ITEM 1. BUSINESS
The Company was incorporated in Delaware on April 23, 1996. The Company’s operations are derived from licensing agreements and royalties received from the right to use the George Foreman name. The consolidated financial statements include the accounts of George Foreman Enterprises, Inc, its wholly-owned subsidiary, George Foreman Management, Inc., and its wholly-owned subsidiary, George Foreman Ventures, LLC ("Ventures") as of May 28, 2010. G-Nutritional, LLC ("G-Nutritional") is a wholly-owned subsidiary of Ventures through which a majority ownership position in Vita Ventures, LLC ("Vita Ventures") was acquired. Ventures also acquired a majority ownership position in InStride Ventures, LLC ("InStride Ventures"). All significant intercompany balances have been eliminated.
On August 15, 2005 the Company and Ventures, entered into a series of agreements with George Foreman and George Foreman Productions, Inc. ("GFPI," and, collectively with George Foreman, "Foreman") pursuant to which, among other things, Mr. Foreman assigned certain trademarks and rights to the name, image, signature, voice, likenesses, caricatures, sobriquets, and all other identifying features and indicia of Mr. Foreman to Ventures, and GFPI agreed to furnish the personal services of Mr. Foreman to Ventures. In exchange, Mr. Foreman and GFPI were issued membership interests in Ventures. These membership interests were, at GFPI and Foreman's option, exchanged into approximately thirty-five percent (35%), or 1,799,753 shares, of the fully-diluted shares of common stock of the Company on May 28, 2010. In addition, a trust of which George Foreman, Jr. and George Foreman III are the trustees was issued two shares of the Company's Series A Preferred Stock, which shares entitle the holders thereof, voting separately as a class, to elect two (2) members of the Company's Board of Directors (the "Board"). The trust, as holder of such Series A Preferred Stock, elected George Foreman and George Foreman, Jr. to serve as its designated directors on the Board. On May 28, 2010, George Foreman and George Foreman Jr. resigned as directors and waived all rights to the preferred stock which was then cancelled by the Company.
On May 28, 2010, the Company and Ventures entered into an agreement with George Foreman (“Foreman”) and GFPI, which restructured the contractual rights and obligations of the parties. In addition, Foreman and GFPI exchanged all of their membership interests in Ventures for the Company’s common stock under the Investor Rights Agreement entered into as of August 15, 2005. The parties agreed to terminate the Services and Assignment Agreements and all of the rights and obligations of the parties thereunder. Ventures agreed to sell, grant, assign and otherwise set over to Foreman and GFPI, solely and exclusively and forever, irrevocably and unconditionally, all of their right, title and interest, of every nature and description, whether or not such rights are now known, recognize or contemplated, including the right to enforce the same for all past, present and future infringements, in and to: the Foreman Indicia and the Indicia Rights, marks any and all registrations of, and applications to register, the Marks filed in the United States Patent and Trademark Office, in any states within the United States and anywhere else in the world; and all materials created or produced using the Marks, the Foreman Indicia and/or Indicia Rights including, without limitation, all copyrights therein.
The Company, Ventures, and each of the respective Affiliates agreed to cease and desist from any and all uses of, and shall not use, the Foreman Indicia, the Indicia Rights and/or the Marks, subject only to the licenses previously provided to Ventures for the use of the Foreman Indicia, the Indicia Rights, the Materials and/or the Marks solely in connection with and for the purpose of complying with and/or exercising its contractual rights, representations, commitments and obligations under the Ventures’ License Agreements.
Foreman and GFPI Parties agreed to waive any right to receive shares of preferred stock pursuant to the Registration Rights Agreement and any amounts due to them. Foreman and George Foreman Jr. resigned from the Company’s board of directors immediately upon the execution of this agreement. George Foreman Jr. and George Foreman III, former employees of the Company, agreed to waive any right to receive any amounts due to them under their employment contracts. As a result of this waiver by George Foreman Jr. and George Foreman III, George Foreman Management Inc. recognized forgiveness of indebtedness of $68,621. When these rights were waived, the Company reclassified the elimination of the $68,621 payroll accrual to additional paid-in capital.
Ventures entered into another Agreement with Foreman and United States Pharmaceutical Group, LLC (d/b/a NationsHealth) (“NationsHealth”) on May 28, 2010 pursuant to which Foreman was appointed as NationsHealth’s exclusive spokesman for core diabetic supplies and Foreman granted NationsHealth, through the Agreement with Ventures, an exclusive worldwide license to use the Foreman name, likeness, image and signature in connection with advertising to promote the core diabetic supplies. As part of the Agreement, both Ventures and Foreman will share qualified lead income received from NationsHealth in addition to 10% of the net profits derived from the value of diabetic supplies. Ventures has received $50,000 of revenue to-date from NationsHealth.
The Company’s current revenues are derived from the sale of diabetic shoes in InStride Ventures as well as shares of stock and quarterly royalty payments received by Ventures from UFood. There is also the potential of additional revenue to be received as a result of our agreement with NationsHealth. But to date, Ventures has only received the initial lead income from NationsHealth in accordance with the terms of Ventures’ agreement with NationsHealth. At December 31, 2010, the Company had $170,996 in cash and cash equivalents compared to $99,059 at December 31, 2009. There is an uncertainty about the Company's ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
On March 7, 2008, the Company sold, in a private placement mostly to third-party investors, its 8% Convertible Promissory Notes (the “Notes”) in the aggregate principal amount of $800,000. The Notes are convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The proceeds from the Securities Purchase Agreement were used for working capital. The buyers of the Notes included two entities that are controlled by Seymour Holtzman. Mr. Holtzman was a director, chief executive officer and co-chairman of the board of directors of the Company until November 8, 2010. The buyers also include Jeremy Anderson, the chief financial officer of the Company.
The Company also sold, in a private placement, its 8% Convertible Notes on March 31, 2008 in the aggregate principal amount of $200,000. The Notes are also convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The proceeds from these transactions have been used to fund working capital. The amounts raised in these two transactions were not sufficient to ensure the Company's ability to continue as a going concern.
The Company can give no assurance that the Company's existing cash and cash equivalents are sufficient to satisfy its current obligations. The Company expects that its primary use of cash over the short-term will be for the payment of expenses to develop sales of the therapeutic footwear of InStride Ventures LLC, possible test marketing of the LifeShake, costs associated with the operation as a public company (legal, accounting, consulting, insurance, etc.) and the repayment of its interest and debt under the Notes. The Company is in default under the Notes due to its failure to pay principal and interest in the aggregate amount of $1,200,708 through July 31, 2011.
The Company's success will depend primarily upon its ability to exploit and protect the intellectual property rights that Mr. Foreman has assigned to Ventures. Mr. Foreman has entered into numerous licensing, endorsement and other agreements, and there can be no assurances that a third party will not assert a claim to some or all of the intellectual property rights that the Company believes have been assigned to Ventures. In addition, the United States Patent and Trademark Office (the "PTO") may cite preexisting trademark applications and registrations by third parties against, and prior trademark owners may oppose, future trademark applications by the Company or Ventures incorporating the George Foreman name. Further, even if the Company or Ventures were able to obtain acceptance of its trademark applications by the PTO, a significant number of similar marks registered by, and licensed to, third parties could diminish the value and protectability of the intellectual property held by the Company or Ventures. The value of the George Foreman name may be diminishing as Mr. Foreman gets older and the memory of his career as a boxer fades.
On September 7, 2006, G-Nutritional, an indirect majority-owned subsidiary of the Company, entered into an agreement with Vitaquest International, LLC ("Vitaquest") to operate a newly formed limited liability company for the purpose of marketing and selling certain products principally related to wellness, vitamins and nutritional supplements (the "Products") using the name and likeness of George Foreman. G-Nutritional and Vitaquest entered into an Operating Agreement (the "Operating Agreement") for the newly formed limited liability company, Vita Ventures, under which G-Nutritional and Vitaquest are the sole members. Under the terms of the Operating Agreement, G-Nutritional has sole approval over matters relating to the selection of products and the use of the Foreman trade name. G-Nutritional is therefore considered to hold a controlling interest over Vita Ventures. G-Nutritional owns 50.1% of the membership interests of Vita Ventures and Vitaquest owns 49.9% of the membership interests of Vita Ventures. Additionally, as part of this transaction, G-Nutritional entered into a Trademark License and Service Agreement with Vita Ventures on September 7, 2006 under which Vita Ventures was granted a worldwide non-exclusive license to use the name and likeness of George Foreman in connection with the sale of the Products. Vita Ventures discontinued the sale of its products during the last quarter of 2008 and is currently contemplating marketing the Products again on a test basis through our infomercial.
On April 20, 2007, Ventures entered into an agreement with InStride LLC ("InStride"), Olen Rice and Paul Koester to operate a newly formed limited liability company named InStride Ventures for the purpose of manufacturing, marketing and selling therapeutic footwear using the name and likeness of George Foreman. Ventures owns 50.1% of the membership interest of InStride Ventures, In Stride owns 47.9% of the membership interest of InStride Ventures and Messrs. Rice and Koester each own 1% of the membership interest of InStride Ventures. Additionally, in connection with this transaction, Ventures entered into a License Agreement with InStride Ventures granting InStride Ventures a license to use the name and likeness of George Foreman in connection with the business activities of InStride Ventures. Also, in accordance with the terms of an Exclusive Trademark License Agreement, InStride granted InStride Ventures a license to use certain trademarks owned by InStride in connection with the business activities of InStride Ventures. We also acquire our inventory from our business partner and then resell it. During the twelve months ended December 31, 2010, InStride Ventures recognized $84,143, of sales as a result of its agreement to supply therapeutic footwear using the name and likeness of George Foreman. About two-thirds of our sales recognized by InStride Ventures in 2010 were from one customer. This concentration of sales to one customer is consistent with prior years.
On June 12, 2007, Ventures granted KnowFat Franchise Company, Inc. ("KnowFat") a non-exclusive limited license to use the name and likeness of George Foreman in connection with the promotion of restaurants operated by KnowFat and its franchisees. As consideration for use of the license, Ventures was granted 900,000 shares of common stock of KnowFat, half of which vested as of the closing date and half of which vests over the four year term of the license agreement. In addition, Ventures has the potential to earn additional shares based on the number of franchises sold, as well as earning royalties based on KnowFat sales. On December 18, 2007, KnowFat merged with and into a publicly traded company and now operates under the name UFood Restaurant Group, Inc ("UFood"). The number of KnowFat shares owned by Ventures was converted to 1,371,157 shares of UFood as part of the transaction. Ventures recognized licensing fees and royalties of $378,398 for the twelve months ended December 31, 2010. As of August 23, 2011, Ventures had disposed of 745,933 UFood shares and had 625,224 UFood shares remaining. The value of the UFood shares owned by Ventures based on the August 23, 2011 market price was $100,036.
Ventures entered into a License Agreement, dated as of June 13, 2007, with Northern Foods plc ("Northern Foods"). Pursuant to this License Agreement, Ventures granted to Northern Foods, its subsidiaries and affiliated entities under its own ownership or control the nonexclusive right to manufacture, and the exclusive right to distribute and sell, frozen meats, poultry and fish that utilize, use or otherwise feature the name, image and likeness of George Foreman on packaging or other sales materials, to food stores and food wholesalers operating in the United Kingdom and the Republic of Ireland. Ventures’ License Agreement with Northern Foods expired in September 2009 and it was not renewed.
The Company's employees are retained by the Company's wholly-owned subsidiary, George Foreman Management, Inc. ("Foreman Management"). As of December 31, 2010, Foreman Management had two part-time employees. These employees also perform services for other entities.
The Company's principal executive offices are located in Wilkes-Barre, Pennsylvania in space leased by Jewelcor Management, Inc. ("JMI") from Seymour Holtzman and his wife and made available to the Company (without separate charge). JMI, a company controlled by Mr. Holtzman, the Company's former Co-Chairman of the Board and former Chief Executive Officer of the Company, provides the Company with certain consulting, administrative and other services in exchange for a monthly fee of $4,167. Since July 2008 these fees have been accruing but have not been paid.
We are required to file or furnish with or to the Securities and Exchange Commission (“SEC” or “Commission”) our quarterly reports on Form 10−Q, annual reports on Form 10−K, current reports on Form 8−K, annual reports to stockholders and annual proxy statements and amendments to such filings. Our SEC filings are available to the public at the SEC's Public Reference Room at 100 F Street, NE., Washington, DC 20549, on official business days during the hours of 10 a.m. to 3 p.m. The public may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. Our SEC filings are also available to the public on the SEC’s website at http://www.sec.gov.
The Company failed to file on a timely basis its Annual Reports on Form 10-K for the years ended December 31, 2008, December 31, 2009 and December 31, 2010, and its Quarterly Reports on Form 10-Q for each of the three quarters of 2010 and for the first and second quarters of 2011 on account of its severe cash shortage. The filing of this Form 10-K evidences the determination of our management to take steps to bring the Company in compliance with its reporting obligations under the rules and regulations of the Securities and Exchange Commission, however no assurance can be given as to the timing or ultimate success of these efforts.
ITEM 2.
ITEM 2. DESCRIPTION OF PROPERTY.
The Company's principal executive offices are located in Wilkes-Barre, Pennsylvania, in a space leased by JMI from Mr. Holtzman and his wife, and made available to the Company (without separate charge) through the Company's consulting arrangement with JMI.
ITEM 3.
ITEM 3. LEGAL PROCEEDINGS
On December 13, 2010, Ventures received a letter from the minority members of InStride Ventures claiming that Ventures breached its fiduciary duty to InStride Ventures by entering into an Agreement with United States Pharmaceutical Group, LLC (“USPG”) on May 28, 2010 and demanding that the Company protect and the rights of InStride Ventures. InStride Ventures had previously entered into a product distribution agreement with USPG on September 4, 2008 and the minority members contend that the May 28, 2010 agreement bypassed the rights of InStride Ventures LLC. No further action has been taken by the minority members of InStride Ventures. The Company believes that the claims set forth in the demand letter are without merit and will vigorously defend these claims.
We are, from time to time, involved in various legal proceedings in the ordinary course of business. We do not believe that the resolution of any currently pending legal proceedings, either individually or taken as a whole, will have a material adverse effect on our business, results of operations or financial condition. Nevertheless, we cannot assure you that lawsuits, arbitrations or other litigation will not have a material adverse effect on our business, financial condition or results of operations. We anticipate that we will continue to be subject to litigation and arbitration proceedings in the ordinary course of business. There can be no assurance that any such future litigation will not have a material adverse effect on our business, financial condition or results of operations.
ITEM 4.
ITEM 4. [REMOVED AND RESERVED]
PART II
ITEM 5.
ITEM 5.
MARKET FOR COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND SMALL BUSINESS ISSUER PURCHASES OF EQUITY SECURITIES
Market Price of our Common Stock.
The Company's common stock is trading over-the-counter in the pink sheets under the symbol "GFME.PK"
At August 23, 2011 the Company had 5,088,759 shares of common stock outstanding, held by 41 shareholders of record. This does not reflect persons or entities that held their stock in nominee or "street" name. The following table sets forth the high and low bid quotations per share as reported by the pink sheets for the periods stated. The quotations set forth below reflect inter-dealer prices, without retail mark-up, mark-down or commission, and may not necessarily represent actual transactions.
On August 23, 2011, the last sale price of our common stock in the pink sheets was $0.77 per share.
Recent Sales of Unregistered Shares.
On August 15, 2005, as consideration for the assignment of certain trademarks and rights to the name, image, signature, voice, likenesses, caricatures, sobriquets, and all other identifying features and indicia of Mr. Foreman to Ventures, Foreman was issued membership interests in Ventures, which membership interests will be exchangeable into approximately thirty-five percent (35%), or 1,799,753 shares, of the fully-diluted shares of common stock of the Company. Additionally, a trust of which George Foreman, Jr. and George Foreman III are the trustees was issued shares of the Company's Series A Preferred Stock, which shares entitle the holders thereof, voting separately as a class, to elect two (2) members of the Board. The membership interests and the Series A Preferred Stock were issued in private transactions exempt from registration under the Securities Act of 1933, as amended, in reliance on Section 4(2) thereof. The membership interests were exchanged, at Foreman's option, into shares of the Company's common stock on May 28, 2010, at an exchange rate determined in accordance with the provisions of an investor rights agreement by and among the Company and Ventures, on the one hand, and Mr. Foreman and GFPI on the other hand.
On March 7 and March 31, 2008, the Company conducted closings under Securities Purchase Agreements of the same dates with various buyers (the "Securities Purchase Agreement"). The Securities Purchase Agreements were accepted by the Company, and became enforceable against it, on said closing dates. Pursuant to the Securities Purchase Agreements, as more fully set forth therein, the Company sold 8% Convertible Promissory Notes (the "Notes") in the aggregate principal amount of $1,000,000. The Notes are convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company's common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. Each of the Notes is substantially identical in all material respects except as to the parties thereto, the amounts of securities purchased, the dates of execution, and other minor details. The Company expects that, when issued, each of the Warrants will likewise be substantially identical in all material respects. The buyers included two entities that are controlled by Seymour Holtzman. Mr. Holtzman was a director, chief executive officer and co-chairman of the board of directors of the Company until November 8, 2010. The buyers also include Jeremy Anderson, the chief financial officer of the Company. The aggregate sale price of the Notes was $1,000,000, and the Company paid no underwriting discounts or commissions. The proceeds of these sales were used to fund working capital and to further develop the Foreman brand. The sales were made in reliance upon an exemption from securities registration pursuant to Section 4(2) and/or Rule 506 of Regulation D and/or Regulation S as promulgated by the U.S. Securities and Exchange Commission under the Securities Act of 1933, as amended. The Company believes that these exemptions are available because, among other things, each of the buyers was, to the knowledge of the Company, an accredited investor who acquired the securities for investment purposes and agreed to restrictions on transfer.
Dividend Policy
The Company has not declared or paid any cash dividends on Common Stock and does not intend to declare or pay any cash dividend in the foreseeable future. The payment of dividends, if any, is within the discretion of the Board of Directors and will depend on the Company’s earnings, if any, its capital requirements and financial condition and such other factors as the Board of Directors may consider.
Issuer Purchases of Equity Securities
None.
Securities Authorized for Issuance under Equity Compensation Plans
None.
ITEM 6.
ITEM 6. SELECTED FINANCIAL DATA
Not applicable.
ITEM 7.
ITEM 7.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the consolidated financial statements contained in Item 8 of this Form 10-K.
Results of Operations
Year Ended December 31, 2010 Compared to Year Ended December 31, 2009
The Company's net sales were $512,541 for the year ended December 31, 2010. Sales were derived from UFood ($378,398), NationsHealth ($50,000), and Instride Ventures ($84,143). The cost of sales was $37,376 related to Instride Ventures' therapeutic footwear. The Company's net sales were $595,914 for the year ended December 31, 2009. Sales were derived from UFood ($348,032), Northern Foods ($142,312), and Instride Ventures ($105,570). The cost of sales was $42,929 related to Instride Ventures' therapeutic footwear. As part of the NationsHealth Agreement signed on May 28, 2010, both Ventures and Foreman will share qualified lead income received from NationsHealth in addition to 10% of the net profits derived from the value of diabetic supplies. The Company's licensing agreement with Northern Foods expired in September 2009.
Selling, general and administrative expenses were $360,886 for the year ended December 31, 2010, compared to $539,224 for the year ended December 31, 2009. Selling, general and administration expenses primarily consisted of marketing expenses and payroll and related expenses for accounting and legal personnel, professional and consulting fees, and Directors and Officers insurance, as well as other general corporate expenses. Selling, general and administrative expenses decreased by approximately $178,000 compared to last year as a result of reduced payroll and consulting fees. Consulting fees were about $30,000 higher for the year ended December 31, 2009. As a result of the May 28, 2010 agreement between Ventures and Foreman and GFPI, Foreman agreed to waive any consulting fees due to him. Also, George Foreman, Jr. and George Foreman, III, former employees of the Company, agreed to waive any right to receive any amounts due to them under their employment contracts. This was the primary reason payroll costs were about $155,000 lower in 2010 compared to 2009.
Other expense for the years ended December 31, 2010 and December 31, 2009 was $107,843 and $684,339, respectively. Included in other income(expense) for the year ended December 31, 2010 is interest expense of $141,547 as the Company accrued interest on the convertible notes issued in March 2008 at the default rate of 15% and interest expense on amortization on discount of those same notes of $67,000. Ventures recorded gains on the sale of UFood shares of $100,566 during the year ended December 31, 2010. For the year ended December 31, 2009, interest expense was $82,663 and interest expense on amortization of the notes was $400,000. George Foreman, Jr. and George Foreman, III, former employees of the Company, agreed to waive any right to receive any amounts due to them under their employment contracts. Also included in other expenses for the year ended December 31, 2009 are holding losses on the UFood shares of $147,018 and realized losses on the sale of the Z-Trim securities of $55,000. Included in other income(expense) for the year ended December 31, 2010 and 2009 is interest income on money market accounts of $138 and $342, respectively.
There are both challenges and opportunities in the development of the current products being marketed. If we are able to capitalize on the recognition of the George Foreman name over other less-recognizable promoters, consumers may choose our product. Our biggest challenge in sales of the therapeutic shoe being sold by InStride Ventures appears to be in the large pharmacy retailers. Each retailer needs to dedicate resources to properly train and promote our product to ensure that diabetic patients are aware of the benefits in using the shoe. The licensing agreement with UFood may or may not be successful depending upon UFood's ability to grow and profitably manage their franchises. The licensing agreement with NationsHealth may or may not be successful depending upon NationsHealth's ability to promote and profitably manage their core diabetic supply business. The success of the LifeShake is dependent on our partner’s ability to market the product and fulfill orders in a timely manner should any test marketing indicate such an opportunity for success.
Critical Accounting Policies and Estimates
The SEC has recently issued Financial Reporting Release No. 60, "Cautionary Advice Regarding Disclosure About Critical Accounting Policies" ("FRR 60"), suggesting companies provide additional disclosure and commentary on those accounting policies considered most critical. FRR 60 considers an accounting policy to be critical if it is important to the Company's financial condition and results, and requires significant judgment and estimates on the part of management in its application as contemplated by FRR 60 based on our current state of operations. For a summary of all of the Company's significant accounting policies, including the accounting policies the Company believes to be critical, see Note 4 to the accompanying consolidated financial statements based on the Company's current activities.
Operating Lease Accruals
The Company has vacated possession of its premises subject to operating leases. See also Item 2, Part 1, of this Form 10-K.
Liquidity and Capital Resources
Net cash used in operating activities was $111,719 for the year ended December 31, 2010. The cash used resulted from the amortization of deferred royalties of $362,362, and gains on the sale of UFood shares of $100,566, offset by net earnings of $6,436, a decrease in accounts receivable of $18,693, an increase in accounts payable and accrued expenses of $150,080, an increase in interest payable of $109,000, and the amortization of discounted notes of $67,000.
Net cash provided by investing activities was $143,349 for the year ended December 31, 2010. This was the result of proceeds from the sale of UFood shares of $143,349.
Net cash provided by financing activities was $40,307 for the year ended December 31, 2010. This was due to net proceeds received from related parties.
At December 31, 2010, the Company had $170,996 in cash and cash equivalents compared to $99,059 at December 31, 2009. On March 7, 2008 and March 31, 2008, the Company sold Notes in the aggregate principal amount of $1,000,000. The Company does not believe that its existing cash and cash equivalents are sufficient to satisfy its current obligations. The Company expects that its primary use of cash over the short-term will be for the payment of expenses to develop sales of the therapeutic footwear of InStride Ventures LLC, possible test marketing of the LifeShake, costs associated with the operation as a public company (legal, accounting, consulting, insurance, etc.) and the repayment of its interest and debt under the Notes. To the extent that management of the Company develops the Foreman brand, it may have a significant impact on our liquidity.
Factors That May Affect Our Business, Financial Condition and Results of Operations
We are in default on certain debt obligations.
We have debt obligations of over $1 million that are currently in default under the Notes and we continue to face significant interest expenses under the Notes. A more detailed discussion of the Notes is set forth under Note 16 to our audited financial statements below. Our ability to generate cash flows from operations and to make scheduled payments on our indebtedness, including the notes, will depend on our future financial performance. Our future performance will be affected by a range of factors, many of which we cannot control, such as general economic and financial conditions in our industry or the economy at large. A significant reduction in operating cash flows resulting from changes in economic conditions, increased competition, or other events could increase the need for additional or alternative sources of liquidity and could have a material adverse effect on our business, financial condition, results of operations and prospects and our ability to service our debt, including the Notes, and other obligations. The Company is in default under the Notes due to its failure to pay principal and interest through July 2011 in the aggregate amount of $1,200,708.
A large percentage of our revenues are derived from a small number of customers.
For the year ended December 31, 2010, we derived approximately 74% of our consolidated revenues from UFood and 10% from both ShopKo Stores and NationsHealth. Furthermore, our agreement with UFood expires in June 2011, which will significantly decrease our revenues going forward. The success of the NationsHealth agreement is dependent on NationsHealth’s ability and desire to promote their core diabetic supplies. The Company is contemplating possible test marketing of the LifeShake but our cash shortage may limit our marketing ability. That being said, there are no apparent leads for additional revenue in the short or long term.
The Company's success will depend primarily upon its ability to exploit and protect the intellectual property rights that Mr. Foreman has assigned to Ventures.
Mr. Foreman has entered into numerous licensing, endorsement and other agreements over the last decade, and there can be no assurances that a third party will not assert a claim to some or all of the intellectual property rights that the Company believes have been assigned to Ventures. In addition, the PTO may cite preexisting trademark applications and registrations by third parties against, and prior trademark owners may oppose, future trademark applications by the Company or Ventures incorporating the George Foreman name. Further, even if the Company or Ventures were able to obtain acceptance of its trademark applications by the PTO, a significant number of similar marks registered by, and licensed to, third parties could diminish the value and protectability of the intellectual property held by the Company or Ventures. As Mr. Foreman gets older, the intellectual property rights that the Company has been assigned to Ventures may have diminishing market appeal/value.
Resignation of George Foreman, Sr. from the Board of Directors.
George Foreman, Sr. retired from the Board of Directors on May 28, 2010. Furthermore, Ventures is limited in the use of Mr. Foreman’s name and likeness to the products and categories it has already developed. Ventures may not explore the further development of the Foreman brand into new products and categories and may only promote and develop those agreements it has under the InStride, Vita Ventures, UFood, and NationsHealth. These limitations may significantly impede our ability to grow, which would adversely affect our financial conditions, results of operations and business prospects.
Our independent registered public accounting firm has issued a "going concern" opinion.
We have a history of net losses and negative cash flows from operations and the remaining cash available at December 31, 2010 is $170,996. Our ability to continue as a going concern is dependent upon our ability to generate profitable operations in the future and/or obtain the necessary financing to meet our obligations and repay our liabilities arising from normal business operations when they come due. We cannot give assurance that we will achieve sufficient revenues in the future to achieve profitability and cash flow positive operations. The outcome of these matters cannot be predicted at this time and there are no assurances that, if achieved, we will have sufficient funds to execute our business plan or to generate positive operating results. Our independent registered public accounting firm has indicated that these matters, among others, raise substantial doubt about our ability to continue as a going concern.
Following the filing of this report, we will remain delayed in our SEC reporting obligations, we cannot assure you when we will complete our remaining SEC filings for periods subsequent to those included in this report, and we are likely to continue to face challenges related to the delayed filings until we complete these filings.
We continue to face challenges with regard to completing our remaining SEC filings for periods subsequent to those included in this report. We remain delayed with our SEC reporting obligations as of the filing date of this report and we cannot assure you that we will be able to complete our remaining filings for periods subsequent to those included in this report. Until we complete these remaining filings, we expect to continue to face many of the risks and challenges we have experienced during our extended filing delay period, including, without limitations:
·
the possibility that the SEC could commence an enforcement action against the Company;
·
continued concern on the part of customers, partners, investors, and employees about our financial condition and extended filing delay status, including potential loss of business opportunities;
·
continued distraction of our senior management team and our board of directors as we work to complete our remaining filings;
·
limitations on our ability to raise capital and make acquisitions; and
·
general reputational harm as a result of the foregoing.
Even if we complete our remaining filings for periods subsequent to those included in this report, we cannot assure you that all of the risks and challenges described above will be eliminated. For example, we cannot assure you that lost business opportunities can be recaptured or that general reputational harm will not persist.
Our stockholders may have difficulty in recovering monetary damages from directors.
Our certificate of incorporation contains a provision, which eliminates personal liability of our directors for monetary damages to be paid to us and our stockholders for some breaches of fiduciary duties. As a result of this provision, our stockholders may be unable to recover monetary damages against our directors for their actions that constitute breaches of fiduciary duties, negligence or gross negligence. Inclusion of this provision in our certificate of incorporation may also reduce the likelihood of derivative litigation against our directors and may discourage lawsuits against our directors for breach of their duty of care even though some stockholder claims might have been successful and benefited stockholders.
Off-balance sheet arrangements
None.
Challenges and Opportunities
We face a number of challenges and opportunities in the near term. Our primary challenge is to raise sufficient cash to meet our operating activities. There is no assurance that we will be able to raise sufficient cash to meet those needs, if at all. Another challenge is that our products are marketed in highly competitive fields. Our primary opportunity is to most effectively use the well-known George Foreman name in our current product offerings.
ITEM 7A.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 8.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
Madsen & Associates, CPA's Inc.
684 East Vine Street
Murray, UT 84107
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors
George Foreman Enterprises, Inc.
Wilkes-Barre, PA 18702
We have audited the accompanying consolidated balance sheets of George Foreman Enterprises, Inc. (collectively, the “Company”) as of December 31, 2010 and 2009, and the related statements of operations, deficiency and cash flows for the two years then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s 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. 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 consolidated financial statement presentation. We believe that our audit provide a reasonable basis for our opinion.
In our opinion, the 2010 and 2009 financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2010 and 2009, and the results of its operations and its cash flows each of the two years then ended, in conformity with accounting principles generally accepted in the United States of America.
The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As of December 31, 2010, current liabilities exceeded current assets by $1.9 million and had a stockholders’ deficiency of approximately $1.8 million. These factors and others described in Note 3 raise substantial doubt about the Company’s ability to continue as a going concern.
These financial statements do not include any adjustments relating to the recoverability and classification of recorded assets, or the amounts and classifications of liabilities that might be necessary in the event the Company cannot continue in existence.
/s/ Madsen & Associates, CPA's Inc.
Madsen & Associates, CPA's Inc.
August 22, 2011
GEORGE FOREMAN ENTERPRISES, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
See accompanying notes to these consolidated financial statements.
GEORGE FOREMAN ENTERPRISES, INC. AND SUBSIDIARIES
Consolidated Statements of Operations
For the Year Ended December 31
See accompanying notes to these consolidated financial statements.
GEORGE FOREMAN ENTERPRISES, INC. AND SUBSIDIARIES
Consolidated Statements of Stockholders' Deficiency
For the Years Ended December 31, 2010 and 2009
See accompanying notes to these consolidated financial statements.
GEORGE FOREMAN ENTERPRISES, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
For the Year Ended December 31
See accompanying notes to these consolidated financial statements.
GEORGE FOREMAN ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
1.
ORGANIZATION
THE COMPANY
The consolidated financial statements include the accounts of George Foreman Enterprises, Inc, its wholly-owned subsidiary, George Foreman Management, Inc. ("the Company"), and its previously majority-owned subsidiary, George Foreman Ventures, LLC ("Ventures"), which became wholly-owned on May 28, 2010. G-Nutritional, Inc. is a wholly-owned subsidiary of Ventures through which a majority ownership position in Vita Ventures, LLC was acquired. Ventures also acquired a majority ownership position in InStride Ventures, LLC. The Company was formed in Delaware in April 1996. The Company’s operations are derived from licensing agreements and royalties received from the right to use the George Foreman name.
On August 15, 2005, the Company and Ventures entered into a series of agreements with George Foreman and George Foreman Productions, Inc. ("GFPI") pursuant to which, among other things, Mr. Foreman assigned certain trademarks and rights to the name, image, signature, voice, likenesses, caricatures, sobriquets, and all other identifying features and indicia of Mr. Foreman to Ventures, and GFPI agreed to furnish the personal services of Mr. Foreman to Ventures. In exchange, Mr. Foreman and GFPI were issued a 15% membership interest in Ventures. These membership interests were, at GFPI and Mr. Foreman's option, exchanged into approximately thirty-five percent (35%), or 1,799,753 shares, of the fully-diluted shares of common stock of the Company on May 28, 2010. By exchanging these membership interests, Mr. Foreman and GFPI’s non-controlling interest of the Company was eliminated. The only remaining non-controlling interests are the 49.9% non-controlling members of InStride Ventures, LLC and Vita Ventures, LLC. In addition, a trust of which George Foreman, Jr. and George Foreman III are the trustees was issued two shares of the Company's Series A Preferred Stock, which shares entitle the holders thereof, voting separately as a class, to elect two (2) members of the Company's Board of Directors (the "Board"). The trust, as holder of such Series A Preferred Stock, has elected George Foreman and George Foreman, Jr. to serve as its designated directors on the Board. On May 28, 2010, George Foreman and George Foreman Jr. resigned as directors and waived all rights to the shares of preferred stock which was then cancelled by the Company.
As part of the May 28, 2010 agreement, Mr. Foreman agreed to waive any right to receive shares of preferred stock pursuant to the Registration Rights Agreement. See Note 14 for further information. George Foreman Jr. and George Foreman III, former employees of the Company, agreed to waive any right to receive any amounts due to them under their employment contracts. The parties agreed to terminate the Services and Assignment Agreements and all of the rights and obligations of the parties thereunder. The Company, Ventures, and each of the respective Affiliates agreed to cease and desist from any and all uses of, and shall not use, the Foreman Indicia, the Indicia Rights and/or the Marks, subject only to the licenses previously provided to Ventures for the use of the Foreman Indicia, the Indicia Rights, the Materials and/or the Marks solely in connection with and for the purpose of complying with and/or exercising its contractual rights, representations, commitments and obligations under the Ventures’ License Agreements.
Effective for the year ended December 31, 2009, the Company adopted the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC). The ASC was established as the sole source of US GAAP and superseded existing accounting and reporting guidance issued by the FASB, Emerging Issues Task Force and other sources. The ASC did not change US GAAP. All references to accounting standards in these consolidated financial statements correspond to ASC references.
2. RECENT DEVELOPMENTS
On May 28, 2010, the Company and Ventures entered into an agreement with George Foreman (“Foreman”) and GFPI, which restructured the contractual rights and obligations of the parties. In addition, Foreman and GFPI exchanged all of their membership interests in Ventures for the Company’s common stock under the Investor Rights Agreement entered into as of August 15, 2005. The parties agreed to terminate the Services and Assignment Agreements and all of the rights and obligations of the parties thereunder. Ventures agreed to sell, grant, assign and otherwise set over to Foreman and GFPI, solely and exclusively and forever, irrevocably and unconditionally, all of their right, title and interest, of every nature and description, whether or not such rights are now known, recognize or contemplated, including the right to enforce the same for all past, present and future infringements, in and to: the Foreman Indicia and the Indicia Rights, marks any and all registrations of, and applications to register, the Marks filed in the United States Patent and Trademark Office, in any states within the United States and anywhere else in the world; and all materials created or produced using the Marks, the Foreman Indicia and/or Indicia Rights including, without limitation, all copyrights therein.
The Company, Ventures, and each of the respective Affiliates agreed to cease and desist from any and all uses of, and shall not use, the Foreman Indicia, the Indicia Rights and/or the Marks, subject only to the licenses previously provided to Ventures for the use of the Foreman Indicia, the Indicia Rights, the Materials and/or the Marks solely in connection with and for the purpose of complying with and/or exercising its contractual rights, representations, commitments and obligations under the Ventures’ License Agreements.
Foreman and GFPI Parties agreed to waive any right to receive shares of preferred stock pursuant to the Registration Rights Agreement (see Note 14) and any amounts due to them. Foreman and George Foreman Jr. resigned from the Company’s board of directors immediately upon the execution of this agreement. George Foreman Jr. and George Foreman III, former employees of the Company, agreed to waive any right to receive any amounts due to them under their employment contracts. As a result of this waiver by George Foreman Jr. and George Foreman III, George Foreman Management Inc. recognized forgiveness of indebtedness of $68,621. When these rights were waived, the Company reclassified the elimination of the $68,621 payroll accrual to additional paid-in capital
Ventures entered into another Agreement with Foreman and United States Pharmaceutical Group, LLC (d/b/a NationsHealth) (“NationsHealth”) on May 28, 2010 pursuant to which Foreman was appointed as NationsHealth’s exclusive spokesman for core diabetic supplies and Foreman granted NationsHealth, through the Agreement with Ventures, an exclusive worldwide license to use the Foreman name, likeness, image and signature in connection with advertising to promote the core diabetic supplies. As part of the Agreement, both Ventures and Foreman will share qualified lead income received from NationsHealth in addition to 10% of the net profits derived from the value of diabetic supplies
3.
GOING CONCERN
As shown in the accompanying consolidated financial statements, the Company has liabilities in excess of its assets, has a history of net losses and negative cash flows from operations, mainly due to its inability to generate significant revenues to date, and the remaining cash available at December 31, 2010 is $170,996. These factors create substantial doubt about the Company's ability to continue as a going concern. Management of the Company is developing a plan to meet the Company's long-term cash needs. The ability of the Company to continue as a going concern is dependent on the plan's success. The consolidated financial statements do not include any adjustments that might be necessary if the Company is unable to continue as a going concern.
On March 7, 2008, the Company sold 8% Convertible Promissory Notes (the “Notes”) in the aggregate principal amount of $800,000 (see Note 15 below). The Notes are convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The proceeds from these transactions have been used to fund working capital. The buyers of the Notes included two entities that are controlled by Seymour Holtzman. Mr. Holtzman was a director, chief executive officer and co-chairman of the board of directors of the Company until November 8, 2010. The buyers also included Jeremy Anderson, the chief financial officer of the Company.
The Company sold 8% Convertible Notes on March 31, 2008 in the aggregate principal amount of $200,000. The Notes are also convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The proceeds from these transactions have been used to fund working capital. The amounts raised in these two transactions were not sufficient to ensure the Company's ability to continue as a going concern.
The Company's success will depend primarily upon its ability to exploit and protect the intellectual property rights that Mr. Foreman has assigned to Ventures. Furthermore, Ventures is limited in the use of Mr. Foreman’s name and likeness to the products and categories it has already developed. Ventures may not explore the further development of the Foreman brand into new products and categories and may only promote and develop those agreements it has under the InStride, Vita Ventures, Ufood, and NationsHealth. These limitations may significantly impede our ability to grow, which would adversely affect our financial conditions, results of operations and business prospects. Mr. Foreman has entered into numerous licensing, endorsement and other agreements over the last decade, and there can be no assurances that a third party will not assert a claim to some or all of the intellectual property rights that the Company believes have been assigned to Ventures. In addition, the United States Patent and Trademark Office ("the "PTO") may cite preexisting trademark applications and registrations by third parties against, and prior trademark owners may oppose, future trademark applications by the Company or Ventures incorporating the George Foreman name. Further, even if the Company or Ventures were able to obtain acceptance of its trademark applications by the PTO, a significant number of similar marks registered by, and licensed to, third parties could diminish the value and protectability of the intellectual property held by the Company or Ventures.
The Company can give no assurance that the Company's existing cash and cash equivalents are sufficient to satisfy its current obligations. The Company expects that its primary use of cash over the short-term will be for the payment of expenses to develop sales of the therapeutic footwear of InStride Ventures LLC, possible test marketing of the LifeShake, costs associated with the operation as a public company (legal, accounting, consulting, insurance, etc.) and the repayment of its interest and debt under the Notes. Ventures is limited in the use of Mr. Foreman’s name and likeness to the products and categories it has already developed. Ventures may not explore the further development of the Foreman brand into new products and categories and may only promote and develop those agreements it has under the InStride, Vita Ventures, Ufood, and NationsHealth. These limitations may significantly impede our ability to grow, which would adversely affect our financial conditions, results of operations and business prospects.
4.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPALS OF CONSOLIDATION
The financial statements include the accounts of the Company and the Company’s subsidiaries and majority-owned subsidiaries. All material intercompany balances and transactions have been eliminated. For the consolidated subsidiaries in which the Company’s ownership is less then 100 percent (100%), the outside stockholders’ interest are shown as non-controlling interest. The non-controlling interest of the Company’s earnings or loss is classified as net earnings or loss attributable to non-controlling interests in the consolidated statement of operations.
CASH AND CASH EQUIVALENTS
The Company considers all highly-liquid investments with an original maturity date of three months or less when purchased to be cash equivalents.
ACCOUNTS RECEIVABLE AND ALLOWANCE FOR DOUBTFUL ACCOUNTS
Accounts receivable are recorded at amounts the Company expects to collect. The Company calculates allowances for estimated losses resulting from the inability of customers to make required payments. The Company does not require collateral on credit sales and reviews its accounts receivable aging on a regular basis to determine if any of the receivables are past due. While historical loss experience is utilized in determining the Company’s allowance for doubtful accounts, the Company believes this factor may not by itself provide an accurate depiction of future losses, given the current economic conditions. If the financial condition of the Company’s customers were to deteriorate, to the extent that their ability to make payments is impaired, additional allowances may be required. The Company writes off all uncollectible trade receivables against its allowance for doubtful accounts.
MARKETABLE SECURITIES
The Company generally classifies its equity securities as “available for sale” and, accordingly, reflects unrealized gains and losses, net of deferred income taxes, as a component of accumulated other comprehensive income (loss). The Company periodically reviews its marketable securities and determines whether the investments are other-than-temporarily impaired. If the investments are deemed to be other-than-temporarily impaired, the investments are written down to their then current fair market value. During the years ended December 31, 2010 and 2009, the Company recorded impairment charges of $-0- and $147,018, respectively, related to certain of its investments.
REVENUE RECOGNITION
The Company recognized revenue in accordance with the guidance contained in ASC 605, (“Revenue Recognition”). Revenue is recognized from earnings from license fee arrangements for use of the George Foreman name. Revenues are recognized on a straight-line basis over the life of the contracts. Any unearned portion of the license fees received are recorded as deferred royalties on the Company’s consolidated balance sheet.
INCOME TAXES
The Company accounts for income taxes under the asset and liability method, in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 740, “Income Taxes” (“ASC740”), which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.
The Company records net deferred tax assets to the extent that the Company believes that these assets will more-likely-than-not be realized. In making such determination, the Company considers all available positive and negative evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax planning strategies and recent financial results. In the event that the Company were to determine that it would be able to realize its deferred income tax assets in the future in excess of its net recorded amount, the Company would make an adjustment to the valuation allowance, which would reduce the provision for income taxes.
The principal item giving rise to deferred taxes is expenses deductible for tax purposes that are not deductible for book purposes and a net operating loss carry forward.
IMPAIRMENT OF LONG-LIVED ASSETS
The Company records impairment losses on long-lived assets used in operations when events and circumstances indicate that the assets might be impaired and the undiscounted cash flows expected to be generated by those assets are less than the carrying amount of those items. The Company's cash flow estimates are based on limited operating history and have been adjusted to reflect management's best estimate of future market and operating conditions. The net carrying values of assets deemed not recoverable are reduced to fair value. The Company's estimates of fair value represent management's best estimates based on industry trends.
NET EARNINGS (LOSS) PER SHARE
Basic earnings (loss) per share excludes dilution and is computed by dividing earnings (loss) available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted earnings (loss) per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shares in the earnings (loss) of the Company. Certain unexercised stock options and stock warrants to purchase shares of the Company's common stock as of December 31, 2010 and 2009, were excluded in the computation of diluted earnings (loss) per share because the options' and warrants’ exercise price was greater than the average market price of the Company's common stock and the effect would be antidilutive. For the years ended December 31, 2010 and 2009, there were 1,515,000 potential common shares outstanding.
The weighted average shares outstanding used in the computation of basic and diluted earnings (loss) per share are as follows:
USE OF ESTIMATES
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. On an on-going basis, the Company evaluates its estimates, including those related to future cash flows associated with impairment testing for long-lived assets. The Company bases its estimates on assumptions that are believed to be reasonable under the circumstances. Actual results may differ from these estimates.
RECENT ACCOUNTING PRONOUNCEMENTS
The Financial Accounting Standards Board (“FASB”) has published an update to the accounting guidance on fair value measurements and disclosures as it relates to investments in certain entities that calculate net asset value per share (or its equivalent). This accounting guidance permits a reporting entity to measure the fair value of certain investments on the basis of the net asset value per share of the investment (or its equivalent). This update also requires new disclosures, by major category of investments, about the attributes of investments included within the scope of this update. The guidance in this update is effective for interim and annual periods ending after December 15, 2009. The adoption of this standard did not have a material impact on the Company’s results of operations, financial condition or cash flows.
5.
FAIR VALUE MEASUREMENT
The Company utilizes the accounting guidance for fair value measurements and disclosures for all financial assets and liabilities and nonfinancial assets and liabilities that are recognized or disclosed at fair value in the condensed consolidated financial statements on a recurring basis or on a nonrecurring basis during the reporting period. The fair value is an exit price, representing the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants based upon the best use of the asset or liability at the measurement date. The Company utilizes market data or assumptions that market participants would use in pricing the asset or liability. The accounting guidance establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value. These tiers are defined as follows:
Level 1 - Observable inputs such as quoted market prices in active markets
Level 2 - Inputs other than quoted prices in active markets that are either directly or indirectly observable
Level 3 - Unobservable inputs about which little or no market data exists, therefore requiring an entity to develop its own assumptions
As of December 31, 2010, the Company held certain financial assets that are measured at fair value on a recurring basis. These consisted of cash and cash equivalents and investments in marketable securities. The fair value of the cash and cash equivalents and marketable securities is determined based on quoted market prices in public markets and is categorized as Level 1. The Company does not have any financial assets measured at fair value on a recurring basis as Level 2 or Level 3 and there were no transfers in or out of Level 1, Level 2 or Level 3 during the year ended December 31, 2010.
The following table sets forth by level, within the fair value hierarchy, the Company’s financial assets accounted for at fair value on a recurring basis as of December 31, 2010 and 2009.
Marketable securities are measured at fair value using quoted market prices and are classified within Level 1 of the valuation hierarchy. As of December 31, 2009, management determined the investments were other-than-temporarily impaired and recorded the investments at amortized fair value. In accordance with ASC ###-##-####, the investments should not be adjusted for subsequent recoveries in fair value.
The Company has other financial instruments, such as receivables, accounts payable and other liabilities, notes payable and customer deposits, which have been excluded from the tables above. Due to the short-term nature of these instruments, the carrying value of receivables, accounts payable and other liabilities, notes payable and customer deposits approximate their fair values. The Company did not have any other financial liabilities within the scope of the fair value disclosure requirements as of December 31, 2010.
6.
PREPAID EXPENSES AND OTHER CURRENT ASSETS
Prepaid expenses and other current assets at December 31, 2010 and 2009 were $25,000, respectively. These balances represent prepaid insurance for the Directors and Officers Liability Policy. The amounts are being expensed monthly over the life of the policy.
7.
INVESTMENT IN COMMON STOCK - MARKETABLE SECURITIES
On June 12, 2007, Ventures and KnowFat Franchise Company, Inc. (“KnowFat”), consummated a transaction pursuant to which Ventures granted KnowFat a non-exclusive limited license to use the name and likeness of George Foreman in connection with the promotion of restaurants operated by KnowFat and its franchisees. In exchange, Ventures was granted a total of 900,000 shares of common stock of KnowFat, of which 450,000 shares vested at date of closing and the remaining shares will vest over the four-year term of the licensing agreement. On December 18, 2007, KnowFat entered into a merger agreement and commenced business operations as a publicly traded company under the name Ufood Restaurant Group, Inc ("Ufood"). Due to the conversion of shares upon the merger, the number of shares of Ufood common stock that Ventures was granted increased to 1,371,157.
This nonmonetary exchange was accounted for under FASB ASC 505-50-30-18, “Equity-Based Payments to Non-Employees” (“ASC 505-50-30-18”). Under ASC 505-50-30-18 the 450,000 shares of Ufood (formerly known as KnowFat) common stock was recorded at the estimated fair value of $513,000 at the date of vesting. On June 12, 2008, an additional 304,702 shares of Ufood vested in accordance with the licensing agreement. These shares were valued at their fair value of $588,075 on the vesting date. On June 12, 2009, an additional 152,351 shares of Ufood vested in accordance with the licensing agreement. These shares were valued at their fair value of $30,470 on the vesting date. On June 12, 2010, an additional 152,351 shares of Ufood vested in accordance with the licensing agreement. These shares were valued at their fair value of $45,705 on the vesting date. As the remaining shares vest in accordance with the terms of the agreement, they will also be recorded at their then estimated fair value.
During the year ended December 31, 2010, the Company sold the 534,788 shares of Ufood common stock for $143,349 and recorded a realized gain of $100,566 which is included in the Company’s consolidated statement of operations for the year ended December 31, 2010. During the year ended December 31, 2009, the Company sold the three million shares of Z-Trim common stock for $35,000 and recorded a realized loss of $55,000 which is included in the Company’s consolidated statement of operations for the year ended December 31, 2009.
The investment in common stock of KnowFat is accounted for in accordance with FASB ASC 320, "Investments - Debt and Equity Securities", and classified as an available-for-sale security. As of December 31, 2010 and 2009, the Company owned 760,194 and 1,142,631 shares, with an amortized fair value of $94,333 and $91,410, respectively. During the year ended December 31, 2009, the Company recorded impairment charges of $147,018, as the Company determined the investment was deemed to be other-than-temporarily impaired.
8.
PREFERRED SHARES
A trust of which George Foreman, Jr. and George Foreman III are the trustees was issued two shares of the Company's Series A Preferred Stock, which shares entitle the holders thereof, voting separately as a class, to elect two (2) members of the Company's Board of Directors (the "Board"). The trust, as holder of such Series A Preferred Stock, had elected George Foreman and George Foreman, Jr. to serve as its designated directors on the Board. On May 28, 2010, George Foreman and George Foreman Jr. resigned as directors and waived all rights to shares of the preferred stock which was then cancelled by the Company.
9.
DEFERRED ROYALTY REVENUES
Deferred revenues include the unearned portion of licensing fees from Ufood (formerly known as KnowFat) amounting to $1,177,250, net of $1,000,854 recognized as revenue through December 31, 2010, to be recognized on a straight-line basis over the four-year term of the contract. Deferred revenues include the unearned portion of licensing fees from Ufood amounting to $1,131,545, net of $638,493 recognized as revenue through December 31, 2009, to be recognized on a straight-line basis over the four-year term of the contract. As future shares of Ufood vest (see Note 7), their fair value will be deferred and recognized over the remaining term of the contract.
10.
SHARE-BASED COMPENSATION
The Company records compensation expense in its consolidated statement of operations related to employee stock-based options. For the years ended December 31, 2010 and 2009, no options were granted and the Company did not use any cash to settle any equity instruments granted under share based arrangements.
The 1996 Stock Option Plan (the "Plan") was adopted by the Board of Directors and approved by the stockholders in 1996 and terminated on July 2, 2006. The purpose of the Plan was to promote the long-term growth and profitability of the Company by providing key people with incentives to contribute to the growth and financial success of the Company. The aggregate number of shares of common stock for which options may have been granted under the Plan could not exceed 6,500,000 shares as voted on by a majority of the stockholders during the 2000 annual stockholder meeting.
Option activity during the years ended December 31, 2010 and 2009 is as follows:
On July 30, 2003 the Company changed from a stock/option based compensation plan to a cash-based compensation plan for directors. Independent directors are entitled to receive $7,500 on being appointed and $7,500 as an annual retainer upon the anniversary of their appointment. Each independent director is entitled to a payment of $1,000 for each board or committee meeting he attends; the chairperson of a committee will receive $2,000 per meeting. There are currently no independent directors.
The Company issued 400,000 common stock purchase warrants in connection Convertible Notes payable sold on March 7 and March 31, 2008 (see Note 15 below). These warrants are exercisable at a price of $3.00 per share.
11.
INCOME TAXES
At December 31, 2010, the Company had net operating loss carry-forwards of $96.7 million. The timing and manner in which the remaining operating loss carry-forwards may be utilized in any year will be limited to the Company's ability to generate future earnings and by limitations imposed due to change in ownership. Current net operating loss carry-forwards will expire principally in the years 2021 through 2030. As the Company has not generated any significant operating revenues during recent years and no assurance can be made of future earnings, a valuation allowance in the amount of the deferred tax asset has been recorded. The change in the valuation allowance was $(225,000) in 2010 and $53,000 in 2009. There was no current or deferred provision for income taxes for the years ended December 31, 2010 and 2009.
Substantial changes in the Company’s ownership have occurred, and therefore there is an annual limitation of the amount of the Company’s net operating loss carry forward which can be utilized under Section 382. The remainder of the net operating loss carry-forward also likely might effectively be obviated if certain future events were to occur that would invoke additional Section 382 provisions. Future use of the net operating loss carry-forward therefore is extremely speculative and should not be presumed absent extensive analysis of the complex Section 382 provisions.
Net deferred tax assets consist of:
The Company has not paid any income taxes since its inception.
The provision for income taxes differed from the amount computed by applying the U.S. federal statutory rate to the loss before income taxes due to the effects of the following:
The Company believes it is not more likely than not that the net operating loss carry-forward will be utilized in the future. Consequently, the Company has provided valuation allowances of $36,874,000 and $37,099,000 for the years ended December 31, 2010 and December 31, 2009, respectively.
The Company believes there are no potential uncertain tax positions and all tax returns are correct as filed. Should the Company recognize a liability for uncertain tax positions; the Company will separately recognize the liability for uncertain tax positions on its balance sheet. Included in any liability for uncertain tax positions, the Company will also record a liability for interest and penalties. The Company’s policy is to recognize interest and penalties related to uncertain tax positions as a component of the current provision for income taxes.
12. NON-CONTROLLING INTEREST
Effective January 1, 2009, the Company completed its implementation of ASC 810.
The non-controlling interest represents Mr. Foreman and GFPI’s membership interest in George Foreman Ventures, LLC and the membership interest in InStride Ventures LLC.
The following table sets forth the non-controlling interest balances and the changes in these balances attributable to the non-controlling investors’ interests:
Mr. Foreman and GFPI had a combined 15% interest in Ventures, a subsidiary of the Company. On May 28, 2010, the Company and Ventures entered into an agreement with George Foreman and GFPI, which restructured the contractual rights and obligations of the parties. As part of this agreement, Foreman and GFPI exchanged their combined 15% interest in Ventures for 1,799,753 common shares of the Company. Vitaquest's minority portion of future profits and losses in Vita Ventures and Instride LLC's minority portion of future profits and losses in Instride Ventures is not included in the consolidated financial statements of the Company.
13. RELATED PARTY TRANSACTIONS
Included in related party payables at December 31, 2010 are advances received by InStride Ventures, LLC from its non-controlling interest owner of $3,563, unpaid Director’s fees of $7,500, and unpaid management fees to Jewelcor Management Inc. (“JMI”) of $125,000. Included in related party payables at December 31, 2009 are advances received by InStride Ventures, LLC from its non-controlling interest owner of $10,832, unpaid Director’s fees of $7,500, unpaid management fees to Jewelcor Management Inc. (“JMI”) of $75,000, and smaller amounts totaling $2,424 owed to other related parties. In accordance with the operating agreements, the advances received by InStride Ventures, LLC from its non-controlling interest owner are interest-free and have no specified repayment term. The Company retains JMI for the use of their Wilkes-Barre office and use of various administrative services of JMI for $4,167 per month. The Company's principal executive offices are in space leased by JMI from Seymour Holtzman, the Company's former Co-Chairman of the Board and Chief Executive Officer, and his wife, and made available to the Company (without separate charge) through the Company's consulting arrangement with JMI, which is controlled by Mr. Holtzman.
14. CONTINGENT LIABILITY
The Registration Rights Agreement, dated as of August 15, 2005, by and among the Company, and George Foreman and George Foreman Productions (the "Registration Rights Agreement") provides for contingent additional shares of preferred stock to be issued to GFPI unless the market capitalization of the Company exceeds an average of $20 million over a ten-day trading period within the first three years of the Registration Rights Agreement. At Mr. Foreman's request, the Company shall issue a new series of preferred stock of the Company, having an aggregate liquidation preference of $1 million, bearing interest at 8% per annum, redeemable at the option of the holder three years from the date of issuance. During the year ended December 31, 2007, the Company, in accordance with FASB Statement No. 5, "Loss Contingencies", believed it was probable at that time the market capitalization would not reach or exceed $20 million and therefore recognition of a loss contingency was appropriate. The Company recorded a charge in 2007 of $1 million for this class of contingent preferred stock. As of August 15, 2008, the market capitalization did not reach or exceed $20 million and the shares were issuable upon Mr. Foreman's request, subject to the terms of the Registration Rights Agreement. Mr. Foreman requested these shares on or about October 8, 2008. On May 28, 2010, the Company and Ventures entered into an agreement with George Foreman and GFPI, which restructured the contractual rights and obligations of the parties. As part of this agreement, Foreman agreed to waive any right to receive shares of preferred stock pursuant to the Registration Rights Agreement. The Company reclassified the elimination of the $1 million contingent liability to additional paid-in capital.
15. CONVERTIBLE NOTES PAYABLE
On March 7, 2008, the Company sold 8% Convertible Promissory Notes (the “Notes”) in the aggregate principal amount of $800,000. The Notes are convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The fair value of the detachable warrants was $640,000. The buyers of the Notes included two entities that are controlled by Seymour Holtzman. Mr. Holtzman was a director, chief executive officer and co-chairman of the board of directors of the Company until November 8, 2010. The buyers also included Jeremy Anderson, the chief financial officer of the Company. These notes were due on March 6, 2010 and the Company has not paid any of the outstanding principal amount of the Notes that was due and payable upon the maturity date. The Company paid interest on the March 7, 2008 Notes through February 7, 2010 but is in default under the Notes due to its failure to pay principal and interest in the aggregate amount of $805,333, which was due on March 6, 2010.
Effective March 31, 2008, the Company sold newly issued 8% Convertible Notes in the aggregate principal amount of $200,000. The Notes are also convertible into units of the Company at a conversion price of $2.50 per unit, subject to adjustment. Also, each unit consists of one share of the Company’s common stock, par value $0.01 and one common stock purchase warrant, exercisable at a price of $3.00 per share, subject to adjustment. The fair value of the detachable warrants was $160,000. These notes were due on March 31, 2010 and the Company has not paid any of the outstanding principal amount of the Notes that was due and payable upon the maturity date. The Company paid interest on the March 31, 2008 Notes through February 28, 2010 but is in default under the Notes due to its failure to pay interest in the aggregate amount of $201,333, which was due on March 31, 2010.
Both the March 7, 2008 and the March 31, 2008 Notes are currently in default as the Notes were not paid on the maturity dates. The default interest rate under these notes is fifteen percent (15%) and is payable until all of the Company’s obligations under the notes have been satisfied.
On December 8, 2010, the Company issued checks to all holders of the notes, in an amount equal to three (3) months of interest at the pre-default rate, which amounted to $19,500. Jeremy Anderson waived the interest payment due to him as a holder of one of the notes and thus was not paid any amount. The Company currently remains in default on both the March 7, 2008 and March 31, 2008 notes.
The convertible debentures were issued in accordance with ASC 470-20, “Debt with Conversion and Other Options”. The Company calculated the value of the beneficial conversion feature embedded in the convertible notes. In accordance with ASC 470-20, convertible notes are split into two components: a debt component and a component representing the embedded derivatives in the debt. The debt component represents the Company’s liability for interest coupon payments and redemption amounts. The embedded derivative represents the value of the warrant that debtholders have to convert into ordinary shares of the Company. The debt component of the convertible note is measured at amortized cost and therefore increases, with a corresponding charge to finance cost-other than interest. The debt component decreases by the cash interest coupon payments made. The beneficial conversion feature is a discount against the debt and the value to the warrants increases additional paid-in capital.
Convertible debt as of December 31, 2010 and 2009:
For the years ended December 31, 2010 and 2009, the Company recorded interest expense of $141,547 and $82,663, respectively.
ITEM 9.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A.
ITEM 9A. CONTROLS AND PROCEDURES.
The Chief Executive Officer and the Chief Financial Officer are responsible for establishing and maintaining adequate internal control over financial reporting for the Company. Under the supervision and participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the design and effectiveness of our disclosure controls and procedures as such term is defined under Rule 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective as of December 31, 2010, based on the material weakness described below.
A material weakness is a significant deficiency, or combination of significant deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. A significant deficiency is a control deficiency, or combination of control deficiencies, that adversely affects the Company's ability to initiate, authorize, record, process, or report external financial data reliably in accordance with generally accepted accounting principles such that there is more than a remote likelihood that a misstatement of the Company's annual or interim financial statements that is more than inconsequential will not be prevented or detected.
Based upon our evaluation, we believe that internal controls over the financial reporting process are not operating effectively because the Company's severe cash shortage has resulted in the Company having insufficient personnel and other resources. This, in turn, prevented management from being able to receive the necessary financial data and other information to be disclosed in compliance with the SEC requirements. As a result, the Company became delinquent in its filing obligations with the SEC. Specifically, the Company has not been current in its filing obligations since it filed its 10-Q for the quarter ended September 30, 2008. Our management presently is taking measures to address this delinquency; however, no assurance can be given in this regard. The Company has sold a significant amount of its marketable securities and has retained an independent public accountant to audit its financial statements for the years ended December 31, 2008, 2009, and 2010 as well as review its quarterly financial statements for those non-filed periods.
Management's Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal controls over financial reporting, as such term is defined in the Securities Exchange Act of 1934 Rule 13a-15 (f). Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of the Company's internal control over financial reporting as of December 31, 2010. In making this assessment we used the criteria set forth in the framework in Internal Control - Integrated Framework issued by the COSO. Based on such evaluation, management concluded that our internal control over financial reporting was not effective as of December 31, 2010 due to material weaknesses in the controls, as discussed above.
Changes In Internal Control Over Financial Reporting
We have taken significant actions to mitigate certain weaknesses in our disclosure controls and procedures that resulted in the above errors as described above. For 2011, we are attempting to get current in our SEC filing obligations. All disclosures and new financial accounting pronouncements are reviewed internally and discussed with our independent registered accounting firm.
We are dedicated to maintaining the high standards of financial accounting and reporting that we are now establishing and are committed to providing financial information that is transparent, timely, complete and accurate. As a result of the described above, we believe that our financial statements for the periods set forth above fairly present in all material respects our financial condition and results of operations.
ITEM 9B.
ITEM 9B. OTHER INFORMATION.
None.
PART III
ITEM 10.
ITEM 10.
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT; COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Set forth below is certain information regarding the directors and executive officers of the Company.
Name
Age
Position
Chuck Gartenhaus
Director, Chairman of the Board and President
John Swatek
Director and Senior Vice President
Jeremy Anderson
Chief Financial Officer
Chuck Gartenhaus is Chief Executive Officer, President and Chairman of the Board of the Company and has been a member of the Company's Board of Directors since November 2010. The Board of Directors selected Mr. Gartenhaus because it believes he possesses significant operational retail experience. Mr. Gartenhaus also serves as President of Homeclick LLC which is an online retailer of home furnishings since May 2009. From March 2000 to March 2009 Mr. Gartenhaus held various positions including Senior Vice President - Merchandising of Home Décor Products, Inc. which was an online retailer of home furnishings and filed for bankruptcy in 2009.
John Swatek is Vice President of the Company and has been a member of the Company's Board of Directors since November 2010. The Board of Directors selected Mr. Swatek because of the financial experience he possesses. Mr. Swatek also serves as Chief Financial Officer of Homeclick LLC which is an online retailer of home furnishings since May 2009. From June 2007 to March 2009 Mr. Swatek was Chief Financial Officer of Home Décor Products, Inc. which was an online retailer of home furnishings and filed for bankruptcy in 2009. From April 2005 to April 2007 Mr. Swatek was Chief Financial Officer of Hanover Direct, Inc., a direct marketer of home and apparel products.
Jeremy Anderson, CPA is the Chief Financial Officer of the Company and served as a consultant in the position of Chief Financial Officer from August 2004 to August 2005. Mr. Anderson also serves as the Chief Financial Officer of Jewelcor Management, Inc. From 1997 to 2003, he worked in public accounting with Kronick Kalada Berdy & Co. P.C. Mr. Anderson earned his B.S. in accounting from Villanova University.
Set forth below is certain information regarding former directors and executive officers of the Company who resigned from their positions with the Company in 2010.
Seymour Holtzman was Chief Executive Officer and Co-Chairman of the Board of the Company until his resignation from his positions effective November 8, 2010. Mr. Holtzman's decision was not based on any disagreement with the Company. Mr. Holtzman had been a member of the Company's Board of Directors and Chairman of the Board since January 2001. Mr. Holtzman has been involved in the retail business for over 30 years. For many years he has been the President and Chief Executive Officer of Jewelcor, Inc., formerly a New York Stock Exchange listed company that operated a chain of retail stores. From 1986 to 1988, Mr. Holtzman was the Chairman of the Board and Chief Executive Officer of Gruen Marketing Corp, an American Stock Exchange listed company involved in the nationwide distribution of watches. For at least the last five years, Mr. Holtzman has operated Jewelcor Management, Inc, a private company primarily involved in investment and management services. Mr. Holtzman is currently a Director and the Chairman of the Board of Casual Male Retail Group, Inc. (NASDAQ:CMRG).
George Foreman, Sr. was Co-Chairman of the Board of Directors of the Company from 2005 until his resignation from the Board of Directors and from all other officer positions with the Company on May 28, 2010. George Foreman, Sr. also resigned as a member of the Board of Managers of Ventures on May 28, 2010. His resignations were not based on any disagreement with the Company or Ventures. In 1968, George Foreman won the Olympic Heavyweight Boxing Gold Medal. In 1973 he became the Heavyweight Boxing Champion of the World, and regained that title in 1994 to become the oldest heavyweight champion in the history of the sport. Mr. Foreman began the George Foreman Youth and Community Center in 1984, and has devoted his time and resources to the center for the past 20+ years. Mr. Foreman is recognized as one of the greatest endorsers of all time. The George Foreman Grill has sold well over 75 million units. His current portfolio of products includes the George Foreman Grill, Z-trim, which is a fat replacement product, a clothing and shoe line by Casual Male Retail Group, Inc, watches by Elgin, and many more products.
Efrem Gerszberg was President of the Company and had served in such capacity from May 2004 and had served as a member of our Board of Directors since August 15, 2005. On February 28, 2010, Efrem Gerszberg, resigned his positions as the President and a Director of the Company. Mr. Gerszberg's decision was not based on any disagreement with the Company. Since its inception in 1993, Mr. Gerszberg has served on the Board of Directors and Strategic Advisory Panel of Ecko Unlimited, a privately held young men's apparel company. Mr. Gerszberg earned his Juris Doctor degree from Rutgers University School of Law.
Jesse Choper had served as a member of the Company's Board of Directors since May 2001 until his resignation on November 8, 2010. Mr. Choper's decision to resign was not based on any disagreement with the Company. Mr. Choper is the Earl Warren Professor of Public Law at the University of California at Berkeley School of Law where he has taught since 1965. Professor Choper was the Dean of the Law School from 1982 to 1992. He has been a visiting professor at Harvard Law School, Fordham Law School, University of Milan in Italy Law School and Universitad Autonoma Law School in Barcelona, Spain. From 1960 to 1961, Professor Choper was a law clerk for Supreme Court Chief Justice Earl Warren. He is a widely recognized author, lecturer, consultant and commentator on issues of Constitution Law and Corporation Law. Mr. Choper is also a member of the Board of Directors of Casual Male Retail Group Inc. (NASDAQ:CMRG).
George Foreman, Jr. was Senior Vice President and a member of the Board of Directors of the Company from 2005 until his resignation from the Board of Directors and from all other officer positions with the Company on May 28, 2010. George Foreman, Jr. also resigned as a member of the Board of Managers of Ventures on May 28, 2010. His resignations were not based on any disagreement with the Company or Ventures. Mr. Foreman also currently serves as Director of Corporate Relations and Planned Giving at Wiley College. Prior to joining George Foreman Enterprises, Inc. Mr. Foreman was the Vice President of Strategic Management for The Knockout Group, and he worked as a senior marketing executive for Salton, Inc. Mr. Foreman earned a Masters degree from Louisiana State University.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires the Company's officers and directors, and persons who own more than 10% of the Company's Common Stock to file reports of ownership and changes in ownership of the Company's Common Stock with the Securities and Exchange Commission. Based solely on a review of the copies of such reports and written representations from the reporting persons that no other reports were required, the Company believes that during the fiscal year ended December 31, 2010, its executive officers, directors and greater than 10% stockholders filed on a timely basis all reports due under Section 16(a) of the Exchange Act.
Code of Ethics
We have adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions. We will provide a copy of our code of ethics without charge, upon written request to George Foreman Enterprises, Inc., Attention: Richard Huffsmith, General Counsel.
Audit Committee Matters
The purpose of the audit committee is to assist our Board of Directors in the oversight of the integrity of the consolidated financial statements of the Company, the Company's compliance with legal and regulatory matters, the independent auditors' qualifications and independence, and the performance of the Company's independent auditors. The primary responsibilities of the audit committee are set forth in its charter, and include various matters with respect to the oversight of the Company's accounting and financial reporting process and audits of the consolidated financial statements of the Company on behalf of our Board of Directors.
The former member of the Company's audit committee is Jesse Choper. The Company's board had determined that Mr. Choper was an audit committee financial expert and that he is independent as defined in Item 7(d)(3)(iv) of Schedule 14A under the Exchange Act. Mr. Choper resigned effective November 8, 2010. The Company does not currently have an audit committee and has not since the resignation of Mr. Choper.
ITEM 11.
ITEM 11.
EXECUTIVE COMPENSATION.
The following table sets forth certain compensation information for the following individuals for the two most recently completed fiscal years ended December 31, 2010 and 2009. None of the outstanding options were repriced or modified in the last fiscal year. There are no outstanding grants as of December 31, 2010. No other compensation was paid to our named executive officers other than the compensation set forth below.
Summary Compensation Table
Notes to summary compensation table:
(1)
Mr. Gartenhaus was appointed Director, Chief Executive Officer and President on November 5, 2010. Mr. Gartenhaus is paid for his services to the Company by at a base fee of $34,000 per year.
(2)
Mr. Swatek was appointed Director and Senior Vice President on November 5, 2010. Mr. Swatek is paid for his services to the Company by at a base fee of $24,000 per year.
(3)
Mr. Holtzman was a member of the Company's Board of Directors and Chairman of the Board from January 2001 until his resignation on November 8, 2010. Mr. Holtzman was appointed Chief Executive Officer on May 19, 2004. As of January 1, 2006, Mr. Holtzman was paid for his services to the Company by Foreman Management at a base salary of $100,000 per year through July 2008.
(4)
Mr. Foreman was Co-Chairman of the Board of the Company from August 15, 2005 until his resignation on May 28, 2010. As of August 15, 2005, Ventures entered into a services agreement to pay Mr. Foreman $120,000 per year payable in monthly installments. These installment payments were made through March 2009.
(5)
Mr. Gerszberg was appointed President on May 19, 2004 and served in such capacity until his resignation on February 28, 2010. Since January 1, 2006, Mr. Gerszberg was paid for his services to the Company by Foreman Management at a base salary of $150,000 per year through July 2008.
(6)
Mr. Foreman, Jr. was appointed Sr. Executive Vice President on August 15, 2005 and served in such capacity until his resignation on May 28, 2010. Since January 1, 2006, pursuant to an employment agreement with Foreman Management, Mr. Foreman, Jr. was paid for his services to the Company by Foreman Management at a base salary of $150,000 per year through November 2008. The initial term of the agreement with Foreman Management expires in August 2010 with automatic extensions of one or more additional five-year periods unless Foreman Management or Mr. Foreman, Jr. gives written notice to the other party not less than one hundred twenty days prior to the end of the term.
(7)
Mr. Anderson was appointed Chief Financial Officer on August 16, 2004. As of January 1, 2006, Mr. Anderson was paid for his services to the Company by Foreman Management at a base salary of $75,000 per year through July 2008. Mr. Anderson does not currently have an employment agreement with the Company or Foreman Management.
Outstanding Equity Awards at Fiscal Year End
None of the Named Executive Officers exercised any stock options during 2010.
Currently, no plans provide for retirement benefits and there are no contracts or arrangements that provide for payment upon termination or change of control.
Director Compensation
Independent directors are entitled to receive $7,500 on being appointed and $7,500 as an annual retainer upon the anniversary of their appointment. Each independent director is entitled to a payment of $1,000 for each board or committee meeting he attends; the chairperson of a committee will receive $2,000 per meeting.
Consulting Agreements
Pursuant to the terms of a consulting arrangement, JMI provides the Company with the assistance of certain JMI employees and the use of office space and administrative services. In consideration of the foregoing, the Company pays JMI a $4,167 monthly fee. Since July 2008 these fees have been accruing but have not been paid.
ITEM 12.
ITEM 12.
SECURITY OWNERSHIP OF BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDERS MATTERS
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information known to us with respect to the beneficial ownership of our common stock as of August 23, 2011, by (1) all persons who are beneficial owners of 5% or more of our common stock, (2) each director and nominee, (3) the Named Executive Officers in the Summary Compensation Table above, and (4) all directors and executive officers as a group.
The number of shares beneficially owned is determined under rules promulgated by the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under those rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares which the individual has the right to acquire within 60 days of August 23, 2011, through the exercise or conversion of any stock option, convertible security, warrant or other right. Including those shares in the tables does not, however, constitute an admission that the named stockholder is a direct or indirect beneficial owner of those shares. Unless otherwise indicated, each person or entity named in the table has sole voting power and investment power (or shares that power with that person's spouse) with respect to all shares of capital stock listed as owned by that person or entity. Except as otherwise indicated in the table, the address of the stockholders listed below is that of the Company's principal executive office. Directors or executive officers not included in the table below do not hold Company securities.
* Resigned from all positions held with the Company in 2010.
(1)
Percentage of beneficial ownership is calculated assuming 5,088,759 shares were outstanding on August 23, 2011.
(2)
Includes options to purchase 8,000 shares of common stock, 10,000 units and 10,000 warrants each convertible into one share of common stock.
(3)
Includes options to purchase 25,000 shares of common stock; and 8,757 shares of common stock.
(4)
Includes Mr. Foreman's and GFPI's membership interests of Ventures which were exchanged into 1,799,753 shares of common stock of the Company; and options to purchase 129,500 shares of common stock.
(5)
Includes options to purchase 57,500 shares of common stock; and 2,000 shares of common stock.
(6)
Includes options to purchase 165,000 shares of common stock; and 30,000 shares of common stock.
(7)
Includes 45,240 shares owned by Jewelcor Management Inc. and 21,547 units and 21,547 warrants acquired by the Holtzman Opportunity, L.P., each convertible into one share of common stock, of which the general partner's sole member is SH Independence, LLC; and options to purchase 240,500 shares of common stock and 1,433,338 shares of common stock. Seymour Holtzman is the sole member of SH Independence, LLC. Also includes 40,000 units and 40,000 warrants each convertible into one share of common stock, acquired by Jewelcor Investments LLC, a company controlled by Mr. Holtzman.
(8)
See notes (2)-(7).
ITEM 13.
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE.
Beginning May 19, 2004, JMI provided the Company with certain legal, accounting, consulting, management, and other services. The Company's monthly payments to JMI were reduced to $4,167 effective August 15, 2005. The Company also paid Mr. Foreman $10,000 per month as part of his services agreement with Ventures. This payment ceased on May 28, 2010, when the Company and Ventures entered into an agreement with George Foreman (“Foreman”) and GFPI, which restructured the contractual rights and obligations of the parties.
On March 7, 2008, the Company issued the Notes under a Securities Purchase Agreement. The buyers of the Notes included two entities that are controlled by Seymour Holtzman. These entities purchased a total of $250,000 of the Notes. Mr. Holtzman was a director, chief executive officer and co-chairman of the board of directors of the Company until November 8, 2010. Jeremy Anderson, the chief financial officer of the Company purchased $25,000 of the Notes.
Director Independence
The Company does not have any independent directors.
ITEM 14.
ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES.
Audit Fees
Madsen & Associates, CPAs billed the Company $20,000 for the independent audit of the Company's annual financial statements for the year ended December 31, 2009 and $20,000 for the independent audit of the Company's annual financial statements for the year ended December 31, 2010.
Audit Related Fees
None.
Tax Fees
None.
All Other Fees
None.
Policy on Audit Committee Pre-Approval of
Audit and Permissible Non-Audit Services of Independent Auditors
The audit committee's policy is to pre-approve all audit and permissible non-audit services provided by the independent auditors. These services may include audit services, audit-related services, tax services, and other services.
ITEM 15.
ITEM 15.
EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
3.1
Form of Amended and Restated Certificate of Incorporation.(1)
3.2
By-Laws
3.3
Certificate of Ownership and Merger.(4)
3.4
Certificate of Designations, Preferences and Relative, Participating, Optional and Other Special Rights of Preferred Stock and Qualifications, Limitations and Restrictions Thereof of Series A Preferred Stock.(4)
4.1
Form of Common Stock Certificate.(1)
4.2
Form of Series A Preferred Stock Certificate.
10.1
The Company's Amended Stock Option Plan.(1)
10.2
Stock appreciation rights agreement, dated as of December 19, 2002, between the Company and Seymour Holtzman.(2)
10.3
Code of ethics.(3)
10.4
Consulting agreement, dated as of June 10, 2004, between the Company and Jewelcor Management, Inc.(3)
10.5
Assignment Agreement, dated as of August 15, 2005, by and among George Foreman and George Foreman Productions, Inc., on one hand, and George Foreman Ventures LLC, on the other hand.(4)
10.6
Services Agreement dated as of August 15, 2005, by and between George Foreman Productions f/s/o George Foreman and George Foreman Ventures LLC.(4)
10.7
Registration Rights Agreement, dated as of August 15, 2005, by and among MM Companies, Inc., on one hand, and George Foreman and George Foreman Productions, on the other hand.(4)
10.8
Investor Rights Agreement, dated as of August 15, 2005, by and among MM Companies, Inc. and George Foreman Ventures LLC, on one hand, and George Foreman and George Foreman Productions, on the other hand.(4)
10.9
Amended and Restated Limited Liability Company Agreement of George Foreman Ventures LLC, dated August 15, 2005.(4)
10.10
Employment Agreement dated as of August 15, 2005, by and between George Foreman Ventures LLC and George Foreman, Jr.(4)
10.11
Employment Agreement dated as of August 15, 2005, by and between George Foreman Ventures LLC and George Foreman III.(4)
21.1
List of Subsidiaries
31.1
Certification of the Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2
Certification of the Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1
Certification of the Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2
Certification of the Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(1)
Previously filed as an exhibit to the Company's registration statement on Form S-1, as amended and incorporated herein by reference.
(2)
Previously filed as an exhibit to the Company's annual report on Form 10-K for the year ended December 31, 2002 and incorporated herein by reference.
(3)
Previously filed as an exhibit to the Company's annual report on Form 10-K for the year ended December 31, 2004 and incorporated herein by reference.
(4)
Previously filed as an exhibit to the Company's Form 8-K filed on August 15, 2005 and incorporated herein by reference
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
GEORGE FOREMAN ENTERPRISES, INC.
/s/ Chuck Gartenhaus
Chief Executive Officer and Director
August 25, 2011
Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, as amended, 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/ CHUCK GARTENHAUS
Chief Executive Officer and Director
August 25, 2011
Chuck Gartenhaus
/s/ JOHN SWATEK
Director
August 25, 2011
John Swatek
/s/ JEREMY ANDERSON
Chief Financial Officer
August 25, 2011
Jeremy Anderson