessary in the event we cannot continue in existence. These factors raise substantial doubt about the Company’s ability to continue as a going concern.
If current and projected revenue growth does not meet Management estimates, the Management may continue to choose to raise additional capital through debt and/or equity transactions, reduce certain overhead costs through the deferral of salaries and other means, and settle liabilities through negotiation. Currently, the Company does not have any commitments or assurances for additional capital, nor can the Company provide assurance that such financing will be available to it on favorable terms, or at all. If, after utilizing the existing sources of capital available to the Company, further capital needs are identified and the Company is not successful in obtaining the financing, it may be forced to curtail its existing or planned future operations. The Company has already taken steps to reduce expenses. Additionally, the Company has recently changed the product offering to better align with our product certifications and the intended use. This has resulted in three products now marketed as “Sill Plate” to meet the accolades of our TER 1511-09, “Advanced Framing Lumber” to meet the accolades of our TER 1511-10 which includes the attributes of Sill Plate with the addition of our Fire Inhibitor. This product is meant for the full framing package of a wood framed building and is sold as a value added protection. Our third product is offered as “Fire Treatment or FT” to meet the accolades of our TER 1510-01 which includes all of the prior two accolades and is the original formulation meeting the IBC Section 2303.2 as an alternate material to the use of Fire Retardant Treated Wood (FRTW). This change has afforded the company and its affiliates the ability to address each segment of the market increasing sales opportunities and allowing the Company to make a consistent margin on every sale. Nevertheless, the Company continues to experience cash flow difficulties and there is no assurance of when it may be profitable.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements or financing activities with special purpose entities.
| Item 7A. | Quantitative and Qualitative Disclosures About Market Risk |
We are not required to provide the information required by this Item because we are a smaller reporting company.
| Item 8. | Financial Statements and Supplementary Data |
| 17 |
ECO Building Products, Inc.
Consolidated Financial Statements
| 18 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of
Eco Building Products, Inc.
We have audited the accompanying consolidated balance sheets of Eco Building Products, Inc. (“the Company”) as of June 30, 2016 and 2015, and the related consolidated statements of operations, stockholders’ deficit, and cash flows for each of the years in the two year period ended June 30, 2016. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits 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 consolidated financial statements are free of material misstatement. The company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Eco Building Products, Inc. as of June 30, 2016 and 2015, and the results of its operations and its cash flows for each of the years in the two year period ended June 30, 2016, in conformity with accounting principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has incurred accumulated losses and a working capital deficit as of June 30, 2016 which raises substantial doubt about its ability to continue as a going concern. Management’s plans concerning these matters are also described in the footnotes to the consolidated financial statements. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
| /s/ Sadler, Gibb & Associates, LLC | |
| Salt Lake City, UT | |
| October 14, 2016 |
| 19 |
ECO BUILDING PRODUCTS, INC.
| June 30, 2016 | June 30, 2015 | |||||||
| CURRENT ASSETS | ||||||||
| Cash | 45,153 | 40,306 | ||||||
| Accounts receivable, net | 2,150 | 14,045 | ||||||
| Inventory, net | 51,357 | 171,631 | ||||||
| Prepaid expenses | 3,000 | 3,000 | ||||||
| Other current assets | 11,793 | 41,738 | ||||||
| TOTAL CURRENT ASSETS | 113,453 | 270,720 | ||||||
| Property and equipment, net | 382,128 | 592,679 | ||||||
| TOTAL ASSETS | 495,581 | 863,399 | ||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable | 1,460,792 | 1,256,160 | ||||||
| Payroll and taxes payable | 1,675,638 | 1,571,786 | ||||||
| Accrued interest | 749,766 | 237,907 | ||||||
| Other payables and accrued expenses | 241,156 | 167,568 | ||||||
| Derivative liability | 37,376,605 | 14,198,848 | ||||||
| Convertible notes, net | 1,116,088 | 743,605 | ||||||
| Notes payable | 1,831,220 | 931,939 | ||||||
| Notes payable- related party | - | 45,000 | ||||||
| TOTAL CURRENT LIABILITIES | 44,451,265 | 19,152,813 | ||||||
| LIABILITIES RELATED TO DISCONTINUED OPERATIONS | 1,148,229 | 1,148,229 | ||||||
| COMMITMENTS AND CONTINGENCIES | - | - | ||||||
| STOCKHOLDERS’ DEFICIT | ||||||||
| Preferred stock, Series A, $0.001 par value, 30,000 shares authorized, 0 and 30,000 shares issued and outstanding at June 30, 2016 and 2015, respectively | - | - | ||||||
| Preferred stock, Series B, $0.001 par value, 10,000 shares authorized, 0 and 0 shares issued and outstanding at June 30, 2016 and 2015, respectively | - | - | ||||||
| Preferred stock, Series C, $0.001 par value, 120,000 shares authorized, 97,090 and 104,440 shares issued and outstanding at June 30, 2016 and 2015, respectively | 97 | 104 | ||||||
| Preferred stock, Series D, $0.001 par value, 20,000 shares authorized, 20,947 and 9,979 shares issued and outstanding at June 30, 2016 and 2015, respectively | 21 | 10 | ||||||
| Common stock, $0.001 par value, 10,000,000,000 shares authorized, 3,756,411,958 and 608,622,815 shares issued and outstanding at June 30, 2016 and 2015, respectively | 3,756,412 | 608,623 | ||||||
| Treasury stock | (1,434 | ) | (1,434 | ) | ||||
| Additional paid-in capital | 52,595,827 | 54,831,568 | ||||||
| Accumulated deficit | (101,454,836 | ) | (74,876,514 | ) | ||||
| TOTAL STOCKHOLDERS’ DEFICIT | (45,103,913 | ) | (19,437,643 | ) | ||||
| TOTAL LIABILITIES AND DEFICIT | 495,581 | 863,399 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
| 20 |
ECO BUILDING PRODUCTS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
| For the | For the | |||||||
| Year Ended | Year Ended | |||||||
| June 30, 2016 | June 30, 2015 | |||||||
| REVENUE | ||||||||
| Product and coating sales | 445,980 | 2,090,084 | ||||||
| COST OF SALES | ||||||||
| Cost of sales | 850,714 | 3,164,324 | ||||||
| GROSS LOSS | (404,734 | ) | (1,074,240 | ) | ||||
| OPERATING EXPENSES | ||||||||
| Research and development | 275,170 | 71,921 | ||||||
| Marketing | 75,431 | 58,771 | ||||||
Compensation expenses | 765,955 | 1,230,619 | ||||||
| Rent- facilities | 67,985 | 220,407 | ||||||
| Professional fees | 295,486 | 474,924 | ||||||
| Other general and administrative expenses | 572,276 | 806,125 | ||||||
| TOTAL OPERATING EXPENSES | 2,052,303 | 2,862,767 | ||||||
| LOSS FROM OPERATIONS | (2,052,303 | ) | (2,862,767 | ) | ||||
| OTHER INCOME (EXPENSE) | ||||||||
| Interest and amortization expense | (1,013,737 | ) | (1,908,748 | ) | ||||
| Gain (loss) on derivative liability | (21,508,826 | ) | 18,584,275 | |||||
| Derivative expense | (2,142,445 | ) | (11,058,541 | ) | ||||
| Loss on impairment | - | (207,172 | ) | |||||
| Other expenses | (38,650 | ) | - | |||||
| Other income | 9,140 | - | ||||||
| Gain (loss) on settlement of debt | 744,587 | (1,156,771 | ) | |||||
| Loss on disposal of property and equipment | (171,354 | ) | - | |||||
| TOTAL OTHER INCOME (EXPENSE) | (24,121,285 | ) | 4,253,043 | |||||
| NET INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES | (26,578,322 | ) | 316,036 | |||||
| NET LOSS FROM DISCONTINUED OPERATIONS | - | (216,164 | ) | |||||
| NET INCOME (LOSS) | (26,578,322 | ) | 99,872 | |||||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING | ||||||||
Basic - | 2,631,379,286 | 390,787,135 | ||||||
Diluted - | 2,631,379,286 | 8,422,618,126 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
| 21 |
ECO BUILDING PRODUCTS, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS’ DEFICIT
| Common Stock | Treasury Stock | Series A Preferred Stock | Series C Preferred Stock | Series D Preferred Stock | Additional Paid-in | Accumulated | ||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Capital | Deficit | Totals | ||||||||||||||||||||||||||||||||||||||||
| Balance June 30, 2014 | 160,175,508 | 160,176 | (1,433,048 | ) | (1,434 | ) | 30,000 | 30 | 94,394 | 94 | - | - | 49,660,882 | (74,976,386 | ) | (25,156,638 | ) | |||||||||||||||||||||||||||||||||||
| Shares issued for Preferred C shares | 329,098,857 | 329,099 | - | - | - | - | (10,725 | ) | (11 | ) | - | - | (318,363 | ) | - | 10,725 | ||||||||||||||||||||||||||||||||||||
| Shares issued for cash | 37,500,000 | 37,500 | - | - | - | - | - | - | - | - | 62,500 | - | 100,000 | |||||||||||||||||||||||||||||||||||||||
| Issuance of Preferred C for cash | - | - | - | - | - | - | 10,000 | 10 | - | - | - | - | 10 | |||||||||||||||||||||||||||||||||||||||
| Issuance of Preferred D for cash | - | - | - | - | - | - | - | - | 9,979 | 10 | - | - | 10 | |||||||||||||||||||||||||||||||||||||||
| Shares issued for convertible notes | 14,598,450 | 14,598 | - | - | - | - | - | - | - | - | 73,520 | - | 88,118 | |||||||||||||||||||||||||||||||||||||||
| Shares issued for settlement of debt | 12,250,000 | 12,250 | - | - | - | - | - | - | - | - | 96,750 | - | 109,000 | |||||||||||||||||||||||||||||||||||||||
| Shares issued for interest expense and debt discount | 55,000,000 | 55,000 | - | - | - | - | - | - | - | - | 207,678 | - | 262,678 | |||||||||||||||||||||||||||||||||||||||
| Preferred A shares cancelled by former officer | - | - | - | - | (30,000 | ) | (30 | ) | - | - | - | - | - | - | (30 | ) | ||||||||||||||||||||||||||||||||||||
| Issuance of Preferred C in settlement of debt | - | - | - | - | - | - | 10,771 | 11 | - | - | 1,077,202 | - | 1,077,213 | |||||||||||||||||||||||||||||||||||||||
| Derivative liability converted | - | - | - | - | - | - | - | - | - | - | 2,870,900 | - | 2,870,900 | |||||||||||||||||||||||||||||||||||||||
| Cancellation of debt to former officer | - | - | - | - | - | - | - | - | - | - | 1,089,505 | - | 1,089,505 | |||||||||||||||||||||||||||||||||||||||
| Options issued to former officer with debt cancellation | - | - | - | - | - | - | - | - | - | - | 10,994 | - | 10,994 | |||||||||||||||||||||||||||||||||||||||
| Net income | - | - | - | - | - | - | - | - | - | - | - | 99,872 | 99,872 | |||||||||||||||||||||||||||||||||||||||
| Balance June 30, 2015 | 608,622,815 | 608,623 | (1,433,048 | ) | (1,434 | ) | - | - | 104,440 | 104 | 9,979 | 10 | 54,831,568 | (74,876,514 | ) | (19,437,643 | ) | |||||||||||||||||||||||||||||||||||
| - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued for Preferred C shares | 2,624,467,768 | 2,624,468 | - | - | - | - | (3,580 | ) | (4 | ) | - | - | (2,624,464 | ) | - | - | ||||||||||||||||||||||||||||||||||||
| Issuance of Preferred D for cash | - | - | - | - | - | - | - | - | 10,968 | 11 | (11 | ) | - | - | ||||||||||||||||||||||||||||||||||||||
| Shares issued for convertible notes | 523,321,375 | 523,321 | - | - | - | - | - | - | - | - | (455,745 | ) | - | 67,576 | ||||||||||||||||||||||||||||||||||||||
| Derivative liability converted | - | - | - | - | - | - | - | - | - | - | 832,009 | - | 832,009 | |||||||||||||||||||||||||||||||||||||||
| Extinguishment of Preferred C for notes payable | - | - | - | - | - | - | (3,770 | ) | (4 | ) | - | - | 4 | - | - | |||||||||||||||||||||||||||||||||||||
| Stock options expense | - | - | - | - | - | - | - | - | - | - | 12,466 | - | 12,466 | |||||||||||||||||||||||||||||||||||||||
| Net loss | - | - | - | - | - | - | - | - | - | - | - | (26,578,322 | ) | (26,578,322 | ) | |||||||||||||||||||||||||||||||||||||
| Balance June 30, 2016 | 3,756,411,958 | 3,756,412 | (1,433,048 | ) | (1,434 | ) | - | - | 97,090 | 97 | 20,947 | 21 | 52,595,827 | (101,454,836 | ) | (45,103,913 | ) | |||||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements
| 22 |
ECO BUILDING PRODUCTS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
| June 30, 2016 | June 30, 2015 | |||||||
| Cash flows from operating activities | ||||||||
| Net Income (Loss) | (26,578,322 | ) | 99,872 | |||||
| Adjustments to reconcile net income (loss) to net cash used by operating activities: | ||||||||
| Depreciation expense | 149,925 | 237,671 | ||||||
| Bad debt expense | - | 98,669 | ||||||
| Impairment of property & equipment | - | 207,172 | ||||||
| Amortization of debt discount | 411,060 | 1,496,746 | ||||||
| Derivative expense | 2,142,445 | 11,058,541 | ||||||
| Stock Based Compensation | 12,466 | 27,292 | ||||||
| Common Stock issuance for interest and OID | - | 262,678 | ||||||
| Financing costs | 148,125 | - | ||||||
| Loss (Gain) on derivative liability fair value adjustment | 21,508,826 | (18,584,275 | ) | |||||
Loss (Gain) on settlement of debt | (744,587 | ) | 1,156,971 | |||||
| Loss on disposal of property and equipment | 171,354 | - | ||||||
| Expense paid on behalf of the Company | 9,743 | 1,684,752 | ||||||
| Assignment of accounts receivable to note payable holder | - | (541,575 | ) | |||||
| Changes in assets and liabilities: | ||||||||
| Accounts receivable | 11,895 | 46,923 | ||||||
| Inventory | 120,274 | 296,780 | ||||||
| Prepaid expenses and other current assets | 29,945 | 4,638 | ||||||
| Accounts payable | 204,632 | 859,939 | ||||||
| Payroll and taxes payable | 103,852 | (783,708 | ) | |||||
| Other payable and accrued expenses | 53,465 | (167,705 | ) | |||||
| Accrued interest | 511,859 | 171,983 | ||||||
| Net cash from continuing operations | (1,733,043 | ) | (2,366,636 | ) | ||||
| Net cash from discontinued operations | - | 38,492 | ||||||
| Net cash from operating activities | (1,733,043 | ) | (2,328,144 | ) | ||||
| Cash flows from investing activities | ||||||||
| Purchase of property and equipment | (174,426 | ) | (131,104 | ) | ||||
| Net cash used by investing activities | (174,426 | ) | (131,104 | ) | ||||
| Cash flows from financing activities | ||||||||
| Payments on related party notes | (45,000 | ) | (100,158 | ) | ||||
| Proceeds from issuance of common stock | - | 100,000 | ||||||
| Proceeds from issuances of series C convertible preferred stock | - | 1,000,000 | ||||||
| Proceeds from issuances of series D convertible preferred stock | 1,097,082 | 997,939 | ||||||
| Proceeds from convertible notes payable - non-related parties | 412,000 | 80,000 | ||||||
| Proceeds from notes payable | 817,500 | 153,500 | ||||||
| Proceeds from notes payable - related parties | - | 120,000 | ||||||
| Payments on convertible notes payable - non-related parties | - | (124,559 | ) | |||||
| Payments on notes payable | (359,393 | ) | (80,955 | ) | ||||
| Payments on notes payable - vehicles loan | (9,873 | ) | (21,279 | ) | ||||
| Net cash provided by financing activities | 1,912,316 | 2,124,488 | ||||||
| Net change in cash and cash equivalent | 4,847 | (334,760 | ) | |||||
| Cash and cash equivalent at the beginning of year | 40,306 | 375,066 | ||||||
| Cash and cash equivalent at the end of year | 45,153 | 40,306 | ||||||
| Supplemental disclosures of cash flow Information: | ||||||||
| Cash Paid for Interest | 17,000 | 8,333 | ||||||
| Supplemental disclosure of non-cash investing and financing activities: | ||||||||
| Common shares issued for conversion of notes payable | 654,084 | - | ||||||
| Common shares issued for settlement of investor loans | - | 118,498 | ||||||
| Options issued in exchange for series A preferred stock and forgiveness of liabilities | - | 1,100,498 | ||||||
| Shares issued for conversion of notes payable | - | 273,831 | ||||||
| Preferred shares issued for extinguishment of convertible notes payable & A/P | - | 2,384,026 | ||||||
| Shares issued for conversion of Pref C convertible preferred stock | 3,325,715 | 2,701,848 | ||||||
| Disposition of assets for assumption of liabilities - discontinued operations | - | 236,419 | ||||||
| Convertible notes issued for assumption of notes payable | - | 410,000 | ||||||
| Purchase of property & equipment with loans payable | - | 105,284 | ||||||
| Debt Discount on convertible notes | 383,000 | 1,567,516 | ||||||
| OID | 41,844 | 96,515 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
| 23 |
Eco Building Products, Inc.
Footnotes to Consolidated Financial Statements
June 30, 2016
1. Organization and Basis of Presentation
Organization
Eco Building Products, Inc. (the “Company”) was incorporated in the state of Colorado under the name N8 Concepts, Inc. on March 27, 2007.
On October 19, 2009, the Company merged with Ecoblu Products, Inc., a Nevada Corporation (“ECOBLU”). For financial reporting purposes, the acquisition was treated as a reverse acquisition whereby ECOBLU’s operations continue to be reported as if it had actually been the acquirer.
ECOBLU was organized May 20, 2009 in Nevada as a wholesale distributor and manufacturer of proprietary wood products coated with an eco-friendly chemistry that is designed to protect against mold, rot, decay, termites and fire. The Company has also developed an affiliate coating program that allows lumber companies to coat commodity lumber at their facilities contingent upon their stocking the Company’s inventory and supporting the Company’s products.
On April 8, 2011, the Company formed Red Shield Lumber, Inc. (“Red Shield”) in British Columbia, Canada. Red Shield was formed for the purpose of opening a plant in Canada utilizing the Company’s coating process to support sales and distribution. As of June 30, 2016, the wholly owned subsidiary has no operating activity and we do not expect this subsidiary to begin operations in the near future.
On May 31, 2011, the Company formed E Build & Truss, Inc. (“E Build”) on May 31, 2011 in the State of California. E Build was formed for the purpose of operating the Company’s truss manufacturing activities. In April, 2015, E Build was sold. See “Discontinued Operations” footnote 12.
In December 2011, the Company formed Seattle Coffee Exchange (“Seattle”) in the State of California. This wholly-owned subsidiary has not commenced its operations as of June 30, 2016, and the Company has no intention of operating Seattle Coffee Exchange.
Going Concern
The Company’s financial statements are prepared using the accrual method of accounting in accordance with accounting principles generally accepted in the United States of America and have been prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities in the normal course of business. To date the Company has recorded an accumulated deficit of $101,454,836, current year net loss of $26,578,322, recurring losses from operations and significant cash used in operating activities over the last two years, and is dependent upon its ability to obtain future financing and successful operations. The Company is experiencing negative working capital from operations.
Our continuation as a going concern is dependent upon obtaining the additional working capital necessary to sustain our operations. Our future is dependent upon our ability to obtain financing and upon future profitable operations. The Company estimates the current operational expenses of approximately two hundred and fifty thousand dollars a month is required to continue to operate. This is achieved either through profit from sales, obtaining additional financing through the sale of its common stock and/or through private placements, and trimming overhead expenses. The minimum operational expenses must be met in order to relieve the threat of the company’s ability to continue as a going concern. There is no assurance that our current operations will be profitable or we will raise sufficient funds to continue operating. The financial statements do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts of and classification of liabilities that might be necessary in the event we cannot continue in existence. These factors raise substantial doubt about the Company’s ability to continue as a going concern.
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2. Summary of Significant Accounting Policies
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the Eco Building Products, Inc. and its wholly owned subsidiaries, E Build & Truss, Inc., Red Shield Lumber, Inc., and Seattle Coffee Exchange. Intercompany transactions and balances have been eliminated in consolidation. E Build & Truss was sold in April of 2015. See footnote 12.
Accounts Receivable
Accounts receivable are reported at the customers’ outstanding balances less any allowance for doubtful accounts. Interest is not accrued on overdue accounts receivable.
Allowance for Doubtful Accounts
An allowance for doubtful accounts on accounts receivable is charged to operations in amounts sufficient to maintain the allowance for uncollectible accounts at a level management believes is adequate to cover any probable losses. Management determines the adequacy of the allowance based on historical write-off percentages, information collected from individual customers related to past transaction history, credit-worthiness, changes in payments terms and current economic industry trends. Accounts receivable are charged off against the allowance when collectability is determined to be permanently impaired. The allowance for doubtful account was, $1,607 and $1,607, respectively, as of June 30, 2016 and June 30, 2015, correspondingly, bad debt expense was $13,985 and $138,216 for June 30, 2016 and June 30, 2015 respectively.
Inventories
Inventories primarily consist of chemicals, labor and lumber and are stated at lower of first-in-first out (FIFO) cost or market (net realizable value). Net realizable value is the respective inventory’s estimated selling price reduced by the cost of completion and disposal. The Company also evaluates its inventories in an ongoing basis based on the demand of its inventories. If the Company deemed that the inventories do not have demand, the Company reserves those slow moving inventories as obsolete inventories. As of the fiscal year ended June 30, 2016 and June 30, 2015, the Company reserved $0 and $47,264 for obsolete inventory, respectively, recorded in cost of sales in the Consolidated Statements of Operations.
Property and Equipment
Property and equipment are stated at cost. Property and equipment purchases with useful lives exceeding one year and major renewals and improvements are charged to the asset accounts, while replacements and maintenance and repairs that do not improve or extend the lives of the respective assets are expensed. At the time property and equipment are retired or otherwise disposed of, the asset and related accumulated depreciation accounts are relieved of the applicable amounts. Gains or losses from retirements or sales are credited or charged to income. Depreciation expense is recorded on a straight-line basis over the estimated useful lives of assets that range from (3) to seven (7) years. Leasehold improvements are depreciated over their useful life or the term of the related lease, whichever is shorter. Depreciation expense is not recorded on idle property and equipment until such time as it is placed into service.
Long-Lived Assets
The Company accounts for its long-lived assets in accordance with ASC Topic 360-10-05, “Accounting for the Impairment or Disposal of Long-Lived Assets .” ASC Topic 360-10-05 requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate that the historical cost carrying value of an asset may no longer be appropriate. The Company assesses recoverability of the carrying value of an asset by estimating the future net cash flows expected to result from the asset, including eventual disposition. If the future net cash flows are less than the carrying value of the asset, an impairment loss is recorded equal to the difference between the asset’s carrying value and fair value or disposable value. Accordingly, as of the fiscal years ended June 30, 2016 and 2015, the Company recorded on impairment expense of $0 and $207,172, respectively.
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Issuances Involving Non-Cash Consideration
All issuances of the Company’s stock for non-cash consideration have been assigned a dollar amount equaling the market value of the shares issued on the date the shares were issued for such services. The non-cash consideration received pertains to settlement of accrued compensation, consulting and advisory services, debt cancellation, conversion of Preferred Series C shares and a related party equipment purchase (See Note 8).
Stock-Based Compensation
The Company accounts for stock-based compensation under ASC Topic 505-50 “Equity-Based Payments to Non-Employees”. This standard defines a fair value based method of accounting for stock-based compensation. In accordance with ASC Topic 505-50, the cost of stock-based compensation is measured at the grant date based on the value of the award and is recognized over the vesting period. The value of the stock-based award is determined using the Black-Scholes option-pricing model, whereby compensation cost is the excess of the fair value of the award as determined by the pricing model at the grant date or other measurement date over the amount that must be paid to acquire the stock. The resulting amount is charged to expense on the straight-line basis over the period in which the Company expects to receive the benefit, which is generally the vesting period. Options are granted at a price not less than the fair market value of the stock on the date of grant. Generally, options vest over periods not exceeding four years and are exercisable for up to ten years from the grant date.
Earnings (Loss) Per Share
The Company reports earnings (loss) per share in accordance with ASC Topic 260-10, “Earnings per Share.” Basic earnings (loss) per share is computed by dividing income (loss) available to common shareholders by the weighted average number of common shares available. Diluted earnings (loss) per share is computed similar to basic earnings (loss) per share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potential common shares had been issued and if the additional common shares were dilutive. For the year-ended June 30, 2016, there was 226,787,983,333 common stock equivalents excluded from the diluted EPS calculation as their effect is anti-dilutive. For the year-ended June 30, 2015 there were 8,036,836,992 common stock equivalents that were included in the diluted EPS calculation.
Cash and Cash Equivalents
For purpose of the statements of cash flows, the Company considers cash and cash equivalents to include all stable, highly liquid investments with maturities of three months or less.
Credit Risk
At times, the Company maintains cash balances at a financial institution in excess of the $250,000 FDIC insurance limit.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affects the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Convertible Debentures
If the conversion features of conventional convertible debt provides for a rate of conversion that is below market value, this feature is characterized as a beneficial conversion feature (“BCF”). A BCF is recorded by the Company as a debt discount pursuant to ASC Topic 470-20 “Debt with Conversion and Other Options.” In those circumstances, the convertible debt is recorded net of the discount related to the BCF and the Company amortizes the discount to interest expense over the life of the debt using the effective interest method. If a BCF is convertible into a variable number of shares it is accounted for as a derivative liability.
Derivative Financial Instruments
Derivative financial instruments, as defined in ASC 815, “Accounting for Derivative Financial Instruments and Hedging Activities”, consist of financial instruments or other contracts that contain a notional amount and one or more underlying (e.g. interest rate, security price or other variable), require no initial net investment and permit net settlement. Derivative financial instruments may be free-standing or embedded in other financial instruments. Further, derivative financial instruments are initially, and subsequently, measured at fair value and recorded as liabilities or, in rare instances, assets.
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The Company does not use derivative financial instruments to hedge exposures to cash-flow, market or foreign-currency risks. However, the Company has issued financial instruments including senior convertible notes payable, convertible preferred stock and freestanding stock purchase warrants with features that are either (i) not afforded equity classification, (ii) embody risks not clearly and closely related to host contracts, or (iii) may be net-cash settled by the counterparty. As required by ASC 815, in certain instances, these instruments are required to be carried as derivative liabilities, at fair value, in our financial statements.
The Company estimates the fair values of derivative financial instruments using the Black-Scholes option valuation technique. Estimating fair values of derivative financial instruments requires the development of significant and subjective estimates (such as volatility, estimated life and interest rates) that may, and are likely to, change over the duration of the instrument with related changes in internal and external market factors. In addition, option-based techniques are highly volatile and sensitive to changes in the trading market price of our common stock, which has a high-historical volatility. Since derivative financial instruments are initially and subsequently carried at fair values, the Company’s operating results will reflect the volatility in these estimate and assumption changes.
The Company recorded derivative liability of $37,376,605 and $14,198,848 and a loss of $21,508,826 and a gain of $18,584,275 on derivative valuation for the years ended June 30, 2016 and 2015, respectively.
Revenue Recognition and Concentration Risk
The Company records revenue when the following criteria are met: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred; (3) the selling price is fixed and determinable; and (4) collectability is reasonably assured. Determination of criteria (3) and (4) are based on management’s judgments regarding the fixed nature of the prices for the services performed and the collectability of those amounts.
The Company generally recognizes revenue from product sales, including equipment, at the time product is shipped and title passes to the customer assuming all the other revenue recognition criteria stated above are satisfied. Contract revenue where labor services are performed is generally recognized when the labor services are performed assuming all the other revenue recognition criteria stated above is satisfied. Sales are recorded net of any applicable sales tax.
The Company had product sales revenue of $445,980 with $207,338 revenue from one customer representing 46% of total sales for year ended June 30, 2016. $125,535 revenue came from two customers representing, 28% of total sales. No long term fixed contracts control any future sales to these customers.
The Company had product sales revenue of $2,090,084, with $787,096 and $340,770 to two customers, representing 32% and 14% of total sales for year ended June 30, 2015, respectively. No long term fixed contracts control any future sales to these customers.
Cost of Revenues
Costs of revenues include costs related to revenue recognized; such costs represent materials, labor, depreciation and amortization, equipment rental, supplies, utilities, repair and maintenance. Certain expense reclassifications were made to the 2016 financial statements to be consistent with the Company’s current accounting practices.
General and Administrative Expenses
General and administrative expenses include management and administrative personnel costs; corporate office costs; accounting fees, legal expense, information systems expense, and product marketing and sales expense.
Research and Development Expenses
Research and development expenses, consist of expenses related to its wood coating process. These expenses also include the salary of the Chief Technical Officer for the current period, it is charged to operations when incurred. We incurred $275,170 and $71,921 for the years ended June 30, 2016 and 2015, respectively.
Advertising Cost
Advertising costs are charged to operations when incurred. During in the years ended June 30, 2016 and 2015 the Company incurred $75,431 and $58,771 respectively in advertising and promotion costs.
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Shipping and Handling Costs
The Company classifies shipping and handling costs associated with the receipt of product as part of cost of sales as reflected in the statement of operations. The Company classifies costs associated with shipping product to customers as part of cost of goods sold as reflected in the statement of operations.
Income Taxes
The Company accounts for its income taxes under the provisions of ASC Topic 740” Income Taxes” . The method of accounting for income taxes under ASC 740 is an asset and liability method. The asset and liability method requires the recognition of deferred tax liabilities and assets for the expected future tax consequences of temporary differences between tax bases and financial reporting bases of other assets and liabilities.
Litigation and Settlement Costs
Legal costs are expensed as incurred. We are involved in disputes, litigation and other legal actions in the ordinary course of business. We continually evaluate uncertainties associated with litigation and record a charge equal to at least the minimum estimated liability for a loss contingency when both of the following conditions are met: (i) information available prior to issuance of the financial statements indicates that it is probable that an asset had been impaired or a liability had been incurred at the date of the financial statements and (ii) the loss or range of loss can be reasonably estimated. In the event of settlement discussions, this generally occurs when an agreement in principle has been reached by both parties that include substantive terms, conditions and amounts. If a settlement has more than one element, we account for the agreement as a multiple element arrangement and allocate the consideration to the identifiable elements based on relative fair value. Past multiple element settlement agreements have included the licensing of intellectual property for future use and payments related to alleged prior infringement.
Reclassifications
Certain expenses previously included in general and administrative in the prior year have been reclassified to cost of goods sold to reflect current accounting practices.
Recent Accounting Pronouncements
In April 2015, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2015-03, “Interest – Imputation of Interest: Simplifying the Presentation of Debt Issuance Costs” (ASU 2015-03), which resulted in the reclassification of debt issuance costs from “Other Assets” to inclusion as a reduction of our reportable “Long-Term Debt” balance on our consolidated balance sheets. Since ASU 2015-03 does not address deferred issuance costs for line-of-credit arrangements, the FASB issued ASU No. 2015-15, “Interest – Imputation of Interest: Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line-of-Credit Arrangements” (ASU 2015-15), in August 2015. ASU 2015-15 allows a company to defer debt issuance costs associated with line-of-credit arrangements, including arrangements with no outstanding borrowings, classify them as an asset, and amortize them over the term of the arrangements. We elected to adopt ASU 2015-03 early, with full retrospective application as required by the guidance, and ASU 2015-15, which was effective immediately. These standards did not have a material impact on our consolidated balance sheets and had no impact on our cash flows provided by or used in operations for any period presented.
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3. Balance Sheet Components
Inventories
Inventories consisted of the following:
| For the year ended | ||||||||
| June 30, | ||||||||
| 2016 | 2015 | |||||||
| Chemicals | $ | 51,357 | $ | 160,920 | ||||
| Lumber | — | 10,711 | ||||||
| Total | $ | 51,357 | $ | 171,631 | ||||
All of the Company’s inventories are pledged as collateral for the Company’s Senior Secured Notes (see Note 5). In addition, inventory is considered finished goods as the Company sells and markets chemicals and treated and untreated lumber.
Accrued Liabilities
As of June 30, 2016, the Company owed $719,568 in past due payroll taxes and accrued penalties. The Company has successfully made an arrangement with the IRS for monthly payments for a $740,000 portion of the liability. These amounts are recorded within payroll and taxes payable on the accompanying consolidated balance sheet. Also at June 30, 2016, the Company owed $65,349 in past due sales tax in which it has filed the appropriate reports and is making periodic payments. Recently the Board of Equalization has levied this debt against the bank account.
As of June 30, 2015, the Company owed $888,145 in past due payroll taxes and accrued penalties. The Company has successfully made an arrangement with the IRS for monthly payments for a $740,000 portion of the liability. These amounts are recorded within payroll and taxes payable on the accompanying consolidated balance sheet. Also at June 30, 2015, the Company owed $21,397 in past due sales tax in which it has filed the appropriate reports and is making periodic payments.
4. Property and Equipment
Property and equipment consisted of the following:
| For the year ended | ||||||||
| June 30, | ||||||||
| 2016 | 2015 | |||||||
| Machinery and equipment (useful life of five to seven years) | $ | 904,066 | $ | 904,066 | ||||
| Vehicles (useful life is three years) | — | 103,090 | ||||||
| Furniture (useful life of five years) | 20,407 | 20,407 | ||||||
| Computer equipment and software (useful life of three years) | 3,694 | 11,580 | ||||||
| Leasehold improvements (useful life of three years) | — | 88,737 | ||||||
| 928,167 | 1,127,880 | |||||||
| Less accumulated depreciation | (546,039 | ) | (535,201 | ) | ||||
| $ | 382,128 | $ | 592,679 | |||||
Eco Building Products disposed of obsolescent or non-working fixed assets during the year ending June 30, 2016, A loss of $171,354 was recorded as a result of the disposal of these assets.
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Depreciation charged to operations for the fiscal year ended June 30, 2016 and 2015 amounted to $150,104 and $211,884, respectively.
See Note 12 for sale of E Build & Truss assets and discontinued operations.
5. Notes Payable
The following tables summarize the Company’s Notes Payable.
| Description | As of June 30, 2016 | |||
| Convertible notes | $ | 1,447,046 | ||
| Less discount to convertible notes payable | (330,958 | ) | ||
| Convertible notes, net | 1,116,088 | |||
| Notes payable | 1,831,220 | |||
| $ | 2,947,308 | |||
| Description | As of June 30, 2015 | |||
| Convertible notes | $ | 1,060,779 | ||
| Less discount to convertible notes payable | (317,174 | ) | ||
| Convertible notes, net | 743,605 | |||
| Notes payable - related party | 45,000 | |||
| Notes payable | 931,939 | |||
| $ | 1,720,544 | |||
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Convertible Notes
The following table is a roll-forward of the Company’s Convertible Notes from July 1, 2014 to June 30, 2016:
| Gross Convertible Notes Payable | Discount
on Convertible Notes Payable | Net Convertible Notes Payable | ||||||||||
| Balance as of June 30, 2014 | $ | 293,543 | $ | (149,889 | ) | $ | 143,654 | |||||
| Additions from new convertible notes issued for cash | 80,000 | (80,000 | ) | - | ||||||||
| Original issue discount | 96,515 | 96,515 | ||||||||||
| Additions on convertible inventory note | 1,001,326 | (1,001,326 | ) | - | ||||||||
| Assignment and assumption of debt | 410,000 | (410,000 | ) | - | ||||||||
| Repayment of Convertible Debt in cash | (124,559 | ) | - | (124,559 | ) | |||||||
| Conversion of convertible notes – principal to common stock | (100,518 | ) | - | (100,518 | ) | |||||||
| Forgiveness of Convertible Debt | (40,000 | ) | - | (40,000 | ||||||||
| Settlement of Convertible Debt for common stock | 27,513 | - | 27,513 | |||||||||
| Settlement of Convertible Debt for Preferred C stock | (583,041 | ) | - | (583,041 | ) | |||||||
| Accretion of discount to interest expense | - | 1,324,041 | 1,324,041 | |||||||||
| Balance as of June 30, 2015 | 1,060,779 | (317,174 | ) | 743,605 | ||||||||
| Additions from new convertible notes issued for cash | 412,000 | (383,000 | ) | 29,000 | ||||||||
| Original issue discount | 41,844 | (41,844 | ) | - | ||||||||
| Conversion of convertible notes – principal to common stock | (67,577 | ) | - | (67,577 | ) | |||||||
| Accretion of discount to interest expense | - | 411,061 | 411,061 | |||||||||
| Balance as of June 30, 2016 | $ | 1,447,046 | $ | (330,958 | ) | $ | 1,116,088 | |||||
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Inventory Note Payable - $833,333
On September 16, 2014, the Company entered into a Securities Purchase Agreement with Dominion Capital, LLC, whereby Dominion agreed to fund the Company with an aggregate of up to $750,000 in Subscription Amount corresponding to an aggregate of up to $833,333 in the form of a 10% Original Issue Discount Senior Secured Convertible Promissory Note due September 16, 2015 and a Common Stock Purchase Warrant for up to 20,000,000 shares. This funding was to be used exclusively to purchase lumber and chemicals and was to be dispersed from an escrow account. On September 29, 2014, Dominion transferred and assigned the Note and the Warrant to M2B Funding Corporation. The Note has a fixed conversion price of $0.20 subject to certain adjustments. The Company will repay the Note in monthly installments, with the final payment was due on October 16, 2015. The Company is in default on this note and is subject to an increase in the interest rate to eighteen percent (18%) per annum. During the year ended June 30, 2016 this investor converted a total of $35,877 into 219,321,375 shares of common stock. The Company recorded amortization of discounts totaling $230,905 during the year, leaving the discount balance $0 at June 30, 2016. The balance of this note at June 30, 2016 is $944,902 plus accrued interest of $364,057.
Note Payable - $100,000
On November 12, 2014, the Company entered into, with a private investor, a Promissory Note for $100,000, with an original issue discount of $20,000, for net proceeds to the Company of $80,000 for the purpose of funding operations and for general working capital. In addition, the Company issued 12,500,000 restricted common shares. On May 14, 2015, the holder converted $20,000 of this note into 10,000,000 shares of common stock. The conversion represented a substantial modification of the note’s original terms and as a result the Company recognized a loss of $47,000. The note was in default on May 15, 2015. Default provisions included additional interest at 18%. During the year ended June 30, 2016 this investor converted $31,700 into 304,000,000 shares of common stock. The Company recorded amortization of discounts totaling $69,918 during the year, leaving the discount balance $0 at June 30, 2016. The balance of this note at June 30, 2016 is $48,300 plus accrued interest of $11,966.
Senior Convertible Note - $14,167
On November 10, 2015, the Company entered into, with a private investor, a Senior Convertible Note for $14,167, with an original issue discount of $1,417, for net proceeds to the Company of $12,750 for the purpose of funding operations and for general working capital. The maturity date is one year from the issuance date. In the event of default, the Note is subject to an increase in the interest rate to twenty-two percent (22%) per annum. The holder can convert at a 40% discount to the lowest volume weighted average price in the previous twenty-five trading day period. In the event of default the conversion price is equal to 55% of the lowest traded price in the prior thirty trading days. The Company recorded amortization of discounts totaling $9,043 during the year, leaving the discount balance $5,124 at June 30, 2016. The balance of this note at June 30, 2016 is $14,167 plus accrued interest of $1,990.
Senior Convertible Note - $14,167
On November 30, 2015, the Company entered into, with a private investor, a Senior Convertible Note for $14,167, with an original issue discount of $1,417, for net proceeds to the Company of $12,750 for the purpose of funding operations and for general working capital. The maturity date is one year from the issuance date. In the event of default, the Note is subject to an increase in the interest rate to twenty-two percent (22%) per annum. The holder can convert at a 40% discount to the lowest volume weighted average price in the previous twenty-five trading day period. In the event of default the conversion price is equal to 51% of the lowest traded price in the prior thirty trading days. The Company recorded amortization of discounts totaling $8,267 during the year, leaving the discount balance $5,900 at June 30, 2016. The balance of this note at June 30, 2016 is $14,167 plus accrued interest of $1,819.
Senior Convertible Note - $13,889
On December 30, 2015, the Company entered into a convertible note for $13,889 (with an original issue discount of $1,389, for net proceeds to the Company of $12,500). The note accrued interest at 22% per annum. The note matures one year from the date of issuance. The holder can convert at a 40% discount to the lowest volume weighted average price in the previous twenty-five trading day period. In the event of default the conversion price is equal to 51% of the lowest traded price in the prior thirty trading days. The Company recorded amortization of discounts totaling $6,964 during the year, leaving the discount balance $6,925 at June 30, 2016. The balance of this note at June 30, 2016 is $13,889 plus accrued interest of $1,532.
Senior Convertible Note - $22,222
On June 30, 2016, the Company entered into a convertible note for $22,222 (with an original issue discount of $2,222, for net proceeds to the Company of $20,000). The note accrued interest at 12% per annum. The note matures one year from the date of issuance. The holder can convert at a 40% discount to the lowest volume weighted average price in the previous twenty-five trading day period. In the event of default the conversion price is equal to 51% of the lowest traded price in the prior thirty trading days. The Company recorded amortization of discounts totaling $0 during the year, leaving the discount balance $22,222 at June 30, 2016. The balance of this note at June 30, 2016 is $22,222 plus accrued interest of $0.
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Convertible Promissory Notes - $389,400
From March 17, 2016 through June 30, 2016, the Company entered into multiple (14) convertible notes totaling $389,400 (with an original issue discount of $35,400, for net proceeds to the Company of $354,000). The Notes are subject to upfront interest of $2,500 for each note and at default is subject to 24% default rate (most notes default in December of 2016 and some in March of 2017). The holder can convert into Series D Preferred Stock. The Company recorded amortization of discounts totaling $69,613 during the year, leaving the discount balance $290,787 at June 30, 2016. The balance of this notes at June 30, 2016 is $389,400 plus accrued interest of $35,000.
Derivative Liabilities:
During the years ended June 30, 2016 and 2015, the Company issued convertible notes, convertible preferred stock, warrants, and stock options that can be converted to common stock in connection with raising equity and debt financing and granting compensation. As of June 30, 2016 and 2015, the Company’s number of potential common shares plus the number of actual common shares outstanding (“Committed Shares”) exceeded the number of common shares authorized to issue in accordance with ASC 815-40-19 “Contracts in Entity’s Own Equity”. The number of outstanding common shares plus the potential common share liability has exceeded the amount of authorized shares, therefore the Company has to employ ASC 815-40-19 (“ASC 815”) to value common share equivalents potentially issuable to settle conversions of convertible notes, convertible preferred shares and exercise of options and warrants.
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The Company values its derivative financial instruments, consisting primarily of embedded conversion features for its stock options, warrants, convertible debt, and convertible preferred stock at issuance at fair value and revalues its derivative financial instruments at the end of each reporting period or in the case of any conversion or modification of terms, at the date of any such modification or conversion. Any change in fair value is charged to earnings of the period where the derivative financial instrument is modified or converted. During the current fiscal year, with the increase in issuance of Preferred D and Convertible Notes that have a conversion price predicated on the stock price the fair value of these derivative financial instruments was determined using a path-dependent Monte Carlo simulation. In the year ended June 30, 2015 the fair values of the embedded conversion features for the stock options, warrants, convertible debt, and convertible preferred stock were determined using the Black-Scholes option pricing model. The Company changed from the Black Scholes method to the Monte Carlo method as the Company considered the Monte Carlo methodology to be clearly defined in the accuracy of variables and iterations.
The ranges of inputs (or assumptions) the Company used to value the derivative liabilities at note or equity issuance, conversion dates, and at period end during the year ended June 30, 2016 were as follows:
| (1) | dividend yield of 0% |
| (2) | expected annual volatility of 168.43% to 351.61% |
| (3) | risk-free interest rate of 0.24% to 1.33% |
| (4) | expected life of 0.33 to 3.24 years, and |
| (5) | estimated fair value of the Company’s common stock of $0.0001 to $0.0021 per share. |
For the year ended June 30, 2016, the Company issued an aggregate of $453,844 of convertible notes net of debt discount, including $64,445 in new senior convertible notes with one year maturities, and $389,399 in convertible promissory notes that mature from to December 30, 2016 to January 30, 2017. The senior convertible notes are convertible into the Company’s common shares, at the holder’s option, at conversion prices equal to 60% of the stock’s lowest volume weighted average trading price in the 25 trading days immediately prior to the date of conversion. The senior convertible notes are convertible into the Company’s common shares, at the holder’s option into the Company’s Preferred Series D.
The ranges of inputs (or assumptions) the Company used to value the derivative liabilities at note or equity issuance, conversion dates, and at period end during the year ended June 30, 2015 were as follows:
| (1) | dividend yield of 0% |
| (2) | expected daily volatility of 13.24% to 36.98% |
| (3) | risk-free interest rate of 0.23% to 1.85% |
| (4) | expected life of 0.5 days to 3 years, and |
| (5) | estimated fair value of the Company’s common stock of $0.002 to $0.046 per share. |
For the year ended June 30, 2015, the Company issued an aggregate of $913,333 of convertible promissory notes net of debt discount, including $100,000 in new convertible notes, and increasing existing notes outstanding balances by $236,175 for additional fees and conversion terms, to various creditors that mature from to September 16, 2014 to May 14, 2015. These notes are convertible into the Company’s common shares, at the holder’s option, at conversion prices equal to the lesser of (a) a “Fixed Price” ranging from $0.002 to $0.20 or (b) an amount ranging from 50% to 60% of the stock’s trading price, defined as the lowest average or actual (range of) (1) one to (5) five trading prices of the (range of) 1 to 20 trading days immediately prior to the date of conversion.
For all convertible notes described in the paragraphs above and for the options, warrants and convertible preferred Series C and Series D shares described in Note 8, the fair value of the resulting derivative liability was $37,376,605 and $14,198,848 at June 30, 2016 and June 30, 2015, respectively, with corresponding debt discounts with an aggregate balance of $330,958 and $317,174, respectively.
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The following is a roll-forward of derivative liabilities from June 30, 2014 to June 30, 2016:
| Balance as of June 30, 2014 | $ | 20,504,553 | ||
| Additions related to embedded conversion features of convertible notes issued | 3,400,061 | |||
| Additions related to embedded conversion features of Preferred C Stock issued | 3,804,541 | |||
| Additions related to embedded conversion features of Preferred D Stock issued | 8,260,305 | |||
| Additions related to embedded conversion features of warrants issued | 438,590 | |||
| Additions related to embedded conversion features of stock options issued | 27,292 | |||
| Decrease from extinguishment of convertible note for Preferred C shares | (781,319 | ) | ||
| Conversion of convertible debt to common stock | (165,713 | ) | ||
| Conversion of Preferred C shares to common stock | (2,701,837 | ) | ||
| Other decreases | (3,350 | ) | ||
| Gain on decrease in value of derivative liabilities | (18,584,275 | ) | ||
| Balance as of June 30, 2015 | 14,198,848 | |||
| Additions related to embedded conversion features of convertible notes issued | 1,232,428 | |||
| Additions related to embedded conversion features of Preferred D Stock issued | 2,390,099 | |||
| Decrease from Recapture of Preferred C shares for unpaid balance associated with an assumption and assignment of liabilities | (1,121,587 | ) | ||
| Conversion of convertible debt to common stock | (130,762 | ) | ||
| Conversion of Preferred C shares to common stock | (701,247 | ) | ||
| Loss on increase in value of derivative liabilities | 21,508,826 | |||
| Balance as of June 30, 2016 | $ | 37,376,605 |
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Notes Payable – Other at June 30, 2016 consist of:
Auto Notes Payable
In April, 2016 the company defaulted on auto loan resulting in a repossession and disposition of $51,000 with a remaining balance due with fees of $20,123 which is now being paid on a monthly payment of $635 and is being recorded in other – payables and accrued expenses.
Secured Promissory Note - $44,500
At June 30, 2012, the Company was indebted for $44,500 for amounts received in prior years for operating expenses in exchange for a secured promissory note from a third party entered into during 2010. This amount is due on demand and non-interest bearing. The balance of this note at June 30, 2016 is $44,500 and accrued interest of $0. Creditor claims amount owed is $360,000, which the Company disputes.
Inventory Note Payable – up to $1,200,000
On July 18, 2014, the Company signed a Secured Revolving Promissory Note for up to One Million Two Hundred Thousand Dollars ($1,200,000) with an investor to facilitate purchase of inventory for orders from the Company’s material customer. The note is secured by the inventory. Repayment of the note is facilitated by the assignment of the accounts receivable directly from the Company’s material customer to the investor. The initial term of the note is for six months with an option to extend for an additional six-month period. The note will bear an 18% interest rate per annum with a maximum default interest of 24% per annum. Within three (3) Business Days after the date of this Note, the Company shall deliver to Payee a Warrant, in a form acceptable to Payee, exercisable for 900,000 shares of the Company’s Common Stock at a price per share equal to the closing price of the Common Stock on the trading day prior to the date of such Warrant. Upon receipt of such Warrant, Payee shall execute a 12-month lock-up agreement in customary form and reasonably acceptable to Payee, currently no warrant or lock-up agreements have been issued or executed. During the year ended June 30, 2015 the Company drew $504,593 in payments made on behalf of the Company to its suppliers and the Company’s customers repaid $321,137 during the year ended June 30, 2015. The balance of this note at June 30, 2016 is $183,456 and accrued interest of $59,846.
Note Payable - $20,000
On March 25, 2015, the Company entered into a note agreement for $20,000. The note was due April 24, 2015. The Note carries a default interest rate of 10%. The balance of this note at June 30, 2016 is $20,000 and accrued interest of $2,471.
Note Payable - $500,000
On February 14, 2014 the Company entered into a note agreement for $500,000. The note was due May 14, 2014 and was extended until March 31, 2016. The Note carries minimum interest of $45,000 for the initial term and a default rate of 37%. The balance of this note at June 30, 2016 is $85,911 and accrued interest of $76,443.
Lease in Default - $151,275
Effective April 1, 2015 and up through September 30, 2015, the Company has incurred $151,275 in a default on their facilities lease. The default rate on the lease is 10%. The balance of this note at June 30, 2016 is $151,275 and accrued interest of $15,169.
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Note Payable - $60,000
On April 2, 2015, a shareholder loaned the company $60,000 on a secured promissory note with a 6% per annum interest rate and a 30-day maturity date. The Note carries a default interest rate of 10%. The balance of this note at June 30, 2016 is $60,000 and accrued interest of $7,282.
Note Payable - $250,000
On April 11, 2014 the Company entered into a note agreement for $250,000. The note was due July 1, 2014 and was extended until March 31, 2015. The Note carries minimum interest of $22,500 with a default rate of 18%. The balance of this note at June 30, 2016 is $150,000 and accrued interest of $77,400.
Note Payable - $100,000
On November 19, 2014, the Company entered into a note for $100,000 with annual interest of 6. The note was due on February 19, 2015 and extended to August 21, 2015. Pursuant to the default provisions of the note, the note will accrue interest at 18% per annum. The balance of this note at June 30, 2016 is $100,000 and accrued interest of $20,828.
Note Payable - $20,000
On January 16, 2015, the Company entered into a note for $20,000 with annual interest of 6%. The note was due on April 17, 2015 and extended to July 17, 2015. Pursuant to the default provisions of the note, the note will accrue interest at 18% per annum. The balance of this note at June 30, 2016 is $20,000 and accrued interest of $3,942.
Future Receivables Sale Agreement - $75,000
Effective March 6, 2015, the Company entered into an agreement whereby it sold a percentage of its future receivables in exchange for $75,000. Per the terms of this agreement, the Company would repay a total of $102,750 via daily remittance of twelve percent (12%) of its accounts receivable collections and other receipts from the sale of its products and services. Alternatively, the Company could elect to repay $102,750 total via a flat daily remittance of $1,038 (“Alternative Daily Amount”) until that amount is repaid in full. The Company has accounted for this agreement as a note payable with an estimated maturity date of July 30, 2015, resulting in an imputed interest rate of 184%. The balance of this note at June 30, 2016 is $0.
Future Receivables Sale Agreement - $225,000
Effective July 29, 2015, the Company entered into an agreement whereby it sold a percentage of its future receivables in exchange for $220,500 ($225,000 less a $4,500 setup fee). The Company is to repay $309,375 via daily remittance of a percentage of its future accounts receivable collections and other receipts from the sale of its products and services. Per the terms of the agreement, the Company made an alternative election to repay the $309,375 via a flat daily remittance of $2,163 until that amount is repaid in full. The Company has accounted for this agreement as a note payable with an estimated maturity date of March 9, 2016, resulting in an imputed interest rate of 123%. The balance of this note at June 30, 2016 is $141,096.
Settlement and Release Agreement - $100,000
On July 17, 2015, the Company entered into a Settlement and Release Agreement (the “Settlement Agreement”) with Eco Prime, LLC. The Settlement Agreement resolves any disputes arising from the Limited Asset Purchase Agreement entered into between the parties on March 19, 2014. Pursuant to the terms of the Settlement Agreement, the Company paid One Hundred Thousand Dollars ($100,000) to acquire the assets from EcoPrime and released each party from any liability under the March 2014 agreement. In order to fund the $100,000 payment, the Company entered into a Promissory Note with a private investor dated July 14, 2015. Pursuant to the terms of the note, it had a 60-day maturity and a flat 25% interest rate. The note was due on September 14, 2015 but, to date, has not been paid off and is currently in default. The note incurs additional default interest of 6%. The balance of this note at June 30, 2016 is $85,000 and accrued interest of $18,020.
In connection with this agreement, the Company borrowed an additional $32,000 from this same party at 0% in a short-term bridge financing arrangement which has been repaid.
Future Receivables Sale Agreement - $70,000
Effective September 16, 2015, the Company entered into a second similar agreement whereby it sold a percentage of its future receivables in exchange for $70,000. Per the terms of the agreement, the Company elected to repay $96,250 via a flat daily remittance of $1,019 until that amount is repaid in full. The Company has not made payments on this note since January 2016. The Company has accounted for this agreement as a note payable with an estimated maturity date of February 18, 2016, resulting in an imputed interest rate of 177%. The balance of this note at June 30, 2016 is $36,315.
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Future Receivables Sale Agreement - $120,000
Effective September 28, 2015, the Company entered into a third similar agreement whereby it sold a percentage of its future receivables in exchange for $120,000. Per the terms of the agreement, the Company is to repay $153,000 via a flat daily remittance of $1,196 until that amount is repaid in in full. The Company has not made payments on this note since January 2016. The Company has accounted for this agreement as a note payable with an estimated maturity date of April 5, 2016, resulting in an imputed interest rate of 98%. The balance of this note at June 30, 2016 is $96,165.
Promissory Note - $275,000
On December 15, 2015, a shareholder loaned the company $275,000 on a promissory note with a 24% per annum interest rate with monthly payments of $25,000 commencing in April 2016 until paid in full. The balance of this note at June 30, 2016 is $275,000 and accrued interest of $35,803.
Assignment and Assumption Agreement - $377,000
On March 4, 2016, the Company recaptured unpaid balance associated with an assumption and assignment of liabilities for the issuance of Preferred C shares that was entered into on May 15, 2014. Pursuant to the terms of the Recapture Agreement, the Company entered into a promissory demand note bearing interest a 6% for the unpaid balance of $377,000, and cancelled 3,770 Preferred C shares previously issued. Accrued interest is $7,313. This resulted in a gain on settlement of $744,587.
Loans Payable – Related Party
None
6. Related Party Transactions
See also Note 5 for Loans payable – related parties and equity issuances in Note 8.
Employment Agreement –Chief Executive Officer
Mr. Comery was appointed as our Chief Executive Officer as of June 15, 2015. We do not have a formal Employment Agreement finalized with Mr. Comery at this point but we are working towards finalizing it. The Compensation Committee has, however, met and approved the major points of his compensation. Mr. Comery is earning an annual salary of $250,000, provided that the Compensation Committee has agreed to determine whether this should be increased to $275,000 beginning when the quarterly net income is positive. The Company will also pay compensating him $1,700 per month for medical benefits and a $500 per month car allowance. In addition, the Compensation Committee agreed to a $15,000 one-time reimbursement for relocation expenses. Lastly, Mr. Comery will be eligible to participate in the Employee Incentive Compensation Plan upon the Board’s discretion.
| (a) | Annual salary of $250,000 | |
| (b) | If the Compensation Committee has agreed to determine whether Tom Comery salary should be increased to $275,000 beginning when the quarterly net income is positive. | |
| (c) | The Company will compensate Tom Comery $1,700 per month for medical benefits and a $500 per month car allowance. | |
| (d) | The Compensation Committee has agreed to a $15,000 one-time reimbursement for relocation expenses. Mr. Comery will be eligible to participate in the Employee Incentive Compensation Plan upon the Board’s discretion |
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Employment Agreement –Chief Technical Officer
Effective November 1, 2013, the Company entered into an employment agreement with its Chief Technical Officer or “CTO” for a term of five (5) years and shall be renewed automatically for succeeding terms of one (1) year each (“Renewal Terms”) unless either party gives notice to the other at least 30 days prior to the expiration of any term of said party’s intention not to renew this Agreement. Key provisions of the agreement include:
| (a) | Annual salary of $250,000 | |
| (b) | Cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2014 exceed $25,000,000, subject to certain limitations. If the company achieves 80% of the bonus target then the employee is entitled to 50% of the defined bonus for the defined period. | |
| (c) | Additional cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2015 exceed $50,000,000, subject to certain limitations. In addition, when the aforementioned gross sales targets are obtained the employee will be eligible for a 20% increase in salary year over year. | |
| (d) | Option grants to purchase 40,000 (800,000 pre-split) shares of the company’s common stock at an exercise price of $2.00 per share ($0.10 pre-split), expiring April 1, 2016 (five-year life). Such options will vest over a two-year period. These options were valued at $4,656, as determined using the Black-Scholes option-pricing model using a risk free rate of 1.37%, volatility of 149% and a trading price of the underlying shares of $0.16 ($0.008 pre-split). | |
| (e) | Severance pay is due the CTO upon separating from service, with or without cause, equaling his then current monthly salary multiplied by the number of full years that he has been employed with the Company prior to separation. |
Accrued compensation due the Chief Technical Officer at June 30, 2016 totaled $689,930. Compensation charged to operations during the year ended June 30, 2016 on option grants totaled $0.
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Accrued compensation due the Chief Technical Officer at June 30, 2015 totaled $634,011. Compensation charged to operations during the year ended June 30, 2015 on the option grants totaled $554. The CTO also had 20,000 (400,000 pre-split) options granted from a previous employment agreement.
7. Fair Value of Assets and Liabilities
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in the principal market (or most advantageous market, in the absence of a principal market) for the asset or liability in an orderly transaction between market participants at the measurement date. Further, entities are required to maximize the use of observable inputs and minimize the use of unobservable inputs in measuring fair value, and to utilize a three-level fair value hierarchy that prioritizes the inputs used to measure fair value. The three levels of inputs used to measure fair value are as follows:
Level 1 — Quoted prices in active markets for identical assets or liabilities.
Level 2 — Observable inputs other than quoted prices included within Level 1, including quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; and inputs other than quoted prices that are observable or are derived principally from, or corroborated by, observable market data by correlation or other means.
Level 3 — Unobservable inputs that are supported by little or no market activity, are significant to the fair value of the assets or liabilities, and reflect the Company’s own assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances.
Application of Valuation Hierarchy
A financial instrument’s categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The following is a description of the valuation methodology used to measure fair value, as well as the general classification of such instruments pursuant to the valuation hierarchy.
Advances from Related Party. The Company assessed that the fair value of this liability approximates its carrying value due to its short-term nature.
Notes Payable – Related Party. The Company assessed that the fair value of this liability to approximate its carrying value based on the effective yields of similar obligations.
Convertible Notes Payable. The Company assessed that the fair value of this liability approximates its carrying value due to its short-term nature.
Loans Payable - Related Party. The Company assessed that the fair value of this liability approximates its carrying value due to its short-term nature.
Loans Payable - Other. The Company assessed that the fair value of this liability approximates its carrying value due to its short-term nature.
Derivative Liabilities. The Company assessed that the fair value of these liabilities using observable inputs described in level 2 above. The methodology described above may produce a current fair value calculation that may not be indicative of net realizable value or reflective of future fair values. If readily determined market values became available or if actual performance were to vary appreciably from assumptions used, assumptions may need to be adjusted, which could result in material differences from the recorded carrying amounts. The Company believes its method of determining fair value is appropriate and consistent with other market participants. However, the use of different methodologies or different assumptions to value certain financial instruments could result in a different estimate of fair value.
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8. Stockholders’ Deficit
Preferred Stock
Series A Preferred Stocks:
On January 27, 2014 the Board of Directors authorized 30,000 shares of Class A Preferred Stock with a par value of $0.001 per share.
The terms of the preferred series A shares are as follows:
| ● | Series A Preferred stock is not convertible. | |
| ● | Each share of Series A Preferred stock is entitled to 100,000 votes on matters that the holders of the Company’s common stock may vote. | |
| ● | The Series A Preferred stock is redeemable by the company for no consideration at any time. | |
| ● | The Series A Preferred stock cannot vote on election or removal of directors. | |
| ● | The Series A Preferred stock has no stated dividend rate and has no liquidation preference. |
As of June 30, 2016 and 2015, there was no Series A Preferred Stock issued or outstanding.
Series B 12% Convertible Preferred Stock:
On February 26, 2014 the Board of Directors authorized 6,750 shares of Class B Preferred Stock (“Preferred B Stock”) with a par value of $0.001. On April 17, 2014, an additional 2,500 shares of Preferred B Stock with a par value of $0.001, for a total authorized and issued amount of 9,250.
The terms of the Preferred B Stock are as follows:
| ● | The Preferred B Stock shall have no voting rights. | |
| ● | The Preferred B Stock convertible at any time at 60% of the lowest VWAP of the 20 days leading up to conversion multiplied by the stated value of $100. | |
| ● | The Preferred B Stock has a 12% per annum stated dividend rate, which is calculated daily on a 360-day year. | |
| ● | The Preferred B Stock shall have a liquidation preference equal to the stated value of each share of Preferred Stock or $100 per share. |
As of June 30, 2016 and 2015, there was no Series B Preferred Stock issued or outstanding.
Series C 12% Convertible Preferred Stock:
On May 30, 2014, the Company authorized 120,000 shares of a newly-created Series C 12% Convertible Preferred Stock, par value $0.001 per share (the “Preferred C Stock”).
The terms of the Preferred C Stock are as follows:
| ● | The Preferred C Stock shall have no voting rights. | |
| ● | The Preferred C Stock is convertible at any time at 60% of the lowest VWAP of the 20 days leading up to conversion multiplied by the stated value of $100. | |
| ● | The Preferred C Stock has a 12% per annum stated dividend rate, which is calculated daily on a 360 day year. Any dividends, whether paid in cash or shares of Common Stock, that are not paid within five trading days following a dividend payment date shall continue to accrue and shall entail a late fee at 18% per annum. In addition, the dividend rate of 12% is subject to an adjustment up to 18% if at any time the Company does not have an amount equal to or greater than 150% of the authorized but unissued common shares that would be required (on an “if converted” basis) to settle the conversion of Preferred C Stock outstanding. As of June 30, 2016, the Company has accrued dividends on Preferred C Stock in the amount of $3,628,584. The amount of dividends has not yet been determined by the Company and the holders whether to be payable in cash, common stock or additional shares of Preferred C Stock. | |
| ● | The Preferred C Stock shall have a liquidation preference equal to the stated value of each share of Preferred Stock or $100 per share. |
Preferred C Stock converted to Common Stock
During the year ended June 30, 2016, according to the conversion terms described above, the investors converted 3,580 shares of Preferred C Stock representing value of $358,042 into 2,624,467,768 shares of the Company’s Common Stock. The Company had 97,090 and 104,440 shares of Preferred C stock issued and outstanding as of June 30, 2016 and 2015, respectively.
Preferred C Stock issued for cash
During the year ended June 30, 2016, the investors purchased 0 shares of Preferred C Stock for $0 of cash. During the year ended June 30, 2015, the investors purchased 10,000 shares of Preferred C Stock for $1,000,000 of cash.
Preferred C Stock issued for debt assumption
During the year ended June 30, 2016, the Company recaptured unpaid balance associated with an assumption and assignment of liabilities for the issuance of Preferred C shares that was entered into on May 15, 2014. Pursuant to the terms of the Recapture Agreement, the Company entered into a promissory demand note bearing interest a 6% for the unpaid balance of $377,000, and cancelled 3,770 Preferred C shares previously issued. This resulted in a gain on settlement of $744,587. During the year ended June 30, 2015, at total of 10,771 shares of Preferred C Stock were issued to investors for debt assumption. In exchange for 4,941 of these shares, $494,172 of accounts payable was assumed by one investor. Additionally, in exchange for the remaining 5,830 shares, a convertible note with a balance of $590,428 was exchanged for Preferred C shares by the same investor.
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Preferred C Stock, have been valued similar to the convertible notes, comprising a part of the derivative liability which is calculated using the Monte Carlo simulation model. The range of inputs (or assumptions) the Company used to value the derivative liabilities at date of issuances, conversion dates, and at period end during the years ended June 30, 2016 and June 30, 2015 are disclosed under the derivative liabilities section (See Note 5).
The following table provides the activity of the Company’s preferred C stock for the year ended June 30, 2016:
| Balance as of June 30, 2015 | 104,440 | |||
| Preferred C Stock issued for cash | - | |||
| Preferred C Stock cancelled for debt | (3,770 | ) | ||
| Preferred C Stock converted into Common Stock | (3,580 | ) | ||
| Balance as of June 30, 2016 | 97,090 |
During the year ended June 30, 2016, according to the conversion terms described above, the investors converted 3,580 shares of Preferred C Stock representing value of $358,042 into 2,624,467,768 shares of the Company’s Common Stock.
Series D 12% Convertible Preferred Stock:
On March 31, 2015, the Company authorized 10,000 shares of a newly-created Series D 12% Convertible Preferred Stock, par value $0.001 per share (the “Preferred D Stock”). Effective July 2, 2015, the Company increased the number of authorized shares to 20,000. Effective August 22, 2016, the Company increased the number of authorized shares to 30,000.
The terms of the Preferred D Stock are as follows:
| ● | The Preferred D Stock shall have no voting rights. | |
| ● | The Preferred D Stock is convertible at any time at 60% of the lowest VWAP of the 30 days leading up to conversion multiplied by the stated value of $100. | |
| ● | The Preferred D Stock has a 12% per annum stated dividend rate, which is calculated daily on a 360 day year. Any dividends, whether paid in cash or shares of Common Stock, that not paid within five trading days following a dividend payment date shall continue to accrue and shall entail a late fee at 18% per annum. In addition, the dividend rate of 12% is subject to an adjustment up to 18% if at any time the Company does not have an amount equal to or greater than 150% of the authorized but unissued common shares that would be required (on an “if converted” basis) to settle the conversion of Preferred C Stock outstanding. As of June 30, 2016, the Company has accrued dividends on Preferred D Stock in the amount of $339,235. The amount of dividends has not yet been determined by the Company and the holders whether to be payable in cash, common stock or additional shares of Preferred D Stock. | |
| ● | The Preferred D Stock shall have a liquidation preference equal to the stated value of each share of Preferred Stock or $100 per share. |
Preferred D Stock issued for cash
During the year ended June 30, 2016, investors purchased 10,968 shares of Preferred D Stock for $1,096,632 of cash. During the year ended June 30, 2015, investors purchased 9,979 shares of Preferred D Stock for $1,096,632 of cash.
The following table provides the activity of the Company’s preferred D stock for the year ended June 30, 2016:
| Balance as of June 30, 2015 | 9,979 | |||
| Preferred D Stock issued for cash | 10,968 | |||
| Preferred C Stock converted into Common Stock | - | |||
| Balance as of June 30, 2016 | 20,947 |
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Common Stock
During the year ended June 30, 2016, the Company issued a total of 3,147,789,143 shares of its common stock as follows:
| Shares | Amount | |||||||
| Shares issued for convertible debt conversions | 523,321,375 | 67,577 | ||||||
| Shares issued for conversion of Preferred C shares | 2,624,467,768 | 358,042 | ||||||
| Total | 3,147,789,143 | $ | 425,619 | |||||
During the year ended June 30, 2015, the Company issued a total of 448,447,307 shares of its common stock as follows:
| Shares | Amount | |||||||
| Shares issued for cash | 37,500,000 | $ | 100,000 | |||||
| Shares issued for convertible debt conversions | 14,598,450 | 88,118 | ||||||
| Shares issued in settlement of debt | 12,250,000 | 109,000 | ||||||
| Shares issued for interest expense and debt discount | 55,000,000 | 262,678 | ||||||
| Shares issued for conversion of Preferred C shares | 329,098,857 | 10,725 | ||||||
| Total | 448,447,307 | $ | 570,521 | |||||
Treasury Stock
As of June 30, 2016 and 2015, the Company held 1,433,046 shares of common stock as treasury stock.
Warrants
As discussed in note 5, the Company issued a Common Stock Purchase Warrant, allowing M2B Funding Corporation the right to purchase up to 20,000,000 shares of Common Stock on September 16, 2015 and expiring on September 16, 2019. The exercise price per share of the Common Stock under these warrants is $0.02 subject to certain adjustments. The 20,000,000 warrants were valued using the Black-Scholes Option Model with a risk free interest rate of 1.78%, volatility of 261.05%, and trading price of $0.022 per share. As of June 30, 2016 the warrants had a value of $1,767.
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The following is a schedule of warrants outstanding as of June 30, 2016:
| Warrants Outstanding | Weighted Average Exercise Price | Weighted Average Remaining Life | ||||||||||
| Balance, June 30, 2014 | 25,000,000 | $ | 0.00 | 1.42 | ||||||||
| Warrants issued | 20,000,000 | 0.02 | 5.0 | |||||||||
| Warrants expired | - | - | - | |||||||||
| Warrants cancelled | (25,000,000 | ) | - | - | ||||||||
| Balance, June 30, 2015 | 20,000,000 | $ | 0.02 | 4.21 years | ||||||||
| Warrants issued | - | $ | - | |||||||||
| Warrants expired | - | - | - | |||||||||
| Warrants cancelled | - | - | - | |||||||||
| Balance, June 30, 2016 | 20,000,000 | $ | 0.02 | 3.21 years | ||||||||
As of June 30, 2016, all of the 20,000,000 warrants were fully exercisable.
Options
Prior to June 30, 2015, the Company granted options to its Chief Technical Officer to purchase 1,200,000 shares of its common stock. The 1,200,000 options have an exercise price of $0.10 per share and expire in 5 years. As of June 30, 2016, 800,000 options to the Chief Technical Officer remain outstanding.
As discussed in note 6, the Company granted options to its Chief Executive Officer as in connection with his termination agreement. A total of 5,786,227 options were granted based on the number of shares of Common Stock equal to one percent (1%) of the total number of shares outstanding on the date of grant. The options have an exercise price equal to the closing bid price on the date of grant ($0.0038 per share) and an expiration date of ten (10) years from the date of issuance. A total of 5,786,227 options were granted under these terms. The options vest fifty percent (50%) on the effective date of the agreement, with the remaining fifty percent (50%) vesting six (6) months after the effective date of the agreement. The options were valued at $21,987, as determined using the Black-Scholes option-pricing model using a risk free rate of 2.35%, volatility of 257% and a trading price of the underlying shares of $0.038.
The following is a schedule of options outstanding as of June 30, 2016:
| Options
Outstanding | Weighted
Average Exercise Price | Weighted
Average Remaining Life | Aggregate
Intrinsic Value | ||||||||||||
| Balance, June 30, 2014 | 3,200,000 | $ | 0.001 | 3 years | - | ||||||||||
| Options granted | 5,786,228 | $ | 0.0038 | - | |||||||||||
| Options cancelled/expired | (200,000 | ) | - | - | - | ||||||||||
| Balance, June 30, 2015 | 6,986,228 | $ | 0.089 | 2 years | $ | - | |||||||||
Options cancelled / expired |
(400,000 | ) | $ | 0.0038 | - | ||||||||||
| Balance, June 30, 2016 | 6,586,228 | $ | 0.0089 | 8.10 Years | $ | - | |||||||||
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As of June 30, 2016, a total of 6,586,228 of the 6,586,228 options were fully vested. Compensation expense of $0 remaining, will be recognized over the remaining lives of the options.
9. Income Taxes
Deferred income tax assets and liabilities are computed annually for differences between financial statement and tax bases of assets and liabilities that will result in taxable or deductible amounts in the future based on enacted tax laws and rates applicable to the periods in which the differences are expected to affect taxable income. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized. Income tax expense is the tax payable or refundable for the period plus or minus the change during the period in deferred tax assets and liabilities.
The effective tax rate on the net loss before income taxes differs from the U.S. statutory rate as follows:
| June 30, | ||||||||
| 2016 | 2015 | |||||||
| Current expense – Benefit | ||||||||
| Federal | $ | - | $ | - | ||||
| State | - | - | ||||||
| Total current expense (benefit) | - | - | ||||||
| Deferred Benefit | ||||||||
| Federal | $ | - | $ | - | ||||
| State | - | - | ||||||
| Total deferred benefit | - | - | ||||||
| U.S statutory rate | 34.00 | % | 34.00 | % | ||||
| Permanent differences | 43.00 | % | 43.00 | % | ||||
| Less valuation allowance and other | -48.3 | % | -48.3 | % | ||||
| Effective tax rate | 0.00 | % | 0.00 | % | ||||
The significant components of deferred tax assets and liabilities are as follows:
| June 30, | ||||||||
| 2016 | 2015 | |||||||
| Deferred tax assets | ||||||||
| Bad debt reserve | $ | 59,215 | $ | 59,215 | ||||
| Stock based compensation | 4,179,570 | 4,179,570 | ||||||
| Net operating losses | 34,494,644 | 25,458,015 | ||||||
| Inventories | 245,487 | 245,487 | ||||||
| Payroll and taxes payable | 3,321,045 | 2,751,328 | ||||||
| 32,693,615 | 32,693,615 | |||||||
| Deferred tax liability | ||||||||
| Accumulated depreciation | 644,734 | 453,938 | ||||||
| Net deferred tax assets | 41,650,988 | 32,239,676 | ||||||
| Less valuation allowance | (41,650,988 | ) | (32,239,676 | ) | ||||
| Deferred tax asset - net valuation allowance | $ | - | $ | - | ||||
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The Company has incurred operating losses of $101,454,836 which, if unutilized, will expire through to 2036. Future tax benefits, which may arise as a result of these losses, have not been recognized in these financial statements, and have been offset by a valuation allowance.
10. Commitments and Contingencies
Lease commitments
Real Estate Lease – San Diego, California
In February 2016, the Company entered into an agreement to lease office facilities with a small warehouse at our San Diego, CA location. The term of the lease is for three years. The initial monthly installment of base rent amount was calculated by multiplying the initial monthly base rental rate per rentable square foot amount by the number of rentable square feet of space in the premises. In all subsequent base rent payment periods during the lease term commencing on March 1, 2017, the calculation of each monthly installment of base rent amount
reflects an annual increase of three and one half percent (3.5%). The details on the lease are as follows:
| ● | Base rentals - $2,807 per month. | |
| ● | Base rental increase of 3.5% per year. | |
| ● | Company is responsible to pay its proportionate share of common area maintenance – estimated at $963 per month | |
| ● | Termination date – April 30, 2019 | |
| ● | Renewal Option – Yes | |
| ● | Security Deposit - $9,333. |
Rent expense related to this lease was $17,966 and $0 for the fiscal year ended June 30, 2016 and 2015, respectively.
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Real Estate lease-Augusta Georgia
In July 2016, the company entered a lease for a manufacturing facility in Augusta, Georgia.
| ● | Augusta, Georgia (Periodic Month to Month Tenancy as of July, 2016) | |
| ● | Month to month agreement was entered into and agreed upon. | |
| ● | We pay a monthly lease payment of $3,000. | |
| ● | We can use the premises for processing and treatment of wood and wood products, but is currently used as a storage facility |
Rent Disclosure:
| San Diego, CA | ||||
| 2016 | 54,281 | |||
| 2017 | 45,621 | |||
| 2018 | 46,813 | |||
| 2019 | 40,889 | |||
| Thereafter | ||||
| 187,604 | ||||
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Purchase commitments
Legal Proceedings
Except as disclosed below, we are currently not involved in any litigation that we believe could have a materially adverse effect on our financial condition or results of operations. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the executive officers of our company or any of our subsidiaries, threatened against or affecting our company, our common stock, any of our subsidiaries or of our company’s or our company’s subsidiaries’ officers or directors in their capacities as such, in which an adverse decision could have a material adverse effect.
At June 30, 2016, the Company owed approximately $730,000 in past due federal and state payroll taxes, of which approximately $660,000 is due to the Internal Revenue Service (IRS). The Company subsequently paid $25,000 to the IRS under a $20,000 per month payment arrangement which the Company is in default. The Company continues to negotiate with the IRS to re-establish a payment plan for past due taxes. Currently the IRS has acknowledged the situation and so far, has set an expectation that we must stay current with our federal and state taxes. The Company continues to stay current with state and federal payroll tax liabilities. No such arrangement exists for State tax purposes.
On October 6, 2015, the landlord for the Vista, CA location filed a complaint against us in the Superior Court of California, County of San Diego for a Breach of Contract for a Promissory Note that we issued to him in connection with unpaid lease payments that we owed in the amount of $151,272.65 under the terms of the lease that we entered into for our Vista, CA location. As of June 30, 2016, no payments have been made against this obligation.
On May 27, 2016, the prior landlord of the Tacoma, WA, facility obtained a judgment for the collection of unpaid rent in the amount of 168,998 inclusive of interest & attorney fees.
On or about October 15, 2016, A Summons & Complaint has been filed for the sum of $31,118 pertaining to a default on a contract with World Global Financing.
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From time to time the Company may be named in claims arising in the ordinary course of business. Currently, no legal proceedings or claims, other than those disclosed above, are pending against or involve the Company that, in the opinion of management, could reasonably be expected to have a material adverse effect on its business and financial condition.
11. Subsequent Events
On July 17, 2016, The Company issued 55,875,000 shares of common stock in lieu of $5,588 of accrued interest of the convertible note dated November 21, 2014.
On July 17, 2016, The Company issued 11,175,000 shares of common stock in lieu of $1,118 of accrued interest of the convertible note dated January 16, 2015.
From July 1, 2016 to October 13, 2016, according to the conversion terms of the series C preferred shares, the investors converted 87 shares of Preferred C Stock representing a value of $8,760 into 146,000,000 shares of the Company’s Common Stock.
12. Discontinued Operations
On April 15, 2015, the company completed the sale of E Build & Truss to former employees of the company. In exchange for certain assets, the purchaser accepted $112,102 of liabilities related to E Build and Truss. As such, this has been accounted for as a discontinued operation in the June 30, 2015 financial statements. The company has recorded a loss from discontinued operations of $216,164 as a result of this transaction, which is comprised of $363,500 in revenues, $44,702 in gain on asset sale and $624,366 in costs and expense. Included in the $1,148,229 of liabilities from discontinued operations in 2015 are $205,113 in accounts payable and $943,116 in accrued expenses related to E Build and Truss.
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| Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
There have been no disagreements between the Company and its independent accountants on any matter of accounting principles or practices or financial statement disclosure.
| Item 9A. | Controls and Procedures |
Evaluation of Disclosure Controls and Procedures
Regulations under the Securities Exchange Act of 1934 (the “Exchange Act”) require public companies to maintain “disclosure controls and procedures,” which are defined as controls and other procedures that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Exchange Act is accumulated and communicated to the issuer’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. A material weakness is a control deficiency (within the meaning of the Public Company Accounting Oversight Board (PCAOB) Auditing Standard No. 2) or combination of control deficiencies, that result in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected.
The Company carried out an evaluation, with the participation of the Company’s management, including the Company’s Chief Executive Officer (“CEO”), of the effectiveness of the Company’s disclosure controls and procedures (as defined under Rule 13a-15(e) under the Exchange Act) as of June 30, 2016, the end of the period covered by this report. Based upon that evaluation, the Company’s CEO concluded that the Company’s disclosure controls and procedures are not effective at the reasonable assurance level due to the material weaknesses described below:
| 1. | Up until June 15, 2015, the Company’s board of directors did not have an audit committee, independent director or member with financial expertise which causes ineffective oversight of the Company’s external financial reporting and internal control over financial reporting. |
| 2. | The Company does not have sufficient segregation of duties within its accounting functions, which is a basic internal control. Due to its size and nature, segregation of all conflicting duties may not always be possible and may not be economically feasible. |
| 3. | Manual process of the tracking and process of our inventory. |
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In light of the material weaknesses, the management of the Company performed additional analysis and other post-closing procedures to ensure our consolidated financial statements were prepared in accordance with the accounting principles generally accepted in the United States of America. Accordingly, we believe that our consolidated financial statements included herein fairly present, in all material respects, our consolidated financial condition, consolidated results of operations and cash flows as of and for the reporting periods then ended.
Remediation of Material Weaknesses
We intend to remediate the material weaknesses in our disclosure controls and procedures identified above. We have already adopted an Audit Committee Charter and appointed independent members from our Board to an Audit Committee and our Chairman of the Audit Committee has sufficient financial expertise. In addition, we have hired a part-time CFO with SEC reporting experience.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, the issuer’s principal executive and principal financial officer and effected by the issuer’s board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America and includes those policies and procedures that:
| ● | Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the issuer; | |
| ● | Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the issuer; and | |
| ● | Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the issuer’s assets that could have a material effect on the financial statements. |
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Because of the inherent limitations of internal control, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk.
As of the end of our most recent fiscal year, management assessed the effectiveness of our internal control over financial reporting based on the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework 1992 and SEC guidance on conducting such assessments. Based on that evaluation, management concluded that, as of June 30, 2016, such internal control over financial reporting was not effective. This was due to deficiencies that existed in the design or operation of our internal control over financial reporting that adversely affected our internal controls and that may be considered to be material weaknesses.
The matters involving internal control over financial reporting that our management considered to be material weaknesses under the standards of the Public Company Accounting Oversight Board were: (1) lack of a functioning audit committee due to a lack of a majority of independent members and a lack of a majority of outside directors on our board of directors, resulting in ineffective oversight in the establishment and monitoring of required internal controls and procedures; and (2) inadequate segregation of duties consistent with control objectives of having segregation of the initiation of transactions, the recording of transactions and the custody of assets. The aforementioned material weaknesses were identified by our Chief Executive Officer in connection with the review of our financial statements as of June 30, 2016.
To address the material weaknesses set forth above, management performed additional analyses and other procedures to ensure that the financial statements included herein fairly present, in all material respects, our financial position, results of operations and cash flows for the periods presented.
This annual report does not include an attestation report of the Company’s independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s independent registered public accounting firm pursuant to the rules of the SEC that permit the Company to provide only the management’s report in this annual report.
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Changes in Internal Controls over Financial Reporting
We have hired a part-time Chief Financial Officer and appointed independent members to our Board of Directors to oversee the financial reporting of our operations. Additionally, redundancy has been created across many facets of the business operations. Other than these items, there were no significant changes in the Company’s internal controls or in other factors that could significantly affect these controls subsequent to the evaluation date.
| Item 9B. | Other Information |
None.
| Item 10. | Directors, Executive Officers and Corporate Governance |
The following table sets forth each of our directors name, age, position and office. Each of their current terms as our directors expires at our next annual shareholder meeting.
| Name | Age | Position | ||
| Tom Comery | 62 | Chief Executive Officer, Principal Executive Officer, Interim Chief Financial Officer and Director | ||
| Mark Vuozzo | 52 | Chief Technical Officer | ||
| Gerald M. Czarnecki | 76 | Director | ||
| Judith Muhlberg | Director |
All executive officers are elected by the Board of Directors and hold office until the next annual meeting of shareholders, or until their successors are duly elected and qualified.
The following is information on the business experience of each director and officer.
Tom Comery, Chief Executive Officer and Director
Mr. Comery, age 62, has been a director of Eco Building Products, Inc. since April 6, 2015 and comes to Eco Building Products, Inc. with 30 years of building products manufacturing and distribution experience. He has broad business experience including mid-market CEO; supply chain and specialty product management at the Fortune 500 Group Director level; mid-market sales and marketing as well as accounting management. In 2009/2011 he was SVP of Building Material Distributors, Inc. with full P&L responsibility of a multi-state, multi-warehouse wholesale distribution business focused on commodity and specialty building products, forest products and imported metal fencing and fasteners. In 2012/2013 Mr. Comery led a green-field start-up in the LED lighting space as President and CEO of B-Efficient, Inc. serving the commercial, residential and industrial markets. Most recently he was SVP of Sales for Leedo Manufacturing, the largest supplier of kitchen and bath cabinetry to the new construction multi-family housing industry.
Throughout his career Mr. Comery has successfully led two start-ups and two turnarounds.
The Company and Mr. Comery have not finalized the terms of the employment and have not entered into a formal engagement agreement but expect to work out the terms and finalize an employment agreement in the near future.
No family relationship has ever existed between Mr. Comery and the Company.
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Mark Vuozzo, Chief Technical Officer
Mr. Vuozzo was the founder and CEO of MV Technical Sales, LLC a privately held company that serviced the Semiconductor Automated Test Equipment industry. Mr. Vuozzo grew the company to span across USA, Asia and Europe with sales in excess of 25 million. In 2006, Mr. Vuozzo sold his interest in MV Technical Sales, LLC. In 2007, Mr. Vuozzo joined Steven Conboy to manage SC Bluwood, Inc., and Framers Choice, Inc. Mr. Vuozzo acted in the capacity of General Manager and Director of both organizations. In 2009, Mr. Vuozzo joined the Company, as a General Manager and Corporate Secretary. Mr. Vuozzo continues to act in the capacity of Chief Technical Officer.
Gerald M. Czarnecki, Director
Mr. Czarencki became a Director of the Company on April 6, 2015 and Chairman of our Board of Directors on June 15, 2015. Mr. Czarnecki is an ex officio member of each of the Audit Committee, Compensation Committee and Governance and Nomination Committee. Mr. Czarnecki has been the Chairman and CEO of The Deltennium Group, Inc., a privately held consulting and direct investment firm, since its founding in 1995. From August 2007 until April 2012, Mr. Czarnecki has served as President and CEO of 02Media, Inc., a private organization providing direct response marketing campaign management and infomercial production, educational and branded entertainment TV programming and Internet marketing campaign management. From April 1, 2007 to January 15, 2008, Mr. Czarnecki served as interim President & CEO of Junior Achievement Worldwide, Inc., where he also serves on the board of directors, and as member of the Executive Committee, and Chairman of its Human Resources, Compensation and Pension Committees. Mr. Czarnecki is a member of the Board of Directors of State Farm Insurance Company and is Chairman of the Audit Committee, and a member of the Board of Directors of State Farm Bank and State Farm Fire & Casualty. He is also a member of the advisory board for Private Capital, Inc. and serves as a member of the Board of Trustees of National University and is Chairman of its Investment Committee. In addition he is Chairman of the Board of National Leadership Institute, a nonprofit organization dedication to facilitating quality leadership and governance in nonprofit organizations; Chairman of the National Association of Corporate Directors - Florida Chapter. Mr. Czarnecki holds a B.S. in Economics from Temple University, and M.A. in Economics from Michigan State University, a Doctor of Humane Letters from National University and is a Certified Public Accountant. Mr. Czarnecki is also the author of five books on Leadership and corporate governance. From June 2003 to April 2010, Mr. Czarnecki served on the Board of Directors of Del Global Technology, Inc., where he also served as the Chairman of its Audit Committee. From June 2006 to February 2010, Mr. Czarnecki served on the Board of Directors of Junior Achievement of South Florida, Inc. Mr. Czarnecki brings to the Board significant experience as a management change agent, corporate leadership, knowledge and experience in the information technology industry, and development of corporate strategy. His experience at companies as large as IBM or as small as the Company have enabled him to understand how to drive best practices across either large or small organizations and creation of a dynamic organization – capable of adapting to the new paradigm of constant change in business.
Judith Muhlberg, Directors
Judith Muhlberg joined the Board of Directors for Eco Building Products on April 8, 2015. She serves as Chair of the Compensation Committee. As a consultant for strategy execution firm, Gagen MacDonald since 2004, Judith has supported efforts at Fortune 500 companies — including United Airlines, BASF, Collective Brands, Inc., Estee Lauder, Mars, Novartis Pharmaceuticals Corporation, Dean Foods, Financial Services Roundtable, Air Products and Chemicals, Inc., Deloitte, Medtronic, Dow Corning, Pfizer and Southern California Gas Company. In 2002, Judith joined the Board of Directors of State Farm Mutual Automobile Insurance Company and served on the Legal Issues, Risk Management, and Corporate Governance and Nominating committees. In 2005, she was the senior vice president of communications for Sprint Nextel for six months, overseeing the merger communications of these two companies and leading a team of some 200 communicators. Throughout her career, Judith built a broad and deep background in two major global industries: aerospace and automotive. She was senior vice president of communications and a member of the company’s Executive Council at Boeing. Judith led a 250-strong communications team and, among many successes, directed a strategic global transformation of Boeing’s brand and reputation – from that of a commercial airplane manufacturer to a broad-based aerospace company with 150,000 employees. This transformation was initiated by the merger of McDonnell Douglas and Boeing, in which Judith played a pivotal role in an extensive culture change effort driven by enhanced leadership communications. She is a Member of the Arthur W. Page Society. In May 2012, Judith was named A&S Outstanding Alumna by the University of Wyoming. Education: Michigan State University, Juris Doctor; University of Wyoming, B.S., Communications; University of Stockholm (Sweden), studied International Economics.
Involvement in Certain Legal Proceedings
To the best of our knowledge, none of our directors or executive officers has, during the past ten years:
| ● | been convicted in a criminal proceeding or been subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); |
| ● | had any bankruptcy petition filed by or against the business or property of the person, or of any partnership, corporation or business association of which he was a general partner or executive officer, either at the time of the bankruptcy filing or within two years prior to that time; |
| ● | been subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction or federal or state authority, permanently or temporarily enjoining, barring, suspending or otherwise limiting, his involvement in any type of business, securities, futures, commodities, investment, banking, savings and loan, or insurance activities, or to be associated with persons engaged in any such activity; |
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| ● | been found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated; |
| ● | been the subject of, or a party to, any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated (not including any settlement of a civil proceeding among private litigants), relating to an alleged violation of any federal or state securities or commodities law or regulation, any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order, or any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or |
| ● | been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. |
Except as set forth in our discussion below in “Certain Relationships and Related Transactions,” none of our directors or executive officers has been involved in any transactions with us or any of our directors, executive officers, affiliates or associates which are required to be disclosed pursuant to the rules and regulations of the Commission.
Term of Office
Our directors are appointed for a one-year term to hold office until the next annual general meeting of our shareholders or until removed from office in accordance with our bylaws. Our officers are appointed by our board of directors and hold office until removed by the board.
Code of Ethics
The Company has always encouraged its employees, including officers and directors to conduct business in an honest and ethical manner. Additionally, it has always been the Company’s policy to comply with all applicable laws and provide accurate and timely disclosure. Despite the foregoing, we currently do not have a formal written code of ethics for either our directors or employees. We do not have a formal written code of ethics because we currently only have only a few employees and executives. Our officers and directors are held to the highest degree of ethical standards. Once we expand the executive and management further, we will adopt a written code of ethics for all of our directors, executive officers and employees.
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Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires the Company’s directors and officers, and persons who own more than ten-percent (10%) of the company’s common stock, to file with the Securities and Exchange Commission reports of ownership on Form 3 and reports of change in ownership on Forms 4 and 5. Such officers, directors and ten-percent stockholders are also required to furnish the company with copies of all Section 16(a) reports they file. Based solely on its review of the copies of such forms received by the company and on written representations from certain reporting persons, the company believes that none of the Section 16(a) reports applicable to its officers, directors and ten-percent stockholders with respect to the fiscal year ended June 30, 2016 were filed.
Board of Director Meetings and Committees
Our Current Board of Directors consists of Judith Muhlberg, Gerald M. Czarnecki, and Tom Comery (the “Board”). It has been determined by the Company that Ms. Muhlberg, and Mr. Czarnecki, are independent members of the Board pursuant to the required standards set forth in Rule 10A-3(b) of the Securities Exchange Act of 1934, as amended. The current Board includes Tom Comery, Gerald M. Czarnecki and Judith Muhlberg.
Since the appointment of our independent Board on April 6, 2015, the Board has convened regularly scheduled meetings and has overseen the operations of the business and has regularly asked for updates on sales, marketing and other business operations.
On July 2, 2015, our Board formed three standing committees: (i) audit, (ii) nominating and corporate governance; and (iii) compensation. Actions taken by our committees are reported to the full Board. The Board has determined that all members of each of the three committees are independent under the current listing standards of NASDAQ. Each of our committees has a charter and each charter is posted on our website and attached hereto as an exhibit.
| Audit Committee | Compensation Committee | Corporate
Governance and Nominating Committee | ||
| Judith Muhlberg | Judith Muhlberg* | Gerald M. Czarnecki* | ||
| Gerald M. Czarnecki* | Gerald M. Czarnecki | Judith Muhlberg |
* Indicates committee chair
Audit Committee
Our audit committee, which currently consists of two directors, provides assistance to our Board in fulfilling its legal and fiduciary obligations with respect to matters involving the accounting, financial reporting, internal control and compliance functions of the company. Our audit committee employs an independent registered public accounting firm to audit the financial statements of the company and perform other assigned duties. Further, our audit committee provides general oversight with respect to the accounting principles employed in financial reporting and the adequacy of our internal controls. In discharging its responsibilities, our audit committee may rely on the reports, findings and representations of the company’s auditors, legal counsel, and responsible officers. Our Board has determined that all members of the audit committee are financially literate within the meaning of SEC rules and under the current listing standards of NASDAQ.
Compensation Committee
Our compensation committee, which currently consists of two directors, establishes executive compensation policies consistent with the company’s objectives and stockholder interests. Our compensation committee also reviews the performance of our executive officers and establishes, adjusts and awards compensation, including incentive-based compensation, as more fully discussed below. In addition, our compensation committee generally is responsible for:
| ● | establishing and periodically reviewing our compensation philosophy and the adequacy of compensation plans and programs for our directors, executive officers and other employees; |
| ● | overseeing our compensation plans, including the establishment of performance goals under the company’s incentive compensation arrangements and the review of performance against those goals in determining incentive award payouts; |
| ● | overseeing our executive employment contracts, special retirement benefits, severance, change in control arrangements and/or similar plans; |
| ● | acting as administrator of any company stock option plans; and |
| ● | overseeing the outside consultant, if any, engaged by the compensation committee. |
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Our compensation committee periodically reviews the compensation paid to our non-employee Directors and the principles upon which their compensation is determined. The compensation committee also periodically reports to the Board on how our non-employee Director compensation practices compare with those of other similarly situated public corporations and, if the compensation committee deems it appropriate, recommends changes to our director compensation practices to our Board for approval.
Corporate Governance and Nominating Committee
Our corporate governance and nominating committee, which currently consists of two directors, monitors our corporate governance system, assesses Board membership needs, makes recommendations to the Board regarding potential director candidates for election at the annual meetings of stockholders or in the event of any director vacancy, and performs any other functions or duties deemed appropriate by the Board.
Director candidates must have experience in positions with a high degree of responsibility and leadership experience in the companies or institutions with which they are or have been affiliated. Directors are selected based upon contributions that they can make to the company. The company does not maintain a separate policy regarding the diversity of its Board members. However, consistent with its charter, the corporate governance and nominating committee, and ultimately the Board, seeks directors (including nominees for director) with diverse personal and professional backgrounds, experience and perspectives that, when combined, provide a diverse portfolio of experience and knowledge that will well serve the company’s governance and strategic needs.
Family Relationships
No family relationships exist among any directors, executive officers, or persons nominated or chosen to become directors or executive officers.
| Item 11. | Executive Compensation |
We provide named executive officers and our other employees with a salary to compensate them for services rendered during the fiscal year. Salary amounts for the named executive officers are determined for each executive based on his or her position and responsibility, and on past individual performance. Salary levels are typically considered annually as part of our performance review process. Merit based increases to salaries of the named executive officers are based on our board of directors’ assessment of the individual’s performance.
The following table shows for the year ended June 30, 2016 and fiscal year ended June 30, 2015, the compensation awarded (earned) or paid by the Company to its named executive officers as that term is defined in Item 402(a)(2) of Regulation S-K.
| Name and Principal Position | Fiscal Year |
Salary ($) | Bonus | Option Awards |
All Other Compensation |
Total ($) | ||||||||||||||||
| Tom Comery, | 2016 | $ | 250,000 | $ | $ | 0 | $ | $ | 250,000 | |||||||||||||
| Chief Executive Officer, Director (1) | 2015 | $ | 9,615 | $ | $ | 0 | $ | $ | 9,615 | |||||||||||||
| Steve Conboy, Former President, (2) | 2015 | $ | 288,461 | $ | $ | 10,994 | $ | $ | 288,461 | |||||||||||||
| CEO, CFO Director | ||||||||||||||||||||||
| Principal Executive & Financial Officer | ||||||||||||||||||||||
| Mark Vuozzo (3) | 2016 | $ | 250,000 | (4) | $ | $ | 0 | $ | $ | 250,000 | ||||||||||||
| Chief Technical Officer | 2015 | $ | 250,000 | (5) | $ | $ | 0 | $ | $ | 250,000 | ||||||||||||
| (1) | Tom Comery was appointed as the Company’s Chief Executive Officer on June 15, 2015. |
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| (2) | Steve Conboy’s compensation for year ended June 30, 2015 amounted to $288,461. Total accrued compensation due Steve Conboy at June 30, 2015 totaled $0. Compensation charged to operations during the year ended June 30, 2015 on the option granted totaled $10,994. | |
| (3) | In late 2009, Mr. Vuozzo joined ECO Building Products, Inc., as a General Manager and Corporate Secretary. Effective April 1, 2011, the Company entered into an employment agreement with Mark Vuozzo, its Chief Technical Officer for a term of two years. | |
| (4) | Mark Vuozzo’s compensation for year ended June 30, 2016 amounted to $250,000, of which $55,919 was accrued and not paid. Total accrued compensation due Mark Vuozzo at June 30, 2016 totaled $689,930. | |
| (5) | Mark Vuozzo’s compensation for year ended June 30, 2015 amounted to $250,000, of which $78,089 was accrued and not paid. Total accrued compensation due Mark Vuozzo at June 30, 2015 totaled $634,011. Compensation charged to operations during the year ended June 30, 2015 on the option granted totaled $0 |
Employment Agreements
Tom Comery
Mr. Comery was appointed as our Chief Executive Officer as of June 15, 2015. We do not have a formal Employment Agreement finalized with Mr. Comery at this point but we are working towards finalizing it. The Compensation Committee has, however, met and approved the major points of his compensation. Mr. Comery is earning an annual salary of $250,000, provided that the Compensation Committee has agreed to determine whether this should be increased to $275,000 beginning when the quarterly net income is positive. The Company will also pay compensating him $1,700 per month for medical benefits and a $500 per month car allowance. In addition, the Compensation Committee agreed to a $15,000 one-time reimbursement for relocation expenses. Lastly, Mr. Comery will be eligible to participate in the Employee Incentive Compensation Plan upon the Board’s discretion.
Steve Conboy
On June 15, 2015, Mr. Steve Conboy submitted a letter to the Board resigning from the positions of Chief Executive Officer and President and Chairman of the Board, effective immediately on such date.
| - | In connection with Mr. Conboy’s resignation, the Company and Mr. Conboy entered into an Executive Severance Agreement and General Release of All Claims Agreement (the “Separation Agreement”) on June 15, 2015. The Separation Agreement provides, as consideration for non-solicitation obligations, a general release of any claims of accrued but unpaid salary and the non-revocation of a full release of all claims related to Mr. Conboy’s employment with the Company and cancellation of all of his Series A shares, as follows: (i) a cash payment of $37,500 which will be made in three equal installments of $12,500 on the 30 th , 60 th and 90 th day following the date of the Agreement; and (ii) an option to purchase 5,772,857 shares which equals one percent (1%) of the total number of shares outstanding on the date of the Separation Agreement with an exercise price of $0.0038 (which is the closing price on the date of the grant). This option grants vests as follows: (i) 50% vested immediately; and (ii) 50% vests on December 18, 2015. A copy of the Separation Agreement is filed as Exhibit 10.7. |
Mr. Conboy’s employment agreement has therefore been terminated and the Company is no longer bound by the terms of that agreement.
Mark Vuozzo – Chief Technical Officer
Effective November 1, 2013, the Company entered into an employment agreement with its Chief Technical Officer for a term of five (5) years and shall be renewed automatically for succeeding terms of one (1) year each (“Renewal Terms”) unless either party gives notice to the other at least 30 days prior to the expiration of any term of said party’s intention not to renew this Agreement. Key provisions of the agreement include
| (a) | Annual salary of $250,000 | |
| (b) | Cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2014 exceed $25,000,000, subject to certain limitations. If the company achieves 80% of the bonus target then the employee is entitled to 50% of the defined bonus for the defined period. |
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| (c) | Additional cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2015 exceed $50,000,000, subject to certain limitations. In addition when the aforementioned gross sales targets are obtained the employee will be eligible for a 20% increase in salary year over year. | |
| (d) | Option grants to purchase 800,000 shares of the company’s common stock at an exercise price of $0.10 per share, expiring November 1, 2018 (five-year life). Such options will vest over a two-year period. These options were valued at $4,656, as determined using the Black-Scholes option-pricing model using a risk free rate of 1.37%, volatility of 148.81% and a trading price of the underlying shares of $0.10. |
We have no other executive employment agreements currently in place.
Eco Building Products, Inc. has not, nor proposes to do so in the future, make loans to any of its officers, directors, key personnel, 10% stockholders, relatives thereof, or controllable entities.
We have no pension plans or plans or agreements which provide compensation on the event of termination of employment or change in control of us and have therefore eliminated a column specified by Item 402 (c)(2) titled “Change in Pension Value and Nonqualified Deferred Compensation Earnings (h)” in the above Summary Compensation Table. Except pursuant to their employment agreements, severance pay is due Mark Vuozzo upon separating from service, with or without cause, equaling the then current monthly salary multiplied by the number of full years that they have been employed with the Company prior to separation.
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Outstanding Equity Awards at Fiscal Year-End
Mark Vuozzo:
| - | Option grants to purchase 800,000 shares of the company’s common stock at an exercise price of $0.10 per share, expiring April 1, 2018 (five-year life). Such options will vest over a two-year period. These options were valued at $4,656, as determined using the Black-Scholes option-pricing model using a risk free rate of 1.37%, volatility of 148.81% and a trading price of the underlying shares of $0.001. |
Director Compensation
Prior to the appointment of our independent directors on April 6, 2015, we did not have a formal plan for director compensation and our sole director did not receive any type of compensation for serving as a director for the years ended June 30, 2016 or June 30, 2015.
However, in connection with the appointments to the new independent members of the Board, the Company entered into a Director Agreements with each individual whereby the Company agreed to compensate each individual as follows: (1) a cash retainer of fifteen thousand dollars ($15,000) per calendar year during the period of service, paid in quarterly installments and (2) an additional fifteen thousand dollars ($15,000) per calendar year for each Committee Chairman position that the Director holds; and (3) an equity incentive award as may be determined at the discretion of the Board.
To date, however, the Directors have not received any payment of their Director Compensation that has been earned.
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
The following table sets forth certain information regarding our shares of common stock beneficially owned as of October 12, 2016, for (i) each stockholder known to be the beneficial owner of 5% or more of our outstanding shares of common stock, (ii) each named executive officer and director, and (iii) all executive officers and directors as a group. A person is considered to beneficially own any shares: (i) over which such person, directly or indirectly, exercises sole or shared voting or investment power, or (ii) of which such person has the right to acquire beneficial ownership at any time within 60 days through an exercise of stock options or warrants. Unless otherwise indicated, voting and investment power relating to the shares shown in the table for our directors and executive officers is exercised solely by the beneficial owner or shared by the owner and the owner’s spouse or children.
For purposes of this table, a person or group of persons is deemed to have “beneficial ownership” of any shares of common stock that such person has the right to acquire within 60 days of October 13, 2016. For purposes of computing the percentage of outstanding shares of our common stock held by each person or group of persons named above, any shares that such person or persons has the right to acquire within 60 days of October 12, 2016 is deemed to be outstanding, but is not deemed to be outstanding for the purpose of computing the percentage ownership of any other person. The inclusion herein of any shares listed as beneficially owned does not constitute an admission of beneficial ownership. Unless otherwise specified, the address of each of the persons set forth below is care of the company at the address of: 11568 Sorrento Valley Road #13, San Diego, CA 92121.
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| Name of Beneficial Owner and Address | Amount
and Nature of Beneficial Ownership of Common Stock |
Percent
of Common Stock (1) |
Amount
and Nature of Beneficial Ownership of Preferred Stock |
Percent
of Preferred Stock (2) |
||||||||||||
| Directors and | ||||||||||||||||
| Executive Officers | ||||||||||||||||
| Tom Comery | 0 | * | % | 0 | * | % | ||||||||||
| Gerald M. Czarnecki | 0 | * | % | 0 | * | % | ||||||||||
| Judith Muhlberg | 0 | * | % | 0 | * | % | ||||||||||
| Mark Vuozzo | 1,337,500 | * | % | 0 | 0 | % | ||||||||||
| All directors and officers as a group (4 people) | 0 | * | % | |||||||||||||
| * Less than 1%. | ||||||||||||||||
All ownership is beneficial and of record except as specifically indicated otherwise. Beneficial owners listed above have sole voting and investment power with respect to the shares shown unless otherwise indicated.
| Item 13. | Certain Relationships and Related Transactions, and Director Independence |
Transactions with Related Persons
Loans Payable – Related Party
At June 30, 2013, the Company had a non-interest bearing note payable due to its Chief Executive Officer who is also a Director and significant shareholder with a balance of $509,151. During 2014, the Company paid $128,824, leaving a balance of $380,327 at June 30, 2014. Effective June 15, 2015, this debt was forgiven in connection with the termination of the Chief Executive Officer’s Employment Agreement described in note 6.
At June 30, 2013, the Company had interest bearing notes payable due to its Chief Technical Officer with a balance of $95,000. During the year ended June 30, 2014, the Company paid $10,000, leaving a balance of $85,000 at June 30, 2014. During the year ended June 30 2015, the Company paid $40,000, leaving a balance of $45,000 at June 30, 2015. During the year ended June 30 2016, the Company paid $45,000, leaving a balance of $0 at June 30, 2016.
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Employment Agreement – Chief Technical Officer
Effective November 1, 2013, the Company entered into an employment agreement with its Chief Technical Officer or “CTO” for a term of five (5) years and shall be renewed automatically for succeeding terms of one (1) year each (“Renewal Terms”) unless either party gives notice to the other at least 30 days prior to the expiration of any term of said party’s intention not to renew this Agreement. Key provisions of the agreement include:
| (a) | Annual salary of $250,000 | |
| (b) | Cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2014 exceed $25,000,000, subject to certain limitations. If the company achieves 80% of the bonus target then the employee is entitled to 50% of the defined bonus for the defined period. | |
| (c) | Additional cash bonus of $250,000 in the event that gross sales for the fiscal year ending June 30, 2015 exceed $50,000,000, subject to certain limitations. In addition when the aforementioned gross sales targets are obtained the employee will be eligible for a 20% increase in salary year over year. | |
| (d) | Option grants to purchase 40,000 (800,000 pre-split) shares of the company’s common stock at an exercise price of $2.00 per share ($0.10 pre-split), expiring April 1, 2016 (five-year life). Such options will vest over a two-year period. These options were valued at $4,656, as determined using the Black-Scholes option-pricing model using a risk free rate of 1.37%, volatility of 149% and a trading price of the underlying shares of $0.16 ($0.008 pre-split). | |
| (e) | Severance pay is due the CTO upon separating from service, with or without cause, equaling his then current monthly salary multiplied by the number of full years that the President has been employed with the Company prior to separation. |
Accrued compensation due the Chief Technical Officer at June 30, 2016 totaled $689,930. Compensation charged to operations during the year ended June 30, 2016 on option grants totaled $1472.
Accrued compensation due the Chief Technical Officer at June 30, 2015 totaled $634,011. Compensation charged to operations during the year ended June 30, 2015 on the option grants totaled $554. The CTO also had 20,000 (400,000 pre-split) options granted from a previous employment agreement.
Director Independence
NASDAQ Listing Rule 5605(a)(2) provides that an “independent director” is a person other than an officer or employee of the Company or any other individual having a relationship which, in the opinion of the Company’s board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. The NASDAQ listing rules provide that a director cannot be considered independent if:
| ● | the director is, or at any time during the past three years was, an employee of the company; |
| ● | the director or a family member of the director accepted any compensation from the company in excess of $120,000 during any period of 12 consecutive months within the three years preceding the independence determination (subject to certain exclusions, including, among other things, compensation for board or board committee service); |
| ● | a family member of the director is, or at any time during the past three years was, an executive officer of the company; |
| ● | the director or a family member of the director is a partner in, controlling stockholder of, or an executive officer of an entity to which the company made, or from which the company received, payments in the current or any of the past three fiscal years that exceed 5% of the recipient’s consolidated gross revenue for that year or $200,000, whichever is greater (subject to certain exclusions); |
| ● | the director or a family member of the director is employed as an executive officer of an entity where, at any time during the past three years, any of the executive officers of the company served on the compensation committee of such other entity; or the director or a family member of the director is a current partner of the company’s outside auditor, or at any time during the past three years was a partner or employee of the company’s outside auditor, and who worked on the company’s audit. |
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As of October 12, 2016, our Board is composed of three members, of which two directors are independent directors. The two independent directors are Gerald M. Czarnecki and Judith Muhlberg. In addition, as indicated above, each of our audit committee, nominating and corporate governance committee and compensation committee, described above in “Committees of the Board of Directors,” is composed entirely of independent directors, including the chairperson of the audit committee. We believe that the number of independent directors that make up our Board benefits the company, as well as our stockholders.
| Item 14. | Principal Accounting Fees and Services |
Principal Accountant Fees and Services
| (1) | Audit Fees |
The aggregate fees billed for the fiscal year ended June 30, 2016 for professional services rendered by Sadler Gibb & Associates., the principal accountant, for the audit of the registrant’s annual financial statements and review of financial statements included in the registrant’s Form 10-K and 10-Q or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for the fiscal year ending June 30, 2016 were $51,800.
The aggregate fees billed for the fiscal year ended June 30, 2015 for professional services rendered by Sadler Gibb & Associates., the principal accountant, for the audit of the registrant’s annual financial statements and review of financial statements included in the registrant’s Form 10-K and 10-Q or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for the fiscal year ending June 30, 2015 were $76,948.
| (2) | Audit-Related Fees |
No aggregate fees were billed in each of the last two fiscal years for assurance and related services by the principal accountants that are reasonably related to the performance of the audit or review of the registrant’s financial statements and are not reported under item (1) for the fiscal years ending June 30, 2016 and 2015.
| (3) | Tax Fees |
No aggregate fees were billed for professional services rendered by the principal accountants for tax compliance, tax advice, and tax planning for the fiscal years ending June 30, 2016 and 2015.
| (4) | All Other Fees |
No aggregate fees were billed for professional services provided by the principal accountants, other than the services reported in items (1) through (3) for the fiscal years ending June 30, 2016 and 2015.
| (5) | Audit Committee |
The registrant’s Audit Committee, or officers performing such functions of the Audit Committee, have approved the principal accountant’s performance of services for the audit of the registrant’s annual financial statements and review of financial statements included in the registrant’s Form 10-K or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for the fiscal year ending June 30, 2016. Audit-related fees, tax fees, and all other fees, if any, were approved by the Audit Committee or officers performing such functions of the Audit Committee.
| (6) | Work Performance by others |
The percentage of hours expended on the principal accountant’s engagement to audit the registrant’s financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant’s full-time, permanent employees was zero percent.
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| Item 15. | Exhibits, Financial Statement Schedules |
Exhibits
| 3.1 | Amended and Restated By-Laws of Eco Building Products, Inc. (referred to and incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the Commission on July 20, 2015). |
| 3.2 | Certificate of Designation, Rights and Preferences for the Series D 12% Convertible Preferred Stock filed with the State of Nevada on March 31, 2015 (filed as exhibit 3.2 with the registrant’s Current Report on Form 10-K with the Securities and Exchange Commission on November 16, 2015) |
| 3.3 | Amendment Number 1 to the Certificate of Designations, Rights and Preferences of the Series D Convertible Preferred Stock (referred to and incorporated by reference to Exhibit 3.2 of the Current Report on Form 8-K filed with the Commission on July 20, 2015). |
| 4.1 | Convertible Promissory Note, dated December 22, 2009; filed as exhibit 10.5 with the registrant’s Current Report on Form 10-Q (filed with the Securities and Exchange Commission on February 22, 2010) |
| 4.2 | Convertible Promissory Note, dated February 11, 2010 (filed as exhibit 10.6 with the registrant’s Current Report on Form 10-Q; filed with the Securities and Exchange Commission on February 22, 2010) |
| 10.1 | Investment Agreement – between Ecoblu Products, Inc., Manhattan Resources Limited and Dato’ Low Tuck Kwong , dated February 14, 2009 (filed as exhibit 10.1 with the registrant’s Current Report on Form 8-K with the Securities and Exchange Commission on February 16, 2011). |
| 10.2 | Revolving Credit and Warrant Agreement – between Ecoblu Products, Inc. and Manhattan Resources Limited, dated February 14, 2009 (filed as exhibit 10.2 with the registrant’s Current Report on Form 8-K with the Securities and Exchange Commission on February 16, 2011). |
| 10.3 | Warrant Termination Agreement – between Ecoblu Products, Inc. and SLM Holding PTE, Ltd., dated January 12, 2011 (filed as exhibit 10.3 with the registrant’s Current Report on Form 8-K with the Securities and Exchange Commission on February 16, 2011). |
| 10.4 | Hartindo AF21 Product, Purchase, Sales, Distribution & Service Agreement, between Ecoblu Products, Inc. and Newstar Holdings Pte Ltd, dated January 18, 2011 (filed as exhibit 10.8 with the registrant’s Current Report on Form 10-Q with the Securities and Exchange Commission on February 22, 2011). |
| 10.5 | Employment Agreement – between Eco Building Products, Inc. and Steve Conboy, Effective November 1, 2013 (filed as exhibit 10.5 with the registrant’s Current Report on Form 10-K with the Securities and Exchange Commission on October 14, 2014). |
| 10.6 | Employment Agreement – between Eco Building Products, Inc. and Mark Vuozzo, Effective November 1, 2013 (filed as exhibit 10.6 with the registrant’s Current Report on Form 10-K with the Securities and Exchange Commission on October 14, 2014). |
| 10.7 | Executive Severance Agreement and General Release of All Claims Agreement Dated June 15, 2015 |
| 31.1 | Certification of Principal Executive Officer (Rule 13a-14(a)/15(d)-14(a)) |
| 31.2 | Certification of Principal Financial Officer (Rule 13a-14(a)/15(d)-14(a)) |
| 101.INS | XBRL Instance Document |
| 101.SCH | XBRL Taxonomy Schema |
| 101.CAL | XBRL Taxonomy Calculation Linkbase |
| 101.DEF | XBRL Taxonomy Definition Linkbase |
| 101.LAB | XBRL Taxonomy Label Linkbase |
| 101.PRE | XBRL Taxonomy Presentation Linkbase |
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ECO Building Products, Inc. | ||
| Registrant | ||
| Date: October 17, 2016 | By: | /s/ Tom Comery |
| Tom Comery, President and Chief Executive Officer | ||
| (Principal Executive Officer) | ||
| By: | /s/ Tom Comery, | |
| Tom Comery, Chief Financial Officer | ||
| (Principal Accounting Officer) | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Gerald M. Czarnecki | Chairman of the Board of Directors | October 17, 2016 | ||
| Gerald M. Czarnecki | ||||
| /s/ Tom Comery | Chief Executive Officer and Director | October 17, 2016 | ||
| Tom Comery | (principal executive officer) | |||
| /s/ Judith Muhlberg | Director | October 17, 2016 | ||
| Judith Muhlberg |
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