As filed with the Securities and Exchange Commission on July 2, 2020

 

File No. 000-56160

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

Form 10

Amendment No. 3

 

 

 

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

AMERGENT HOSPITALITY GROUP INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   84-4842958

(State or Other Jurisdiction

of Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

     
7621 Little Avenue, Suite 414, Charlotte, NC   28226
(Address of Principal Executive Offices)   (Zip Code)

 

Registrant’s telephone number, including area code:

(704) 366-5122

 

Securities to be registered pursuant to Section 12(b) of the Act:

None.

 

Securities to be registered pursuant to Section 12(g) of the Act:

Common Stock, par value $0.0001 per share

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer [  ]   Accelerated filer [  ]
Non-accelerated filer [  ]   Smaller reporting company [X]
      Emerging growth company [  ]

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [  ]

 

 

 

 

 

 

EXPLANATORY NOTE

 

We are filing this Amendment No. 3 to registration statement on Form 10 with original filing date of April 9, 2020 (collectively referred to herein as “Form 10”) to register our common stock, par value $0.0001 per share, pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) in connection with the spin-off transaction described in this Form 10.

 

This Registration Statement, as amended , became effective automatically by lapse of time 60 days from the date of the original filing, April 9, 2020, pursuant to Section 12(g)(1) of the Exchange Act. As of the effective date we are subject to the requirements of Regulation 13(a) under the Exchange Act and are required to file annual reports on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K, and we will be required to comply with all other obligations of the Exchange Act applicable to issuers filing registration statements pursuant to Section 12(g) of the Exchange Act.

 

Our principal place of business is located at 7621 Little Avenue, Suite 414, Charlotte, NC 28226. Our telephone number is: (704) 366-5122.

 

   

 

 

TABLE OF CONTENTS

 

    Page
     
 

FORWARD LOOKING STATEMENTS

3
     
  THE MERGER AND THE SPINOFF 3
  OVERVIEW 3
  BACKGROUND OF THE MERGER AND THE SPIN-OFF 4
  REASONS OF THE MERGER AND THE SPIN-OFF 6
  AGREEMENTS RELATED TO THE SPIN-OFF 8
  SPIN-OFF PROCEEDS AND ASSUMED LIABILITIES 9
  TRANSFERABILITY OF SHARES 10
  MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE SPIN-OFF 11
  AVAILABLE INFORMATION 14
     
  FORM 10 INFORMATION 15
     
Item 1 Description of Business 15
     
Item 1A Risk Factors 18
     
Item 2 Financial Information 32
  CAPITALIZATION 32
  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 32
     
Item 3 Properties 42
     
Item 4 Security Ownership of Certain Beneficial Owners and Management 42
     
Item 5 Directors, Executive Officers, Promoters and Control Persons; Compliance with Section 16(a) of the Exchange Act 44
     
Item 6 Executive Compensation 46
     
Item 7 Certain Relationships and Related Transactions, and Director Independence 48
     
Item 8 Legal Proceedings 48
     
Item 9 Market Price of and Dividends on Registrant’s Common Equity and Related Stockholder Matters 49
     
Item 10 Recent Sales of Unregistered Securities 49
     
Item 11 Description of Registrant’s Securities to be Registered 51
     
Item 12 Indemnification of Directors and Officers 52
     
Item 13 Financial Statements and Supplementary Data 53
     
Item 14 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 54
     
Item 15 Financial Statements and Exhibits 54

 

 2 

 

 

FORWARD LOOKING STATEMENTS

 

This Form 10 and other materials Amergent will file with the SEC contain, or will contain, certain forward-looking statements regarding business strategies, market potential, future financial performance and other matters. The words “will,” “should,” “believe,” “expect,” “anticipate,” “project” and similar expressions, among others, generally identify “forward-looking statements,” which speak only as of the date the statements were made. The matters discussed in these forward-looking statements are subject to risks, uncertainties and other factors that could cause actual results to differ materially from those projected, anticipated or implied in the forward-looking statements. In particular, information included under “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Our Business,” and “The Merger and the Spin-Off” contain forward-looking statements. Where, in any forward-looking statement, an expectation or belief as Amergent’s management and expressed in good faith and believed to have a reasonable basis, but there can be no assurance that the expectation or belief will result or be achieved or accomplished. Except as may be required by law, we undertake no obligation to modify or revise any forward-looking statements to reflect events or circumstances occurring after the date of this information statement. Factors that could cause actual results or events to differ materially from those anticipated include, but are not limited to, the matters described under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

The summaries of documents set forth below in this Form 10 are qualified in their entireties by reference to the full text of the applicable documents, which are filed as exhibits to this Form 10.

 

Unless otherwise noted, references in this Form 10 to the “Registrant,” “Company,” “Amergent,” “Spin-Off Entity,” “we,” “our” or “us” means Amergent Hospitality Group Inc. a Delaware corporation and our subsidiaries. Reference to our “Parent” means Sonnet BioTherapeutics Holdings, Inc., FKA Chanticleer Holdings, Inc., a Delaware corporation.

 

THE MERGER AND THE SPIN-OFF

 

OVERVIEW

 

Amergent Hospitality Group Inc. was incorporated on February 18, 2020 as a wholly-owned subsidiary of Chanticleer for the purpose of conducting the business of Chanticleer and its subsidiaries after completion of the spin-off of all the shares of Amergent to the shareholders of Chanticleer.

 

In connection with and prior to its merger (“Merger”) with Sonnet BioTherapeutics Holdings Inc., a New Jersey Corporation (“Sonnet”), Chanticleer Holdings Inc., a Delaware corporation (“Chanticleer”), contributed and transferred to Amergent Hospitality Group Inc., a Delaware corporation (“Amergent” or “Spin-Off Entity”), a newly formed, wholly owned subsidiary of Chanticleer, all of Chanticleer’s business, operations, assets and liabilities, pursuant to the Contribution Agreement between Chanticleer and Amergent dated March 31, 2020. The contributed assets included the stock interest in all Chanticleer’s subsidiaries (other than Amergent and the merger-sub formed for the purposes of effecting the merger (“Merger-Sub”). On March 16, 2020, pursuant to the disposition agreement between Chanticleer and Amergent dated March 25, 2020 (“Disposition Agreement”), the Chanticleer board declared a dividend with respect to the shares of common stock outstanding at the close of business on March 26, 2020 of one share of the Amergent common stock for each outstanding share of Chanticleer common stock. The dividend, which together with the contribution and transfer of Chanticleer’s restaurant business, assets and liabilities described above, is referred to herein as the “Spin-Off,” was paid on April 1, 2020. Prior to the Spin-Off, Amergent engaged in no business or operations.

 

All of Chanticleer’s then current restaurant business operations were contributed to Amergent and the stockholders of record received the same pro-rata ownership in Amergent as in Chanticleer.

 

As a result of the Spin-Off, Amergent emerged as successor to the business, operations, assets and liabilities of pre-merger Chanticleer. Additionally, Amergent’s shareholder base and their holdings (on a pro-rata basis) are identical to that of pre-merger Chanticleer.

 

The financial information included in this Form 10 includes the accounts of Amergent and its subsidiaries combined with Chanticleer and its subsidiaries. Since all of Chanticleer’s then current restaurant business operations were contributed to Amergent and the stockholders of record received the same pro-rata ownership in Amergent as in Chanticleer, the Spin-Off is expected to be recognized by Amergent at the carrying value of the assets and liabilities contributed by Chanticleer. Further, as a common control transaction, the financial statements of Amergent included in this Form 10 reflect the transaction as if the contribution had occurred as of the earliest period presented in the respective financial statements included herein.

 

Corporation Information

 

Our principal executive offices are located at 7621 Little Avenue, Suite 414, Charlotte, NC 28226. Our telephone number is: (704) 366-5122. Our web site is www.amergenthg.com. Information contained on any website referenced herein is not incorporated by reference in this information statement

 

 3 

 

BACKGROUND OF THE MERGER AND THE SPIN-OFF

 

Chanticleer’s board and management periodically evaluated Chanticleer’s long- and short-term strategic options. Strategic options that were considered included strategic alliances, prospects for mergers and acquisitions, strategic acquisitions and divestitures and other business combinations, as well as its continued operations as an independent company, each with the sole purpose of enhancing stockholder value.

 

On August 22, 2019, a representative of Chardan Capital Markets, LLC (“Chardan”) on behalf of Sonnet contacted Chanticleer’s executive management, via phone, regarding potential interest of Sonnet in engaging in a reverse merger transaction. Sonnet was not interested in continuing the operations of Chanticleer’s pre-merger business. As such, Chanticleer’s executive management expressed interest in the possibility of a reverse merger and a spin-off of its existing assets and liabilities.

 

On August 23, 2019, Chardan informed Sonnet of the initiated discussions with Chanticleer executive management. On the same day, Chanticleer and Sonnet entered into a non-disclosure and confidentiality agreement.

 

On August 26, 2019, Chardan, on behalf of Sonnet, sent Chanticleer a non-binding proposal which outlined the potential terms of a reverse merger transaction and spin-off of Chanticleer’s assets and liabilities. Subject to various assumptions, the proposal included an anticipated pro-forma post-closing equity ownership of 92% for the Sonnet stockholders and 8% for Chanticleer stockholders.

 

On August 26, 2019, and August 27, 2019, Chanticleer’s management held multiple discussions with the Chanticleer board to discuss the non-binding proposal agreement.

 

On August 28, 2019, Chanticleer signed the non-binding proposal.

 

On September 2, 2019, Sonnet executive management delivered a draft of the merger agreement to a representative of Chardan which was delivered to Chanticleer’s executive management for review.

 

On September 4, 2019, Chanticleer’s executive management, Sonnet’s executive management, and representatives of Chardan held a conference call to discuss the executed non-binding proposal, review the draft merger agreement, and discuss the timeline of the reverse merger transaction. On the same day Chanticleer’s executive management was granted access to Sonnet’s data room.

 

Beginning September 4, 2019, Chanticleer, Sonnet and their respective advisers conducted mutual due diligence in a variety of areas, including finance, legal and operations. In addition, beginning September 4, 2019, and throughout the month of September, Chanticleer’s executive management, Sonnet’s executive management, and representatives of Chardan, Lowenstein Sandler LLP (“Lowenstein”), Sonnet’s outside legal counsel, and Libertas Law Group, Inc. (“Libertas”), Chanticleer’s outside legal counsel, held several calls to discuss a variety of financial and legal matters regarding a potential reverse merger transaction, including the draft merger agreement, the distribution, financing matters and closing conditions.

 

On September 11, 2019, Sonnet’s executive management, representatives of Lowenstein and representatives of Chardan were granted access to Chanticleer’s data room. In addition, a representative of Libertas sent a revised draft merger agreement to representatives of Lowenstein, including proposed changes to the exchange ratio, representations and warranties, covenants and closing conditions, among others.

 

On September 11, 2019, Sonnet’s executive management, Chanticleer’s executive management and representatives of Lowenstein, Chardan and Libertas held a conference call to negotiate various items in the draft merger agreement, including the disposition, solicitation provisions and covenants.

 

On September 17, 2019 and September 25, 2019, representatives of Lowenstein, Libertas and K&L Gates LLP (“K&L Gates”), outside tax counsel to Chanticleer, held conference calls to discuss tax matters related to the Merger, disposition and related transactions.

 

 4 

 

 

Following consultations with their respective clients, on September 18, 2019 and September 20, 2019, representatives of Lowenstein and Libertas held conference calls to further negotiate the structure of merger agreement, including the closing conditions.

 

On September 24, 2019 and September 27, 2019, Sonnet executive management, Chanticleer executive management and representatives of Lowenstein, Chardan and Libertas held a conference call to negotiate closing conditions and to discuss the disposition.

 

On October 1, 2019, the Sonnet board approved the merger agreement, the disposition, the Merger and the other transactions contemplated by the merger agreement and resolved to recommend that the shareholders of Sonnet approve the merger.

 

On October 2, 2019, and October 8, 2019, Sonnet executive management, Chanticleer executive management and representatives of Lowenstein, Chardan and Libertas held conference calls to finalize the merger agreement and raise final issues, including closing conditions, financing needs and tax issues around the disposition.

 

On October 8, 2019, the Chanticleer board approved the merger agreement, the merger, the Spin-Off and the other transactions contemplated by the merger agreement and resolved to recommend that the stockholders of Chanticleer approve the necessary items pursuant to the merger agreement.

 

On October 10, 2019, the final merger agreement (as amended, referred to herein as the “Merger Agreement”) was signed, and Chanticleer and Sonnet issued a joint press release announcing their entry into the Merger Agreement.

 

Chanticleer’s executive management continued a process of negotiation with the holders of its 8% debenture in the principal amount of $6,000,000 (8% Debentures) in an effort to ensure compliance with the terms of the Merger Agreement, which required Chanticleer to assume or extinguish all of its liabilities at closing. Direct negotiations were not successful.

 

An unrelated third party, Oz Rey, LLC, purchased the 8% Debentures from the original holders in November 2019 and presented Chanticleer with term sheet to refinance the 8% Debentures on November 26, 2019. On January 31, 2020, after two months of negotiation and numerous iterations of the term sheet, Chanticleer and Oz Rey, LLC executed the term sheet to refinance the 8% Debentures on January 31, 2020. The definitive documents, negotiated concurrently with the permutations of potential bridge financing documents, were executed on March 31, 2020 (“Debenture Refinancing”).

 

In connection with the merger negotiations, Chanticleer began a process of seeking bridge financing, the proceeds of which would enable Chanticleer to fund the operations of Chanticleer until the closing of the Merger. Term Sheets from several sources unrelated to each other were received November 27, 2019, December 4, 2019, December 19, 2020 and January 8, 2020. Chanticleer provided updates on the process to Sonnet on a regular basis and submitted near final term sheets to Lowenstein for review and approval of Sonnet and the investor providing Sonnet’s permanent financing. After rigorous negotiations and review, Chanticleer executed term sheet for the bridge financing (“Bridge Financing”) – structured as a sale of Series 2 Convertible Preferred Stock (“Series 2 Preferred Stock”).

 

In connection with the merger negotiations, Sonnet and Chardan began a process of seeking a permanent financing in connection with the Merger. During December 2019, Sonnet and Chardan negotiated with certain of the investors regarding the proposed financing and provided updates on the process to Chanticleer on a regular basis, and certain of the investors provided Chardan and Lowenstein with a draft of a term sheet for the proposed financing, which the parties negotiated, culminating in its execution on December 13, 2019.

  

 5 

 

 

On January 27, 2020, Lowenstein sent a draft of an amendment to the Merger Agreement to Libertas.

 

On February 4, the Chanticleer board approved the amendment to the Merger Agreement, the Merger, the disposition and the other transactions contemplated by the Merger Agreement, resolved to recommend that the stockholders of Chanticleer approve the necessary items pursuant to the Merger Agreement, approved the documents relating to the pre-merger financing, including the securities purchase agreement and approved the documents relating to the Bridge Financing, including the preferred securities purchase agreement.

 

On February 4, 2020, the Sonnet board approved the amendment to the Merger Agreement, the Merger, the disposition and the other transactions contemplated by the Merger Agreement, resolved to recommend that the shareholders of Sonnet approve the Merger, and approved the documents relating to the pre-merger financing, including the securities purchase agreement.

 

On February 7, 2020, Chanticleer, Sonnet and Chardan entered into the amendment to Chardan’s engagement agreement.

 

On February 7, 2020, Chanticleer, Sonnet and the investors entered into a securities purchase agreement and a registration rights agreement with the investor providing Sonnet’s permanent financing.

 

On February 7, 2020, Chanticleer, the merger sub and Sonnet entered into the amendment to the Merger Agreement.

 

On February 7, 2020, Chanticleer entered into the securities purchase agreement and related documents for the Bridge Financing.

 

On March 25, 2020, Chanticleer and Amergent executed the Disposition Agreement.

 

On March 25, 2020, Amergent, Chanticleer and Sonnet entered into an indemnification agreement providing that Chanticleer, Sonnet, and each of their respective directors, officers, stockholders and managers who assumes such role upon or following the Merger will be fully indemnified and held harmless by Amergent, to the greatest extent permitted under applicable law, for any and all claims in connection with the Spin-Off for a period of six years from the date of the disposition.

 

On March 31, 2020, Chanticleer and Amergent executed the Contribution Agreement.

 

On March 31, 2020, Amergent ratified the Disposition Agreement, accepted the Contribution Agreement, accepted the Debenture Refinancing documents and designated the class of preferred stock required to satisfy obligations under the Bridge Financing.

 

REASONS FOR THE MERGER AND THE SPIN-OFF

 

After discussion, in an action by unanimous written consent, the Chanticleer board unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger are fair to, advisable and in the best interests of Chanticleer and its stockholders (ii) approved and declared advisable the Merger Agreement and the Merger, including the issuance of shares of Chanticleer common stock to the stockholders of Sonnet pursuant to the terms of the Merger Agreement and (iii) approved and declared advisable the Spin-Off.

 

In the course of its evaluation of the Merger Agreement, merger with Sonnet and Spin-Off, the Chanticleer board held numerous meetings, consulted with Chanticleer’s executive management, Chanticleer’s outside legal counsel and Chanticleer’s financial advisors, and reviewed and assessed a significant amount of information, and considered a number of factors, including the following:

 

  the Chanticleer board’s belief that Chanticleer’s business, operational and financial prospects, including its cash position and inability to satisfy $3 million in debt obligations coming due December 31, 2019, and the substantially diminished price of its common stock make it highly unlikely Chanticleer will find financing alternatives in light of the closing condition of the $6,000,000 payment from Sonnet;
  the Chanticleer board’s conclusion that the merger provides existing Chanticleer stockholders an opportunity to participate in the potential growth of post-merger Sonnet following the merger while still participating in the continuing business of Chanticleer through the Spin-Off, which is also expected to be a publicly traded company;

  the approximately $15,900,000 valuation of Chanticleer in the context of the merger vis a vis the perceived value of Chanticleer reflected in the diminished price of its common stock;
  the Chanticleer’s board’s belief that the Spin-Off Entity will be in a greatly enhanced financial position to continue the restaurant business of Chanticleer; and
  the Chanticleer board’s consideration that post-merger Sonnet will be led by an experienced senior management team from Sonnet.

 

 6 

 

 

The Chanticleer board also considered the recent results of operations and financial conditions of Chanticleer, including:

 

  the loss of certain operational capabilities of Chanticleer, and risks associated with continuing to operate Chanticleer on a stand-alone basis, including limiting the number of employees to only those personnel essential to running a public company and relying on outside consultants and third-party contractors;
  the results of substantial efforts made over several months to solicit alternate strategic transactions for Chanticleer on Chanticleer’s behalf;
  the current financial market conditions and historical market prices, volatility and trading information with respect to Chanticleer common stock; and
  the risks, costs and timing and limited amount, if any, that would be distributed to Chanticleer stockholders associated with a potential liquidation of Chanticleer, considering the rights of Chanticleer’s secured 8% debenture holders and the inability of Chanticleer to raise additional capital.

 

The Chanticleer board also reviewed the terms of the Merger Agreement and associated transactions, including:

 

  the fact that the exchange ratio in the Merger Agreement, which was expected to give Chanticleer stockholders approximately 6% (and 2% through warrant coverage issued to the Spin-Off Entity) of the combined company’s outstanding stock, immediately following the merger, is financially attractive in light of Chanticleer’s standalone value, Chanticleer’s recent stock price, Chanticleer’s strategic alternatives, and the potential value of Sonnet following the merger;
  the number and nature of the conditions to Sonnet’s obligations to consummate the merger;
  the number and nature of the conditions to Chanticleer’s obligations to consummate the merger;
  the rights of, and limitation on, Chanticleer under the Merger Agreement to consider certain unsolicited acquisition proposals under the certain circumstances, should Chanticleer receive a “superior offer”; and
  the Chanticleer board’s belief that the terms of the Merger Agreement, including the parties’ representations, warranties and covenants, deal protection provisions and the conditions were reasonable for a transaction of this nature.

 

The Chanticleer board also considered a variety of risks and other countervailing factors related to the Merger, including:

 

  the up to $500,000 termination fee payable by Chanticleer to Sonnet upon the occurrence of certain events and the potential effect of such termination fee in deterring other potential acquirers from proposing an alternative transaction that may be more advantageous to Chanticleer stockholders;
  the substantial expenses to be incurred by Chanticleer in connection with the Merger;
  the possible volatility of the trading price of the Chanticleer common stock resulting from the announcement of the Merger;
  the risks that the Merger might not be consummated in a timely manner or at all and the potential effect of the public announcement of the Merger or failure to complete the Merger on the reputation of Chanticleer;
  the risks to Chanticleer’ business, operations and financial results in the event that the Merger was not consummated;
  the strategic direction of post-merger Sonnet, following the closing of the Merger, which will be determined by a board of directors designated entirely by Sonnet;
  disruptions to the business as a result of the separation;
  one-time costs of the separation – Spin-Off Entity will incur costs in connection with the transition to being
  a stand-alone public; company that may include accounting, tax, legal and other professional services costs;
  inability to realize anticipated benefits of the separation – Spin-Off Entity may not achieve the anticipated benefits of the separation for a variety of reasons, including, among others: (i) the separation will require significant amounts of management’s time and effort, which may divert management’s attention from operating and growing the existing business of owning, operating and franchising fast casual dining concepts (“Spin-Off Business”); (ii) following the separation, Spin-Off Entity may be more susceptible to market fluctuations and other adverse events than if it were still a part of Chanticleer; and
  various other risks associated with the combined company and the Merger and Spin-Off.

 

 7 

 

 

The foregoing information and factors considered by the Chanticleer board are not intended to be exhaustive but are believed to include all of the material factors considered by the Chanticleer board. In view of the wide variety of factors considered in connection with its evaluation of the merger and the complexity of these matters, the Chanticleer board did not find it useful, and did not attempt to quantify, rank or assign relative weights to these factors. In considering the factors described above, individual members of the Chanticleer board may have given weight to different factors. The Chanticleer board conducted an overall analysis of the factors discussed above, including thorough discussions with, and questioning of, Chanticleer’s executive management and the financial advisors of Chanticleer, and considered the factors overall to be favorable to, and to support, its determination.

 

AGREEMENTS RELATED TO THE Spin-off

 

Following the separation and distribution, Amergent and Parent operate separately and independently.

 

Merger Agreement

 

Conditions to closing under the Merger Agreement impacting Amergent:

 

  ●  Completion of disposition of the Spin-Off Business;
  Spin-Off Entity was required to assume all indebtedness or other liabilities not extinguished at the time of Merger;
  ●  The Spin-Off Entity was required to enter into an indemnification agreement, acceptable to Sonnet in form and substance, providing that Chanticleer, Sonnet, and each of their respective directors, officers, stockholders and managers who assumes such role upon or following the Merger will be fully indemnified and held harmless by the Spin-Off Entity, to the greatest extent permitted under applicable law, for any and all claims in connection with the Spin-Off for a period of six years from the date of the disposition; and
  the Spin-Off Entity was required to obtain a tail insurance policy, acceptable to Sonnet in form and substance, in a coverage amount of at least $3 million, prepaid in full by the Spin-Off Entity, at no cost to the other parties, effective for at least six years following the consummation of the disposition, covering the Spin-Off Entity’s indemnification obligations.

 

Disposition Agreement

 

On March 16, 2020, pursuant to the Disposition Agreement between Chanticleer and Amergent dated March 25, 2020, the Chanticleer board of directors declared a dividend with respect to the shares of common stock outstanding at the close of business on March 26, 2020 of one share of the Amergent common stock for each outstanding share of Chanticleer common stock

 

Contribution Agreement

 

In connection with and prior to its merger with Sonnet, Chanticleer contributed and transferred to Amergent, a newly formed, wholly owned subsidiary of Chanticleer, all of Chanticleer’s business, operations, assets and liabilities, pursuant to the Contribution Agreement between Chanticleer and Amergent dated March 31, 2020. In exchange for the contribution, Chanticleer received 100% of the equity in Spin-Off Entity.

 

Indemnification Agreement and Tail Policy

 

On March 25, 2020, pursuant to the requirements of the Merger Agreement, Chanticleer, Sonnet and the Amergent entered into an indemnification agreement (“Indemnification Agreement”) providing that Amergent will fully indemnify and hold harmless each of Chanticleer and Sonnet, and each of their respective, directors, officers, stockholders and managers who assumes such role upon or following the closing of the merger against all actual or threatened claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, administrative, investigative or otherwise, related to the Spin-Off Business prior to or in connection with its disposition to Amergent.

 

In addition, pursuant to Merger Agreement, prior to closing of the Merger, the Spin-Off Entity acquired a tail insurance policy in a coverage amount of $3.0 million, prepaid in full by the Spin-Off Entity, at no cost to the indemnitees, and effective for at least six years following the consummation of the disposition, covering the Spin-Off Entity’s indemnification obligations to the indemnitees (referred to herein as the “Tail Policy”).

 

 8 

 

 

Debenture Refinancing

 

In connection with and prior to the Merger and Spin-Off, pursuant to a securities purchase agreement between Chanticleer, Amergent, Oz Rey LLC, a Texas limited liability company, and certain other purchasers dated April 1, 2020, Chanticleer was released from all of its obligations under its 8% secured debentures. The 8% debentures were cancelled. In exchange Amergent (i) issued 10% secured convertible debentures in principal amount of $4,037,889 in Amergent to Oz Rey, LLC, (iii) issued 10-year warrants to purchase up to 2,462,400 shares of common stock to the purchasers at an exercise price of $0.125, and (ii) issued a 10-year warrant to purchase 462,600 shares of common stock to Oz Rey, LLC at an exercise price of $0.50 ($0.50 Warrants”) and (iii) remitted $2,000,000 of the proceeds of the Merger to Oz Rey, LLC (minus $650,000 previously advanced, plus expenses). The debenture may be converted at any time at the option of holder at the lower of $0.10 per share and the volume weighted average price for Amergent’s common stock 10 trading days immediately prior to delivery of the conversion notice. The warrants include a cashless exercise provision. The debentures and warrants include standard anti-dilution provisions as well as weighted average anti-dilution protection in the event Amergent shares are issued below either the exercise/conversion price of the warrants/debenture or the volume weighted average price of Amergent’s common stock for the five trading days immediately prior to issuance of such other securities. The obligation is subject to a first priority security interest in substantially all the assets (excluding the segregated account securing the repayment of the guaranteed return on Series 2 Preferred and Spin-Off Entity Warrant) of Amergent and is guaranteed by all Amergent’s subsidiaries.

 

The number of shares into which the debenture may be converted and the number of shares for which the warrants may be exercised will be limited to 19.9% of the shares of common stock outstanding on the original issue date as required to avoid a requirement from any trading market or exchange upon which Amergent’s common stock becomes traded or listed to receive shareholder approval of the transaction. Without this limitation, the number of shares issuable upon conversion of the debenture and exercise of the warrants exceeds the number of authorized shares of Amergent. The parties are currently in negotiations to address further limitations of beneficial ownership as well as the share deficiency.

 

Pursuant to a registration rights agreement, Amergent granted the investors registration rights for shares of common stock underlying the 10% secured convertible debenture and warrants.

 

Further, contingent upon the termination of Amergent’s interest in the Spin-Off Entity Warrant and Oz Rey, LLC’s cash exercise of $0.50 Warrants, Amergent will assign to Oz Rey, LLC, from the Spin-Off Entity Warrant, a warrant to purchase up to one share of Sonnet’s common stock for each twenty-six $.050 Warrants exercised, up to a maximum of 17,792 shares of Sonnet’s common stock.

 

For as long as Oz Rey, LLC holds 10% debentures, it has the right, but not the obligation, to appoint two directors (“Appointees”) to Amergent’s board. Amergent agreed that its board or governance committee, if it has one, will re-nominate the Appointees as a directors at annual meetings and recommend that stockholders vote “for” such Appointees at annual meetings. All proxies given to management also voted in favor of such Appointees. This right to designate the Appointees is subject to Nasdaq Listing Rules in the event Amergent seeks listing on one of the exchanges of the Nasdaq Stock Market.

 

SPIN-OFF PROCEEDS AND ASSUMED LIABILITIES

Cash Proceeds

 

In connection with the Merger, on April 1, 2020, Chanticleer received proceeds from Sonnet of $6,000,000.

 

Of these proceeds,

 

  ●  $2,929,987.37 was remitted directly to satisfy outstanding indebtedness and other liabilities of Chanticleer immediately prior to the closing, including the following: satisfaction in full of outstanding secured credit facilities with Towne Bank (formerly Paragon Bank), payment to Oz Rey, LLC pursuant to securities purchase agreement dated April 1, 2020 refinancing outstanding 8% debentures reducing principal and reimbursing expenses, redemption of Series 1 Preferred Stock, required payment to holders of certain outstanding warrants; repayment of bridge loan received from Sonnet, and payment of Chanticleer’s legal fees and expenses;
  $1,250,000 was remitted directly, on behalf of Amergent, to a segregated cash account securing Amergent’s Series 2 Preferred Stock obligation, pursuant to the requirements of securities purchase agreement dated February 7, 2020; and
  $1,820,012.63 was remitted to Amergent.

 

Spin-Off Entity Warrant

 

Pursuant to the Merger Agreement, Sonnet issued the Spin-Off Entity Warrant to Amergent. It is a warrant to purchase 186,161, representing 2% of the aggregate outstanding shares of Sonnet, at an exercise price per share of $0.01. It has 5-year term. The Spin-Off Entity Warrant may not be exercised for 180 days from the date of issuance and is a company asset. The underlying shares will not be distributed to shareholders when it is exercised.

 

Assumed Liabilities

 

Pursuant to the Merger Agreement, related Contribution Agreement and Distribution Agreement, Amergent assumed all liabilities of Chanticleer that were not paid-off at the effective time of the Merger.

 

Pursuant to the Indemnification Agreement, Amergent agreed to fully indemnify and hold harmless each of Chanticleer and Sonnet, and each of their respective, directors, officers, stockholders and managers who assumes such role upon or following the closing of the Merger against all actual or threatened claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, administrative, investigative or otherwise, related to the Spin-Off Business prior to or in connection with its disposition to Amergent. In addition, Amergent acquired the Tail Policy to cover its indemnification obligations to the indemnitees under the Indemnification Agreement. The Tail Policy of up to $3.0 million was prepaid in full by Amergent, at no cost to the indemnitees, and will be effective for six years following the consummation of the disposition.

 

As part of the Merger, all of the assets and liabilities of Chanticleers and its subsidiaries were contributed to Amergent.

 

Various subsidiaries of Amergent are delinquent in payment of payroll taxes to taxing authorities. As of March 31, 2020, approximately $2.6 million of employee and employer taxes (including estimated penalties and interest) was accrued but not remitted in years prior to 2019 to certain taxing authorities by certain of these subsidiaries for cash compensation paid. As a result, these subsidiaries are liable for such payroll taxes. These subsidiaries have received warnings and demands from the taxing authorities and management is prioritizing and working with the taxing authorities to make these payments in order to avoid further penalties and interest. Failure to remit these payments promptly could result in increased penalty fees. Of the approximately $2.6 million of liability accrued at March 31, 2020, $81,000 has subsequently been settled. Interest and penalties on the remaining liability are accruing at approximately $3,000 per month.

 

In connection with the Merger, former executive officer of Chanticleer, Richard Adams, filed a claim for damages against American Roadside Burgers, Inc., Chanticleer’s wholly owned subsidiary for unpaid severance. Mr. Adams received timely notification of non-renewal of his employment agreement, which expired December 31, 2019, but argues he is entitled severance benefits triggered by the Merger. Amergent has been advised by legal counsel that Mr. Adam’s claim is frivolous and that he has a low probability of success. Mr. Adams complaint alleges damages in an amount over $25,000.

 

Assumption of Series 2 Preferred Stock

 

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In connection with the Merger and Spin-Off, all 787 outstanding shares of Series 2 Preferred Stock of Chanticleer were automatically exchanged for substantially identical shares of preferred stock in Amergent. The holders of Series 2 Preferred also received an aggregate of 1,426,845 shares of common stock in Amergent. The Amergent board approved the certificate of designations rights and preferences of Series 2 Preferred Stock, more fully set forth in a certificate of designations filed with the Secretary of State of Delaware and authorized the designation and immediate issuance of 787 shares of Series 2 Preferred. In addition, pursuant to Chanticleer’s original agreement with the investors, Amergent issued 5-year warrants to purchase an aggregate of 350,000 shares of Amergent’s common stock to the investors at $1.25 per share. Each share of Series 2 Preferred has a stated value of $1,000. In the event the proceeds received by the investor from the sale of all the shares of common stock issued upon conversion of Series 2 Preferred Stock in both Amergent and its former Parent (“Conversion Shares”) do not equal at least $1,875,000 on August 10, 2020, Amergent must pay the investors an amount in cash equal to the difference between $1,875,000 and the proceeds previously realized by the investors from the sale of the Conversion Shares, net of brokerage commissions and any other fees incurred by investor in connection with the sale of Conversion Shares (the “True-Up payment”). The balance will be paid by Amergent out of either (i) the proceeds from the exercise by Amergent of existing Spin-off Entity Warrants to purchase shares of the common stock of Sonnet or (ii) from a segregated cash account. The segregated cash account was funded in the amount of $1,250,000 at closing of the Merger from $6,000,000 in proceeds received from Sonnet.

 

The True-up payment is accounted for as a derivative instrument. The fair value of the derivative was estimated using a Monte Carlo model and a liability of $529,000 was recorded at the Series 2 Preferred Stock issuance date. The fair value is updated at each reporting date and the liability was $826,000 at March 31, 2020 as reported in the interim combined and consolidated balance sheet, with the $297,000 increase in the liability recorded as an expense in the interim combined and consolidated statement of operations for the three months ended March 31, 2020. The liability will continue to be re-measured through the August 10, 2020 settlement date.

 

The Series 2 Preferred Stock is convertible at the option of holder at the lesser of (i) $1.00 (subject to adjustment for forward and reverse stock splits, recapitalizations and the like) or (ii) 90% of the five day average volume weighted average price of the common, provided the conversion price has a floor of $0.50 (subject to adjustment for forward and reverse stock splits, recapitalizations and the like) Conversion is subject to a beneficial ownership limitation of 4.99%. This limitation may be increased by the holder up to 9.99%, with 61 days’ notice. No dividends shall be declared or paid on the Series 2 Preferred Stock. Upon any liquidation, dissolution or winding-up of Amergent, the holder shall be entitled to receive out of the assets, whether capital or surplus, an amount equal to 125% of the stated value plus any default interest and any other fees or liquidated damages then due and owing thereon under the certificate of designations, for each share of Series 2 Preferred before any distribution or payment shall be made to the holders of Amergent common stock. The holder of Series 2 Preferred will vote together with the holders of common stock as a single class on an as-converted basis on all matters presented to the holders of common stock and shall vote as a separate class on all matters presented to the holders of Series 2 Preferred. Assuming conversion of Series 2 Preferred Stock into common stock at either $0.50 or $1.00 per share the holders of the Series 2 Preferred Stock would receive 1,574,000 or 787,000 shares of common stock and entitled to that number of votes, respectively. In addition, without the approval of the holder, Amergent will not, (i) sell all or substantially all of its assets, merge or consolidate with another entity or voluntarily liquidate or dissolve the corporation, (ii) alter or change the rights, preferences or privileges of the Series 2 Preferred, (iii) authorize or create any class of stock ranking as to dividends, redemption or distribution of assets upon a liquidation senior to, or otherwise pari passu with, the Series 2 Preferred Stock, (iv) amend its certificate of incorporation, as amended, or other charter documents in any manner that adversely affects any rights of the holder, (v) increase the number of authorized shares of Series 2 Preferred Stock, (vi) redeem any shares of capital stock of the company (other than any redemption of securities from officers or employees of the company pursuant to existing contractual arrangements with such officers or employees or in connection with the termination of their employment) or (vii) enter into any agreement with respect to any of the foregoing. Breach of Amergent’s obligations and other circumstances set forth in the Certificate of Designation will trigger a redemption event. The Certificate of Designations provides for customary adjustments in the event of dividends or stock splits and anti-dilution protection.

 

Assumption of 10% Debentures

 

See “Agreements Related to the Spin-Off-Debenture Refinancing” above.

 

TRANSFERABILITY OF SPIN-OFF SHARES

 

Once this Form 10 registration statement becomes effective, shares distributed in connection with the Spin-Off will be available for distribution to shareholders electronically and will be transferable without registration under the Securities Act, except for shares received by persons who may be deemed to be affiliates. Persons who may be deemed to be affiliates after the distribution generally include individuals or entities that control, are controlled by or are under common control with Amergent, which may include certain executive officers, directors or principal stockholders. Securities held by affiliates will be subject to resale restrictions under the Securities Act. Affiliates will be permitted to sell shares of Amergent common stock only pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act, such as the exemption afforded by Rule 144 under the Securities Act.

 

Amergent’s common stock is not publicly traded and there is currently no public market for our common stock. We have filed a Form 211 with the Financial Industry Regulatory Authority (“FINRA”) and have applied to have our common stock authorized for quotation on the OTCQB market of the OTC Markets Group, Inc., and our applications will be processed once this Form 10 becomes effective. However, there are no assurances that our common stock will be quoted on the OTCQB or any other quotation service, exchange or trading facility. An active public market for our common stock may not develop or be sustained. If an active public market does not develop or is not sustained, it may be difficult for our stockholders to sell their shares of common stock at a price that is attractive to them, or at all. We intend to request the symbol “BURG” to be issued in connection with the initiation of quotation on the OTCQB.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE SPIN-OFF

 

The following is a discussion of certain material U.S. federal income tax consequences of the distribution of stock of subsidiary to the Parent stockholders that are U.S. holders (as defined below) following the transfer of all or substantially all of Parent’s assets and liabilities to subsidiary. The following discussion also sets forth the material U.S. federal income tax consequences to Parent resulting from the Spin-off of subsidiary to the stockholders of Parent that are U.S. holders.

 

This discussion is limited to holders who hold Parent common stock as a “capital asset” within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (“Code”) (generally, property held for investment). The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local, or non-U.S. tax laws are not discussed. This discussion is based on the Code, U.S. Treasury Regulations promulgated thereunder (“Regulations”), judicial decisions, and published rulings and administrative pronouncements of the Internal Revenue Service (the “IRS”), each as in effect as of the date of the Spin-off. These authorities are subject to differing interpretations or change. Any such change, which may or may not be retroactive, could alter the tax consequences to holders of Parent common stock as described in this information statement.

 

This discussion does not address all U.S. federal income tax consequences relevant to the particular circumstances of a Parent stockholder. In addition, it does not address consequences relevant to holders of Parent common stock that are subject to particular U.S. or non-U.S. tax rules, including, without limitation:

 

  persons who have a functional currency other than the U.S. dollar;
     
  persons holding Parent common stock as part of an integrated investment (including a “straddle,” pledge against currency risk, “constructive” sale or “conversion” transaction or other integrated or risk reduction transactions) consisting of shares of Parent common stock and one or more other positions;
     
  persons who are not U.S. holders as defined below and certain former citizens or former long-term residents of the United States;
     
  banks, insurance companies, mutual funds, tax-exempt entities, governmental organizations, financial institutions, broker-dealers, dealers in securities or currencies, traders in securities, real estate investment trusts or regulated investment companies;
     
  persons who do not hold their Parent common stock as a “capital asset” within the meaning of Section 1221 of the Code;
     
  partnerships or other entities or arrangements classified as partnerships or disregarded entities for U.S. federal income tax purposes, S corporations or other pass-through entities (including hybrid entities);
     
  persons who own (or are deemed to own) 5% or more (by vote or value) of the outstanding shares of Parent common stock;
     
  persons subject to special tax accounting rules under Section 451(b) of the Code;
     
  persons who acquired their Parent common stock pursuant to the exercise of warrants or conversion rights under convertible instruments;
     
  persons who own Parent common stock that is “section 306 stock” within the meaning of Section 306(c) of the Code; and
     
  persons who hold their Parent common stock through individual retirement accounts or other tax-deferred accounts.

 

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For purposes of this discussion, a “U.S. holder” is a beneficial owner of Parent common stock that, for U.S. federal income tax purposes, is or is treated as:

 

  an individual who is a citizen or resident of the United States;
     
  a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof, or the District of Columbia;
     
  an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
     
  a trust if either (i) a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons (within the meaning of Section 7701(a)(30) of the Code) are authorized or have the authority to control all substantial decisions of such trust, or (ii) the trust was in existence on August 20, 1996 and has a valid election in effect under applicable Regulations to be treated as a United States person for U.S. federal income tax purposes.

 

If an entity (or an arrangement) treated as a partnership for U.S. federal income tax purposes holds Parent common stock, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. If you are a partnership or a partner of a partnership holding Parent common stock or any other person excluded from this discussion, you should consult your tax advisor regarding the tax consequences of the Spin-off.

 

In addition, the following discussion does not address (i) any U.S. federal non-income tax consequences of the Spin-off, including estate, gift or other tax consequences, (ii) any state, local or non-U.S. tax consequences of the Spin-off, (iii) the tax on net investment income or the alternative minimum tax, (iv) the tax consequences of transactions effectuated before, after or at the same time as the Spin-off (whether or not they are in connection with the Spin-off), and (v) the tax consequences to holders of convertible debt or options, warrants or similar rights to purchase or acquire Parent common stock.

 

IN LIGHT OF THE FOREGOING, HOLDERS OF PARENT COMMON STOCK SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE TAX CONSEQUENCES TO THEM OF THE SPIN-OFF, INCLUDING THE APPLICABLE U.S. FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX CONSEQUENCES OR UNDER ANY APPLICABLE TAX TREATY, AND ANY TAX REPORTING REQUIREMENTS OF THE SPIN-OFF AND RELATED TRANSACTIONS IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.

 

No ruling from the IRS has been or will be requested with respect to the tax consequences of the Spin-off. Opinions of counsel do not bind the courts or the IRS, nor will they preclude the IRS from adopting a position contrary to those expressed in such opinions.

 

Tax Classification of the Spin-off in General

 

The Spin-off will not qualify for tax-free treatment under Section 355 of the Code, and will be a taxable distribution for U.S. federal income tax purposes. Parent stockholders will be treated as having received a distribution of property that does not qualify for tax-free treatment. The amount of that distribution will be equal to the fair market value of the subsidiary common stock received.

 

Tax Consequences of the Spin-off to Parent

 

To the extent that the fair market value of the common stock of the subsidiary at the time of the distribution is greater than Parent’s tax basis in the common stock of subsidiary, Parent will recognize gain. If the market value of the common stock of the subsidiary at the time of the distribution is less than Parent’s tax basis in the common stock of subsidiary, Parent will not recognize any loss. In the event that the Parent recognizes a gain on the distribution of the stock of the subsidiary, it is anticipated that the gain will be offset by net operating losses. All unused net operating losses will be retained by the Parent.

 

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Tax Consequences of the Spin-off to U.S. Holders

 

The distribution of subsidiary common stock should be treated as ordinary dividend income to the extent considered paid out of Parent’s current year or accumulated earnings and profits (as determined under U.S. federal income tax principles). Distributions in excess of both current year and accumulated earnings and profits will be treated as a non-taxable return of capital, which reduces basis, to the extent of the holder’s basis in Parent common stock and thereafter as capital gain. To the extent that any such amount is treated as a dividend, corporate U.S. holders should generally be eligible for the dividends received deduction and non-corporate U.S. holders should generally qualify for reduced rates applicable to qualified dividend income, assuming in each case, that a minimum holding period and certain other generally applicable requirements are satisfied. U.S. holders will take a tax basis in their subsidiary common stock equal to its fair market value on the date of receipt. 

 

To the extent that the distribution of the subsidiary common stock constitutes an “extraordinary dividend” with respect to a particular U.S. holder, special rules may apply. In general, a dividend constitutes an “extraordinary dividend” if the amount of the dividend exceeds 10% of that U.S. holder’s tax basis in its stock. For purposes of this calculation, only the portion of a distribution treated as a dividend, rather than the full amount of the distribution, is taken into account. If the portion (if any) of the distribution treated as a dividend constitutes an extraordinary dividend to a corporate U.S. holder that both (i) claimed a dividends-received deduction with respect to the distribution and (ii) held its Parent common stock for two years or less, such U.S. holder will reduce its tax basis in its Parent common stock (but not below zero) by an amount determined by reference to the dividends received deduction claimed. If any corporate U.S. holder’s basis would be reduced below zero as a result of these rules, any excess would be treated as capital gain. In addition, if the portion (if any) of the distribution treated as a dividend qualifies as an extraordinary dividend to a non-corporate U.S. holder who had claimed a reduced rate for qualified dividend income on the distribution, such non-corporate U.S. holder may be required to treat a portion of any loss on a subsequent sale of its Parent common stock as long-term capital loss, regardless of its actual holding period.

 

The determination as to whether or not a distribution of property is a dividend, return of capital, or capital gain is governed by Section 301(c) of the Code. Property distributions made by a corporation to its shareholders out of either current year earnings and profits or out of accumulated earnings and profits are characterized as dividends. To the extent that portion of the distribution not characterized as a dividend exceeds the shareholders basis in the stock, it will be treated as gain from the sale or exchange of the property (capital gain).

 

With regards to the taxability of the distribution, a formal earnings and profits study has not been completed. However, based on the Parent’s historical losses as well as the projected loss for 2020 exceeding the fair market value of the subsidiary common stock, it is anticipated that the Parent will not have any current nor accumulated earnings and profits. As such, the distribution is not anticipated to be treated as a taxable dividend.

 

U.S. holders should consult with their tax advisors regarding the possible applicability and effects of the extraordinary dividend provisions, including the possible availability of an election to substitute the fair market value of the Parent common stock for its tax basis for purposes of determining if the portion (if any) of the distribution treated as a dividend constitutes an extraordinary dividend. Such election will generally be available if the fair market value of the Parent common stock as of the day before the ex-dividend date is established to the satisfaction of the Secretary of the Treasury.

 

Information Reporting and Backup Withholding

 

Payments of proceeds (if any) from the distribution of subsidiary common stock to a stockholder may be subject to information reporting to the IRS and, possibly, backup withholding. Backup withholding will not apply if the stockholder furnishes both a correct taxpayer identification number and a certification that such stockholder is not subject to backup withholding, or otherwise establishes that an exemption applies. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or allowed as a credit against a U.S. holder of Parent common stock’s federal income tax liability, if any, provided the required information is timely furnished to the IRS. U.S. holders of Parent common stock should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.

 

THE DISCUSSION ABOVE IS A GENERAL SUMMARY. IT DOES NOT COVER ALL TAX MATTERS THAT MAY BE OF IMPORTANCE TO A PARTICULAR HOLDER. EACH HOLDER IS URGED TO CONSULT ITS OWN TAX ADVISOR ABOUT THE TAX CONSEQUENCES TO IT OF THE SPIN-OFF IN LIGHT OF THE HOLDER’S OWN CIRCUMSTANCES.

 

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AVAILABLE INFORMATION

 

We have filed this registration statement on Form 10 with the SEC with respect to the shares of our common stock being distributed as described herein. Statements made in this registration statement relating to any contract or other document are not necessarily complete, and you should refer to the exhibits attached to the registration statement for copies of the actual contract or document. As of the effective date of this registration statement, we will be subject to the requirements of Regulation 13(a) under the Exchange Act and will be required to file annual reports on Form 10-K, quarterly reports on Form 10-Q, and current reports on Form 8-K, and we will be required to comply with all other obligations of the Exchange Act applicable to issuers filing registration statements pursuant to Section 12(g) of the Exchange Act.

 

You may review a copy of this registration statement, including its exhibits and schedules, and other reports we will file with the SEC at the SEC’s public reference room, located at 100 F Street, NE, Washington, D.C. 20549, by calling the SEC at 1-800-SEC-0330, as well as on the Internet website maintained by the SEC at www.sec.gov.

 

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FORM 10 INFORMATION

 

ITEM 1. BUSINESS

 

Overview

 

Amergent is in the business of owning, operating and franchising fast casual dining concepts domestically and internationally.

 

We operate and franchise a system-wide total of 46 fast casual restaurants of which 35 are company-owned and included in our consolidated and combined financial statements, and 11 are owned and operated by franchisees under franchise agreements.

 

American Burger Company (“ABC”) is a fast-casual dining chain consisting of 5 locations in North Carolina and New York, known for its diverse menu featuring fresh salads, customized burgers, milk shakes, sandwiches, and beer and wine.

 

BGR: The Burger Joint (“BGR”) was acquired in March 2015 and currently consists of 8 company-owned locations in the United States and 11 franchisee-operated locations in the United States and the Middle East (2 of the franchisee-operated locations were purchased by the Company in 2018 and became company-owned locations).

 

Little Big Burger (“LBB”) was acquired in September 2015 and currently consists of 20 company-owned locations in the Portland, Oregon, Seattle, Washington, and Charlotte, North Carolina areas. Of the company-owned restaurants, 10 of those locations are operated under partnership agreements with investors we have determined we are the primary beneficiary as we control the management and operations of the stores and the partner supplies the capital to open the store in exchange for a noncontrolling interest.

 

Through the use of partnerships, the Company partners with private investors who contribute all or substantially all of the capital required to open a restaurant in return for an ownership interest in the LLC and an economic interest in the net income of the restaurant location. The Company manages the operations of the restaurant in return for a management fee and an economic interest in the net income of the restaurant location. While terms may vary by LLC, the investor generally contributes between $250,000 and $350,000 per location and is entitled to 80% of the net income of the LLC until such time as the investor recoups the initial investment and the investor return on net income changes from 80% to 50%. The Company contributes the intellectual property and management related to operating a Little Big Burger, manages the construction, opening and ongoing operations of the store in return for a 5% management fee and 20% of net income until such time as the investor recoups the initial investment and the Company return on net income changes from 20% to 50%.

 

Additionally, we utilize franchise agreements to allow third parties to franchise a restaurant, and thus, are able to utilize the intellectual property, trademark, and trade dress in return for a franchise fee. The franchise agreement provides the franchisee with a designated territory or marketing area for an initial term of 10 years, with four successive five- year renewals. An upfront fee of $40,000 is required along with a $5,000 renewal fee and continuing fees based on a percent of revenues. We recognize the upfront fee allocated to each restaurant as revenue on a straight-line basis over the restaurant’s license term, which generally begins upon the signing of the contract for area development agreements and upon the signing of a store lease for franchise agreements. The payments for these upfront fees are generally received upon contract execution. Continuing fees, which are based upon a percentage of franchisee revenues (typically 5.5%) and are not subject to any constraints, are recognized on the accrual basis as those sales occur. The payments for these continuing fees are generally made on a weekly basis.

 

Franchises must be operated in strict compliance with our operations manual, which prescribes staffing requirements, minimum months, days and hours of operation, techniques and processes for service, length and method of training personnel, working capital and inventory requirements, accounting system and other operational standards. We provide up to five days of on-site training at no charge to franchisee. Additional on-site training may be requested by franchisee and will be provided at a daily rate of $500. We have the right to approve the property lease for each new franchise. We maintain image control and may direct a franchise to remodel. We provide specifications for equipment, safety and security, subject to additional location regulations. Franchisees must utilize designated, approved suppliers or obtain pre-approval of any new supplier. Franchisees have certain prescribed marketing requirements and we may require franchisee to contribute a percentage of net sales to a regional brand development fund. Further, we may require certain of franchisee’s personnel to attend an annual conference or all franchisee’s personnel to attend refresher training, at franchisee’s sole expense.

 

Franchisees have sole control over the day-to-day operations of the franchise. The franchisee is responsible for the hiring and termination of its personnel and compliance with applicable laws. Franchisee must sell wine and beer at the store and may opt to sell other alcoholic beverages. Franchisee is responsible for obtaining all required business licenses, including liquor licenses and to carry required insurance.

 

Any improvements or new concepts developed by a franchisee (such as improvements to proprietary recipes, equipment, merchandise or software) belong to us. Our franchise agreement contains confidentiality and non-disclosure covenants and franchisee must require its personnel to execute confidentiality and non-disclosure agreements.

 

We also operate 1 Hooters full-service restaurants in the United States, and 1 location in the United Kingdom. Hooters restaurants, which are casual beach-themed establishments featuring music, sports on large flat screens, and a menu that includes seafood, sandwiches, burgers, salads, and of course, Hooters original chicken wings and the “nearly world famous” Hooters Girls. Amergent started initially as an investor in Hooters of America and, subsequently evolved into a franchisee operator. We continue to hold a minority investment in corporate owned Hooters. However, we do not currently intend to open additional Hooters restaurants and instead plan to utilize the cash flows from these two restaurants to support growth in our other fast casual brands.

 

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Restaurant Geographic Locations

 

United States

 

We currently operate ABC, BGR and LBB restaurants in the United States. ABC is in North Carolina and New York. BGR operates company restaurants in the mid-Atlantic region of the United States, as well as franchise locations across the US and internationally. LBB operates in Oregon, Washington and North Carolina. We operate Hooters restaurants in Portland, Oregon. We also operate gaming machines in Portland, Oregon under license from the Oregon Lottery Commission.

 

Europe

 

We currently own and operate one Hooters restaurant in the United Kingdom located in Nottingham, England.

 

Competition

 

The restaurant industry is extremely competitive. We compete with other restaurants on the taste, quality and price of our food offerings. Additionally, we compete with other restaurants on service, ambience, location and overall customer experience. We believe that we compete primarily with local and regional sports bars and national casual dining and quick casual establishments, and to a lesser extent with quick service restaurants in general. Many of our competitors are well-established national, regional or local chains and many have greater financial and marketing resources than we do. We also compete with other restaurant and retail establishments for site locations and restaurant employees.

 

Proprietary Rights

 

We have trademarks and trade names associated with American Burger, BGR and Little Big Burger. We believe that the trademarks, service marks and other proprietary rights that we use in our restaurants have significant value and are important to our brand-building efforts and the marketing of our restaurant concepts. Although we believe that we have sufficient rights to all of our trademarks and service marks, we may face claims of infringement that could interfere with our ability to market our restaurants and promote our brand. Any such litigation may be costly and divert resources from our business. Moreover, if we are unable to successfully defend against such claims, we may be prevented from using our trademarks or service marks in the future and may be liable for damages.

 

We also use the “Hooters” mark and certain other service marks and trademarks used in our Hooters restaurants pursuant to our franchise agreements with Hooters of America.

 

Government Regulation

 

Environmental regulation

 

We are subject to a variety of federal, state and local environmental laws and regulations. Such laws and regulations have not had a significant impact on our capital expenditures, earnings or competitive position.

 

Local regulation

 

Our locations are subject to licensing and regulation by a number of government authorities, which may include health, sanitation, safety, fire, building and other agencies in the countries, states or municipalities in which the restaurants are located. Opening sites in new areas could be delayed by license and approval processes or by more requirements of local government bodies with respect to zoning, land use and environmental factors. Our agreements with our franchisees require them to comply with all applicable federal, state and local laws and regulations.

 

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Each restaurant requires appropriate licenses from regulatory authorities allowing it to sell liquor, beer and wine, and each restaurant requires food service licenses from local health authorities. Our licenses to sell alcoholic beverages may be suspended or revoked at any time for cause, including violation by us or our employees of any law or regulation pertaining to alcoholic beverage control. We are subject to various regulations by foreign governments related to the sale of food and alcoholic beverages and to health, sanitation and fire and safety standards. Compliance with these laws and regulations may lead to increased costs and operational complexity and may increase our exposure to governmental investigations or litigation.

 

Franchise regulation

 

We must comply with regulations adopted by the Federal Trade Commission (the “FTC”) and with several state and foreign laws that regulate the offer and sale of franchises. The FTC’s Trade Regulation Rule on Franchising (“FTC Rule”) and certain state and foreign laws require that we furnish prospective franchisees with a franchise disclosure document containing information prescribed by the FTC Rule and applicable state and foreign laws and regulations. We register the disclosure document in domestic and foreign jurisdictions that require registration for the sale of franchises. Our domestic franchise disclosure document complies with FTC Rule and various state disclosure requirements, and our international disclosure documents comply with applicable requirements.

 

We also must comply with state and foreign laws that regulate some substantive aspects of the franchisor-franchisee relationship. These laws may limit a franchisor’s ability to: terminate or not renew a franchise without good cause; interfere with the right of free association among franchisees; disapprove the transfer of a franchise; discriminate among franchisees regarding charges, royalties and other fees; and place new stores near existing franchises. Bills intended to regulate certain aspects of franchise relationships have been introduced into the United States Congress on several occasions during the last decade, but none have been enacted.

 

Employment regulations

 

We are subject to state and federal employment laws that govern our relationship with our employees, such as minimum wage requirements, overtime and working conditions and citizenship requirements. Many of our employees are paid at rates which are influenced by changes in the federal and state wage regulations. Accordingly, changes in the wage regulations could increase our labor costs. The work conditions at our facilities are regulated by the Occupational Safety and Health Administration and are subject to periodic inspections by this agency. In addition, the enactment of recent legislation and resulting new government regulation relating to healthcare benefits may result in additional cost increases and other effects in the future.

 

Gaming regulations

 

We are also subject to regulations in Oregon where we operate gaming machines. Gaming operations are generally highly regulated and conducted under the permission and oversight of the state or local gaming commission, lottery or other government agencies.

 

Other regulations

 

We are subject to a variety of consumer protection and similar laws and regulations at the federal, state and local level. Failure to comply with these laws and regulations could subject us to financial and other penalties.

 

Seasonality

 

The sales of our restaurants may peak at various times throughout the year due to certain promotional events, weather and holiday related events. For example, our domestic fast casual restaurants tend to peak in the Spring, Summer and Fall months when the weather is milder. Quarterly results also may be affected by the timing of the opening of new stores and the closing of existing stores. For these reasons, results for any quarter are not necessarily indicative of the results that may be achieved for the full fiscal year.

 

Employees

 

At March 31, 2020, our locations had approximately 325 employees, including 10 in the United Kingdom, and 315 in the United States.

 

 17 

 

 

ITEM 1A. RISK FACTORS

 

We operate in a continually changing business environment in which new risk factors emerge from time to time. We can neither predict these new risk factors, nor can we assess the impact, if any, of these new risk factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those projected in any forward-looking statement. If any of these risks, or combination of risks, actually occurs, our business, financial condition and results of operations could be seriously and materially harmed, and the trading price of our common stock could decline. All forward-looking statements in this document are based on information available to us as of the date hereof, and we assume no obligations to update any such forward-looking statements.

 

Risks Related to our Company and Industry

 

We have not been profitable to date and operating losses could continue.

 

We have incurred operating losses and generated negative cash flows since our inception and have financed our operations principally through equity investments and borrowings. Future profitability is difficult to predict with certainty. Failure to achieve profitability could materially and adversely affect the value of our Company and our ability to effect additional financings. The success of the business depends on our ability to increase revenues to offset expenses. If our revenues fall short of projections or we are unable to reduce operating expenses, our business, financial condition and operating results will be materially adversely affected.

 

Our financial statements have been prepared assuming a going concern.

 

Our financial statements as of and for the year ended December 31, 2019 and as of and for the three months ended March 31, 2020 were prepared under the assumption that we will continue as a going concern for the next twelve months from the date of issuance of these financial statements. Our independent registered public accounting firm has issued a report related to our annual financial statements that includes an explanatory paragraph referring to our losses from operations and expressing substantial doubt in our ability to continue as a going concern without additional capital becoming available. Our ability to continue as a going concern is dependent upon our ability to obtain additional financing, re-negotiate or extend existing indebtedness, obtain further operating efficiencies, reduce expenditures and ultimately, create profitable operations. We may not be able to refinance or extend our debt or obtain additional capital on reasonable terms. Our financial statements do not include adjustments that would result from the outcome of this uncertainty.

 

 18 

 

 

Any prior acquisitions, as well as future acquisitions, may have unanticipated consequences that could harm our business and our financial condition.

 

Any acquisition that we pursue, whether successfully completed or not, involves risks, including:

 

  material adverse effects on our operating results, particularly in the fiscal quarters immediately following the acquisition as the acquired restaurants are integrated into our operations;
     
  risks associated with entering into markets or conducting operations where we have no or limited prior experience;
     
  problems retaining key personnel;
     
  potential impairment of tangible and intangible assets and goodwill acquired in the acquisition;
     
  potential unknown liabilities;
     
  difficulties of integration and failure to realize anticipated synergies; and
     
  disruption of our ongoing business, including diversion of management’s attention from other business concerns.

 

Future acquisitions of restaurants or other businesses, which may be accomplished through a cash purchase transaction, the issuance of our equity securities or a combination of both, could result in potentially dilutive issuances of our equity securities, the incurrence of debt and contingent liabilities and impairment charges related to goodwill and other intangible assets, any of which could harm our business and financial condition.

 

There are risks inherent in expansion of operations, including our ability to generate profits from new restaurants, find suitable sites and develop and construct locations in a timely and cost-effective way.

 

We cannot project with certainty the number of new restaurants we and our franchisees will open. Our failure to effectively develop locations in new territories would adversely affect our ability to execute our business plan by, among other things, reducing our revenues and profits and preventing us from realizing our strategy. Furthermore, we cannot assure you that our new restaurants will generate revenues or profit margins consistent with those currently operated by us.

 

The number of openings and the performance of new locations will depend on various factors, including:

 

  the availability of suitable sites for new locations;
     
  our ability to negotiate acceptable lease or purchase terms for new locations, obtain adequate financing, on favorable terms, required to construct, build-out and operate new locations and meet construction schedules, and hire and train and retain qualified restaurant managers and personnel;
     
  managing construction and development costs of new restaurants at affordable levels;
     
  the establishment of brand awareness in new markets; and
     
  the ability of our Company to manage expansion.

 

Additionally, competition for suitable restaurant sites in target markets is intense. Restaurants we open in new markets may take longer to reach expected sales and profit levels on a consistent basis and may have higher construction, occupancy or operating costs than restaurants we open in existing markets, thereby affecting our overall profitability.

 

New markets may have competitive conditions, consumer tastes and discretionary spending patterns that are more difficult to predict or satisfy than our existing markets. We may need to make greater investments than we originally planned in advertising and promotional activity in new markets to build brand awareness. We may find it more difficult in new markets to hire, motivate and keep qualified employees who share our vision, passion and culture. We may also incur higher costs from entering new markets if, for example, we assign regional managers to manage comparatively fewer restaurants than in more developed markets.

 

We may not be able to successfully develop critical market presence for our brand in new geographical markets, as we may be unable to find and secure attractive locations, build name recognition or attract new customers. Inability to fully implement or failure to successfully execute our plans to enter new markets could have a material adverse effect on our business, financial condition and results of operations.

 

Not all of these factors are within our control or the control of our partners, and there can be no assurance that we will be able to accelerate our growth or that we will be able to manage the anticipated expansion of our operations effectively.

 

 19 

 

 

We have debt financing arrangements that could have a material adverse effect on our financial health and our ability to obtain financing in the future and may impair our ability to react quickly to changes in our business.

 

Our exposure to debt financing could limit our ability to satisfy our obligations, limit our ability to operate our business and impair our competitive position. For example, it could:

 

  increase our vulnerability to adverse economic and industry conditions, including interest rate fluctuations, because a portion of our borrowings are at variable rates of interest;
     
  require us to dedicate significant future cash flows to the repayment of debt, reducing the availability of cash to fund working capital, capital expenditures or other general corporate purposes;
     
  limit our flexibility in planning for, or reacting to, changes in our business and industry; and
     
  limit our ability to obtain additional debt or equity financing due to applicable financial and restrictive covenants contained in our debt agreements.

 

We may also incur additional indebtedness in the future, which could materially increase the impact of these risks on our financial condition and results of operations. Failure to successfully recapitalize the business could have a material adverse effect on our business, financial condition and results of operations.

 

Various subsidiaries of the Company are delinquent in payment of payroll taxes to taxing authorities prior to the current year when previous management was in place, and a failure to remit these payments promptly or through settlements could have a material adverse effect on our business, financial condition and results of operations.

 

As of March 31, 2020, approximately $2.6 million of employee and employer taxes (including estimated penalties and interest) has been accrued but not remitted in years prior to 2019 to certain taxing authorities by certain subsidiaries of the Company for cash compensation paid. As a result, these subsidiaries of the Company are liable for such payroll taxes. These various subsidiaries of the Company have received warnings and demands from the taxing authorities and management is prioritizing and working with the taxing authorities to make these payments in order to avoid further penalties and interest. Failure to remit these payments promptly could result in increased penalty fees and have a material adverse effect on our business, financial condition and results of operations. Of the approximately $2.6 million of liability accrued at March 31, 2020, $81,000 has subsequently been settled. Interest and penalties on the remaining liability are accruing at approximately $3,000 per month.

 

Litigation and unfavorable publicity could negatively affect our results of operations as well as our future business.

 

We are subject to potential for litigation and other customer complaints concerning our food safety, service and/or other operational factors. Guests may file formal litigation complaints that we are required to defend, whether we believe them to be true or not. Substantial, complex or extended litigation could have an adverse effect on our results of operations if we incur substantial defense costs and our management is distracted. Employees may also, from time to time, bring lawsuits against us regarding injury, discrimination, wage and hour, and other employment issues. Additionally, potential disputes could subject us to litigation alleging non-compliance with franchise, development, support service, or other agreements. Additionally, we are subject to the risk of litigation by our stockholders as a result of factors including, but not limited to, performance of our stock price.

 

In certain states we are subject to “dram shop” statutes, which generally allow a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated person. Some dram shop litigation against restaurant companies has resulted in significant judgments, including punitive damages. We carry liquor liability coverage as part of our existing comprehensive general liability insurance, but we cannot provide assurance that this insurance will be adequate in the event we are found liable in a dram shop case.

 

In recent years there has been an increase in the use of social media platforms and similar devices that allow individuals’ access to a broad audience of consumers and other interested persons. The availability of information on social media platforms is virtually immediate in its impact. A variety of risks are associated with the use of social media, including the improper disclosure of proprietary information, negative comments about our Company, exposure of personally identifiable information, fraud or outdated information. The inappropriate use of social media platforms by our guests, employees or other individuals could increase our costs, lead to litigation, or result in negative publicity that could damage our reputation, and create an adverse change in the business climate that impairs goodwill. If we are unable to quickly and effectively respond, we may suffer declines in guest traffic, which could materially affect our financial condition and results of operations.

 

 20 

 

 

Food safety and foodborne illness concerns could have an adverse effect on our business.

 

We cannot guarantee that our internal control and training will be fully effective in preventing all food safety issues at our restaurants, including any occurrences of foodborne illnesses such as salmonella, E. coli and hepatitis A. In addition, there is no guarantee that our franchise restaurants will maintain the high levels of internal control and training we require at our company-operated restaurants.

 

Furthermore, we and our franchisees rely on third-party vendors, making it difficult to monitor food safety compliance and increasing the risk that foodborne illness would affect multiple locations rather than a single restaurant. Some foodborne illness incidents could be caused by third-party vendors and transporters outside of our control. New illnesses resistant to our current precautions may develop in the future, or diseases with long incubation periods could arise, that could give rise to claims or allegations on a retroactive basis. One or more instances of foodborne illness in any of our restaurants or markets or related to food products we sell could negatively affect our restaurant revenue nationwide if highly publicized on national media outlets or through social media.

 

This risk exists even if it were later determined that the illness was wrongly attributed to us or one of our restaurants. Several other restaurant chains have experienced incidents related to foodborne illnesses that have had a material adverse effect on their operations. The occurrence of a similar incident at one or more of our restaurants, or negative publicity or public speculation about an incident, could have a material adverse effect on our business, financial condition and results of operations.

 

We operate in the highly competitive restaurant industry. If we are not able to compete effectively, it will have a material adverse effect on our business, financial condition and results of operations.

 

We face significant competition from restaurants in the fast-casual dining and traditional fast food segments of the restaurant industry. These segments are highly competitive with respect to, among other things, taste, price, food quality and presentation, service, location and the ambience and condition of each restaurant. Our competition includes a variety of locally owned restaurants and national and regional chains offering dine-in, carry-out, delivery and catering services. Many of our competitors have existed longer and have a more established market presence with substantially greater financial, marketing, personnel and other resources than we do. Among our competitors are a number of multi-unit, multi-market, fast casual restaurant concepts, some of which are expanding nationally. As we expand, we will face competition from these restaurant concepts as well as new competitors that strive to compete with our market segments. These competitors may have, among other things, lower operating costs, better locations, better facilities, better management, more effective marketing and more efficient operations. Additionally, we face the risk that new or existing competitors will copy our business model, menu options, presentation or ambience, among other things.

 

Any inability to successfully compete with the restaurants in our markets and other restaurant segments will place downward pressure on our customer traffic and may prevent us from increasing or sustaining our revenue and profitability. Consumer tastes, nutritional and dietary trends, traffic patterns and the type, number and location of competing restaurants often affect the restaurant business, and our competitors may react more efficiently and effectively to those conditions. Several of our competitors compete by offering menu items that are specifically identified as low in carbohydrates, gluten-free or healthier for consumers. In addition, many of our traditional fast food restaurant competitors offer lower-priced menu options or meal packages or have loyalty programs. Our sales could decline due to changes in popular tastes, “fad” food regimens, such as low carbohydrate diets, and media attention on new restaurants. If we are unable to continue to compete effectively, our traffic, sales and restaurant contribution could decline which would have a material adverse effect on our business, financial condition and results of operations.

 

 21 

 

 

We do not have full operational control over the franchisee-operated restaurants.

 

We are and will be dependent on our franchisees to maintain quality, service and cleanliness standards, and their failure to do so could materially affect our brands and harm our future growth. Our franchisees have flexibility in their operations, including the ability to set prices for our products in their restaurants, hire employees and select certain service providers. In addition, it is possible that some franchisees may not operate their restaurants in accordance with our quality, service and cleanliness, health or product standards. Although we intend to take corrective measures if franchisees fail to maintain high quality service and cleanliness standards, we may not be able to identify and rectify problems with sufficient speed and, as a result, our image and operating results may be negatively affected.

 

Our business could be adversely affected by declines in discretionary spending and may be affected by changes in consumer preferences.

 

Our success depends, in part, upon the popularity of our food products. Shifts in consumer preferences away from our restaurants or cuisine could harm our business. Also, our success depends to a significant extent on discretionary consumer spending, which is influenced by general economic conditions and the availability of discretionary income. Accordingly, we may experience declines in sales during economic downturns or during periods of uncertainty. A continuing decline in the amount of discretionary spending could have a material adverse effect on our sales, results of operations, and business and financial condition.

 

Increases in costs, including food, labor and energy prices, will adversely affect our results of operations.

 

Our profitability is dependent on our ability to anticipate and react to changes in our operating costs, including food, labor, occupancy (including utilities and energy), insurance and supply costs. Various factors beyond our control, including climatic changes and government regulations, may affect food costs. Specifically, our dependence on frequent, timely deliveries of fresh meat and produce subject us to the risks of possible shortages or interruptions in supply caused by adverse weather or other conditions which could adversely affect the availability and cost of any such items. In the past, we have been able to recover some of our higher operating costs through increased menu prices. There have been, and there may be in the future, delays in implementing such menu price increases, and competitive pressures may limit our ability to recover such cost increases in their entirety.

 

Our ability to maintain consistent price and quality throughout our restaurants depends in part upon our ability to acquire specified food products and supplies in sufficient quantities from third-party vendors, suppliers and distributors at a reasonable cost. We do not control the businesses of our vendors, suppliers and distributors, and our efforts to specify and monitor the standards under which they perform may not be successful. If any of our vendors or other suppliers are unable to fulfill their obligations to our standards, or if we are unable to find replacement providers in the event of a supply or service disruption, we could encounter supply shortages and incur higher costs to secure adequate supplies, which would have a material adverse effect on our business, financial condition and results of operations.

 

Furthermore, if our current vendors or other suppliers are unable to support our expansion into new markets, or if we are unable to find vendors to meet our supply specifications or service needs as we expand, we could likewise encounter supply shortages and incur higher costs to secure adequate supplies, which could have a material adverse effect on our business, financial condition and results of operations.

 

Changes in employment laws and minimum wage standards may adversely affect our business.

 

Labor is a primary component in the cost of operating our restaurants. If we face labor shortages or increased labor costs because of increased competition for employees, higher employee turnover rates, increases in the federal, state or local minimum wage or other employee benefits costs (including costs associated with health insurance coverage), our operating expenses could increase, and our growth could be negatively impacted.

 

In addition, our success depends in part upon our ability to attract, motivate and retain enough well-qualified restaurant operators and management personnel, as well as a sufficient number of other qualified employees, including customer service and kitchen staff, to keep pace with our expansion schedule. In addition, restaurants have traditionally experienced relatively high employee turnover rates. Although we have not yet experienced significant problems in recruiting or retaining employees, our ability to recruit and retain such individuals may delay the planned openings of new restaurants or result in higher employee turnover in existing restaurants, which could have a material adverse effect on our business, financial condition and results of operations.

 

 22 

 

 

Various federal and state employment laws govern the relationship with our employees and impact operating costs. These laws include employee classification as exempt or non-exempt for overtime and other purposes, minimum wage requirements, unemployment tax rates, workers’ compensation rates, immigration status and other wage and benefit requirements. Significant additional government-imposed increases in the following areas could have a material adverse effect on our business, financial condition and results of operations:

 

  Minimum wages;
  Mandatory health benefits;
  Vacation accruals;
  Paid leaves of absence, including paid sick leave; and
  Tax reporting.

 

We could also become subject to fines, penalties and other costs related to claims that we did not fully comply with all recordkeeping obligations of federal and state immigration compliance laws. These factors could have a material adverse effect on our business, financial condition and results of operations.


 

We are subject to risks arising under federal and state labor laws.

 

We are subject to risks under federal and state labor laws, including disputes concerning whether and when a union can be organized, and once unionized, collective bargaining rights, various issues arising from union contracts, and matters relating to a labor strike. Labor laws are complex and differ vastly from state to state.

 

We are subject to the risks associated with leasing space subject to long-term non-cancelable leases.

 

We lease all the real property and we expect the new restaurants we open in the future will also be leased. We are obligated under non-cancelable leases for our restaurants and our corporate headquarters. Our restaurant leases generally require us to pay a proportionate share of real estate taxes, insurance, common area maintenance charges and other operating costs. Some restaurant leases provide for contingent rental payments based on sales thresholds, although we generally do not expect to pay significant contingent rent on these properties based on the thresholds in those leases. Additional sites that we lease are likely to be subject to similar long-term non-cancelable leases.

 

If an existing or future restaurant is not profitable, and we decide to close it, we may nonetheless be committed to perform our obligations under the applicable lease including, among other things, paying the base rent for the balance of the lease term. In addition, as each of our leases expires, we may fail to negotiate renewals, either on commercially acceptable terms or at all, which could cause us to pay increased occupancy costs or to close restaurants in desirable locations. These potential increased occupancy costs and closed restaurants could have a material adverse effect on our business, financial condition and results of operations.

 

As of March 31, 2020, there were three restaurants that the Company had abandoned and maintained its operating lease liabilities as the Company had not negotiated the termination of the underlying leases with its landlord. Such liabilities amount to approximately $2.3 million at March 31, 2020 and are reflected as operating lease liabilities on the interim consolidated and combined balance sheet included in this registration statement.

 

We are not contractually obligated to guarantee leasing arrangements between franchisees and their landlords.

 

Our business and the growth of our Company are dependent on the skills and expertise of management and key personnel.

 

During the upcoming stages of our Company’s anticipated growth, we are entirely dependent upon the management skills and expertise of our management and key personnel. We do not have employment agreements with many of our executive officers. The loss of services of our executive officers could dramatically affect our business prospects. Certain of our employees are particularly valuable to us because:

 

  they have specialized knowledge about our company and operations;
  they have specialized skills that are important to our operations; or
  they would be particularly difficult to replace.

 

If the services of any key management personnel ceased to be available to us, our growth prospects or future operating results may be adversely impacted.

 

 23 

 

 

Our food service business, gaming revenues and the restaurant industry are subject to extensive government regulation.

 

We are subject to extensive and varied country, federal, state and local government regulation, including regulations relating to public health, gambling, safety and zoning codes. We operate each of our locations in accordance with standards and procedures designed to comply with applicable codes and regulations. However, if we could not obtain or retain food or other licenses, it would adversely affect our operations. Although we have not experienced, and do not anticipate experiencing any significant difficulties, delays or failures in obtaining required licenses, permits or approvals, any such problem could delay or prevent the opening of, or adversely impact the viability of, a particular location or group of restaurants.

 

We may be subject to significant foreign currency exchange controls in certain countries in which we operate.

 

Certain foreign economies have experienced shortages in foreign currency reserves and their respective governments have adopted restrictions on the ability to transfer funds out of the country and convert local currencies into U.S. dollars. This may increase our costs and limit our ability to convert local currency into U.S. dollars and transfer funds out of certain countries. Any shortages or restrictions may impede our ability to convert these currencies into U.S. dollars and to transfer funds, including for the payment of dividends or interest or principal on our outstanding debt. If any of our subsidiaries are unable to transfer funds to us due to currency restrictions, we are responsible for any resulting shortfall.

 

Our foreign operations subject us to risks that could negatively affect our business.

 

One of our Hooters restaurants and some of our franchisee-owned restaurants operate in foreign countries and territories outside of the U.S. As a result, our business is exposed to risks inherent in foreign operations. These risks, which can vary substantially by market, include political instability, corruption, social and ethnic unrest, changes in economic conditions (including wage and commodity inflation, consumer spending and unemployment levels), the regulatory environment, tax rates and laws and consumer preferences as well as changes in the laws and policies that govern foreign investment in countries where our restaurants are operated.

 

In addition, our results of operations and the value of our foreign assets are affected by fluctuations in foreign currency exchange rates, which may adversely affect reported earnings. More specifically, an increase in the value of the United States Dollar relative to other currencies, such as the British Pound, could have an adverse effect on our reported earnings. There can be no assurance as to the future effect of any such changes on our results of operations, financial condition or cash flows.

 

We may not attain our target development goals and aggressive development could cannibalize existing sales.

 

Our growth strategy depends in large part on our ability to open new stores (either directly or through franchisees or joint venture partners). The successful development of new units will depend in large part on our ability and the ability of our franchisees to open new restaurants and to operate these restaurants on a profitable basis. We cannot guarantee that we, or our franchisees or joint venture partners, will be able to achieve our expansion goals or that new restaurants will be operated profitably. Further, there is no assurance that any new restaurant will produce operating results like those of our existing restaurants. Other risks that could impact our ability to increase our ability to open new stores include prevailing economic conditions and our, or our franchisees’ and joint venture partners’, ability to obtain suitable restaurant locations, obtain required permits and approvals in a timely manner and hire and train qualified personnel.

 

Our franchisees and joint venture partners also frequently depend upon financing from banks and other financial institutions in order to construct and open new restaurants. If it becomes more difficult or expensive for them to obtain financing to develop new restaurants, our planned growth could slow, and our future revenue and cash flows could be adversely impacted.

 

In addition, the new restaurants could impact the sales of our existing restaurants nearby. It is not our intention to open new restaurants that materially cannibalize the sales of our existing restaurants. However, as with most growing retail and restaurant operations, there can be no assurance that sales cannibalization will not occur or become more significant in the future as we increase our presence in existing markets over time.

 

 24 

 

 

Pandemics or disease outbreaks, such as the recent outbreak of the novel coronavirus (COVID-19 virus), have disrupted, and may continue to disrupt, our business, and have materially affected our operations and results of operations.

 

Pandemics or disease outbreaks such as the novel coronavirus (COVID-19 virus) have and may continue to have a negative impact on customer traffic at our restaurants, may make it more difficult to staff our restaurants and, in more severe cases, may cause a temporary inability to obtain supplies and/or increase to commodity costs and have caused closures of affected restaurants, sometimes for prolonged periods of time. We have temporarily shifted to a “to-go” only operating model, suspending sit-down dining. We have also implemented closures, modified hours or reductions in onsite staff, resulting in cancelled shifts for some of our employees. COVID-19 may also materially adversely affect our ability to implement our growth plans, including delays in construction of new restaurants, or adversely impact our overall ability to successfully execute our plans to enter into new markets. These changes have negatively impacted our results of operations, and these and any additional changes may materially adversely affect our business or results of operations in the future, and may impact our liquidity or financial condition, particularly if these changes are in place for a significant amount of time. In addition, our operations could be further disrupted if any of our employees or employees of our business partners were suspected of having contracted COVID19 or other illnesses since this could require us or our business partners to quarantine some or all such employees or close and disinfect our impacted restaurant facilities. If a significant percentage of our workforce or the workforce of our business partners are unable to work, including because of illness or travel or government restrictions in connection with pandemics or disease outbreaks, our operations may be negatively impacted, potentially materially adversely affecting our business, liquidity, financial condition or results of operations. Furthermore, such viruses may be transmitted through human contact, and the risk of contracting viruses could continue to cause employees or guests to avoid gathering in public places, which has had, and could further have, adverse effects on our restaurant guest traffic or the ability to adequately staff restaurants, in addition to the measures we have already taken with respect to shifting to a “to-go” only operating model. We could also be adversely affected if government authorities continue to impose restrictions on public gatherings, human interactions, operations of restaurants or mandatory closures, seek voluntary closures, restrict hours of operations or impose curfews, restrict the import or export of products or if suppliers issue mass recalls of products. Additional regulation or requirements with respect to the compensation of our employees could also have an adverse effect on our business. Even if such measures are not implemented and a virus or other disease does not spread significantly within a specific area, the perceived risk of infection or health risk in such area may adversely affect our business, liquidity, financial condition and results of operations. The COVID-19 pandemic and mitigation measures have also had an adverse impact on global economic conditions, which could have an adverse effect on our business and financial condition. Our revenue and operating results may be affected by uncertain or changing economic and market conditions arising in connection with and in response to the COVID-19 pandemic, including prolonged periods of high unemployment, inflation, deflation, prolonged weak consumer demand, a decrease in consumer discretionary spending, political instability or other changes. The significance of the operational and financial impact to us will depend on how long and widespread the disruptions caused by COVID-19, and the corresponding response to contain the virus and treat those affected by it, prove to be. Currently, many states and municipalities in the U.S. and abroad have temporarily suspended the operation of restaurants in light of COVID-19. The ability of local and international authorities in containing COVID-19 and limiting the spread of infections will impact our business operations. While some state and local governments in the U.S. have started to remove or ease restrictions on certain businesses, including restaurants, there is no guarantee when other jurisdictions will change their current policies, and jurisdictions that have reduced restrictions may reintroduce restrictions in the future if circumstances change.

 

Changing conditions in the global economy and financial markets may materially adversely affect our business, results of operations and ability to raise capital.

 

Our business and results of operations may be materially affected by conditions in the financial markets and the economy generally. The demand for our products could be adversely affected in an economic downturn and our revenues may decline under such circumstances. In addition, we may find it difficult, or we may not be able, to access the credit or equity markets, or we may experience higher funding costs in the event of adverse market conditions. Future instability in these markets could limit our ability to access the capital we require to fund and grow our business.

 

We have identified material weaknesses in our internal control and procedures and internal control over financial reporting. If not remediated, our failure to establish and maintain effective disclosure controls and procedures and internal control over financial reporting could result in material misstatements in our financial statements and a failure to meet our reporting and financial obligations, each of which could have a material adverse effect on our financial condition and the trading price of our common stock.

 

Maintaining effective internal control over financial reporting and effective disclosure controls and procedures are necessary for us to produce reliable financial statements. We have re-evaluated our internal control over financial reporting and our disclosure controls and procedures and concluded that they were not effective as of March 31, 2020 and we concluded there was a material weakness in the design of our internal control over financial reporting.

 

A material weakness is defined as a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

 

The material weakness that we identified related to our financial close process including maintaining a sufficient compliment of personnel commensurate with our accounting and financial reporting requirements as well as development and extension of controls over the recording of journal entries and proper cut-off of accounts payable and accrued expenses at period end.

 

The Company is committed to remediating its material weaknesses as promptly as possible. Implementation of the Company’s remediation plans has commenced and is being overseen by the audit committee. As part of its remediation efforts, the Company hired a person with technical accounting experience in June 2020. Further, the Company is in the process of designing and implementing procedures for control over the segregation of duties for the preparation of, approval and recording of journal entries and procedure to obtain the proper cut-off of accounts payable and accrued expenses in a period. However, there can be no assurance as to when these material weaknesses will be remediated or that additional material weaknesses will not arise in the future. Even effective internal control can provide only reasonable assurance with respect to the preparation and fair presentation of financial statements. Any failure to remediate the material weaknesses, or the development of new material weaknesses in our internal control over financial reporting, could result in material misstatements in our financial statements, which in turn could have a material adverse effect on our financial condition and the trading price of our common stock and we could fail to meet our financial reporting obligations.

 

Changes to accounting rules or regulations may adversely affect the reporting of our results of operations.

 

Changes to existing accounting rules or regulations may impact the reporting of our future results of operations or cause the perception that we are more highly leveraged. Other new accounting rules or regulations and varying interpretations of existing accounting rules or regulations have occurred and may occur in the future. For instance, new accounting rules will require lessees to capitalize operating leases in their financial statements in future periods which will require us to record significant right of use assets and lease obligations on our balance sheet. This and other future changes to accounting rules or regulations could have a material adverse effect on the reporting of our business, financial condition and results of operations. In addition, many existing accounting standards require management to make subjective assumptions, such as those required for stock compensation, tax matters, franchise accounting, acquisitions, litigation, and asset impairment calculations. Changes in accounting standards or changes in underlying assumptions, estimates and judgments by our management could significantly change our reported or expected financial performance.

 

 25 

 

 

We may not be able to adequately protect our intellectual property, which could harm the value of our brand and have a material adverse effect on our business, financial condition and results of operations.

 

Our intellectual property is material to the conduct of our business. Our ability to implement our business plan successfully depends in part on our ability to further build brand recognition using our trademarks, tradenames and other proprietary intellectual property, including our name and logos and the unique ambience of our restaurants. While it is our policy to protect and defend vigorously our rights to our intellectual property, we cannot predict whether steps taken by us to protect our intellectual property rights will be adequate to prevent misappropriation of these rights or the use by others of restaurant features based upon, or otherwise similar to, our restaurant concept. It may be difficult for us to prevent others from copying elements of our concept and any litigation to enforce our rights will likely be costly and may not be successful. Although we believe that we have sufficient rights to all our trademarks and service marks, we may face claims of infringement that could interfere with our ability to market our restaurants and promote our brand. Any such litigation may be costly and could divert resources from our business. Moreover, if we are unable to successfully defend against such claims, we may be prevented from using our trademarks or service marks in the future and may be liable for damages, which in turn could have a material adverse effect on our business, financial condition and results of operations.

 

In addition, we license certain of our proprietary intellectual property, including our name and logos, to third parties. For example, we grant our franchisees and licensees a right to use certain of our trademarks in connection with their operation of the applicable restaurant. If a franchisee or other licensee fails to maintain the quality of the restaurant operations associated with the licensed trademarks, our rights to, and the value of, our trademarks could potentially be harmed. Negative publicity relating to the franchisee or licensee could also be incorrectly associated with us, which could harm our business. Failure to maintain, control and protect our trademarks and other proprietary intellectual property would likely have a material adverse effect on our business, financial condition and results of operations and on our ability to enter into new franchise agreements.

 

We may incur costs resulting from breaches of security of confidential consumer information related to our electronic processing of credit and debit card transactions.

 

Most of our restaurant sales are by credit or debit cards. Other restaurants and retailers have experienced security breaches in which credit and debit card information has been stolen. We may in the future become subject to claims for purportedly fraudulent transactions arising out of the actual or alleged theft of credit or debit card information, and we may also be subject to lawsuits or other proceedings relating to these types of incidents. In addition, most states have enacted legislation requiring notification of security breaches involving personal information, including credit and debit card information. Any such claim or proceeding could cause us to incur significant unplanned expenses, which could have a material adverse effect on our business, financial condition and results of operations. Further, adverse publicity resulting from these allegations may have a material adverse effect on our business and results of operations.

 

We rely heavily on information technology, and any material failure, weakness, interruption or breach of security could prevent us from effectively operating our business.

 

We rely heavily on information systems, including point-of-sale processing in our restaurants, for management of our supply chain, payment of obligations, collection of cash, credit and debit card transactions and other processes and procedures. Our ability to efficiently and effectively manage our business depends significantly on the reliability and capacity of these systems. Our operations depend upon our ability to protect our computer equipment and systems against damage from physical theft, fire, power loss, telecommunications failure or other catastrophic events, as well as from internal and external security breaches, viruses and other disruptive problems. The failure of these systems to operate effectively, maintenance problems, upgrading or transitioning to new platforms, or a breach in security of these systems could result in delays in customer service and reduce efficiency in our operations. Remediation of such problems could result in significant, unplanned capital investments.

 

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Adverse weather conditions could affect our sales.

 

Adverse weather conditions, such as regional winter storms, floods, severe thunderstorms and hurricanes, could affect our sales at restaurants in locations that experience these weather conditions, which could materially adversely affect our business, financial condition or results of operations.

 

The uncertainty surrounding the effect of Brexit may impact our UK operations.

 

The uncertainty surrounding the effect of Brexit, including the uncertainty in relation to the legal and regulatory framework for the UK and its relationship with the remaining members of the EU (including, in relation to trade) after Brexit was effected in January 2020, has caused increased economic volatility and market uncertainty globally. It is too early to ascertain the long-term effects.

 

Negative publicity could reduce sales at some or all our restaurants.

 

We may, from time to time, be faced with negative publicity relating to food quality and integrity, the safety, sanitation and welfare of our restaurant facilities, customer complaints, labor issues, or litigation alleging illness or injury, health inspection scores, integrity of our or our suppliers’ food processing and other policies, practices and procedures, employee relationships and welfare or other matters at one or more of our restaurants. Negative publicity may adversely affect us, regardless of whether the allegations are valid or whether we are held to be responsible. The risk of negative publicity is particularly great with respect to our franchised restaurants because we are limited in the manner in which we can regulate them, especially on a real-time basis and negative publicity from our franchised restaurants may also significantly impact company-operated restaurants. A similar risk exists with respect to food service businesses unrelated to us, if customers mistakenly associate such unrelated businesses with our operations. Employee claims against us based on, among other things, wage and hour violations, discrimination, harassment or wrongful termination may also create not only legal and financial liability but negative publicity that could adversely affect us and divert our financial and management resources that would otherwise be used to benefit the future performance of our operations. These types of employee claims could also be asserted against us, on a co-employer theory, by employees of our franchisees. A significant increase in the number of these claims or an increase in the number of successful claims could materially adversely affect our business, financial condition, results of operations and cash flows.

 

The interests of our franchisees may conflict with ours or yours in the future and we could face liability from our franchisees or related to our relationship with our franchisees.

 

Franchisees, as independent business operators, may from time to time disagree with us and our strategies regarding the business or our interpretation of our respective rights and obligations under the franchise agreement and the terms and conditions of the franchisee/franchisor relationship or have interests adverse to ours. This may lead to disputes with our franchisees and we expect such disputes to occur from time to time in the future as we continue to offer franchises. Such disputes may result in legal action against us. To the extent we have such disputes, the attention, time and financial resources of our management and our franchisees will be diverted from our restaurants, which could have a material adverse effect on our business, financial condition, results of operations and cash flows even if we have a successful outcome in the dispute.

 

In addition, various state and federal laws govern our relationship with our franchisees and our potential sale of a franchise. A franchisee and/or a government agency may bring legal action against us based on the franchisee/franchisor relationships that could result in the award of damages to franchisees and/or the imposition of fines or other penalties against us.

 

Risks Relating to the Spin-Off

 

We may not realize the potential benefits from the Spin-Off.

 

We may not realize the potential benefits that we expect from our Spin-Off from Chanticleer. We have described those anticipated benefits elsewhere in Form 10. See “The Spin-Off–Reasons for the Spin-Off.” We will incur additional ongoing costs related to the transition to becoming an independent public company, which may exceed our estimates, and we will likely incur some negative effects from our separation from our Parent.

 

 27 

 

 

The Spin-Off does not qualify as a tax-free transaction, and therefore you and our Parent could be subject to material amounts of taxes.

 

The distribution of our shares by our Parent pursuant to this Form 10 does not qualify as a tax-free spin-off to our Parent’s shareholders under Section 355 of the Code. As a consequence, you could be subject to material amounts of taxes. Each U.S. holder of our Parent’s common stock who received our common stock in the Spin-Off will generally be treated as receiving a taxable distribution of property in an amount equal to the fair market value of our common stock received. That distribution will be taxable to each such shareholder as a dividend to the extent of such shareholder’s share of our Parent’s current and accumulated earnings and profits. For each such shareholder, any amount that exceeded its share of our Parent’s earnings and profits will be treated first as a non-taxable return of capital to the extent of such shareholder’s tax basis in his or her or its Parent common stock with any remaining amount being taxed as a capital gain. Our Parent will be subject to tax as if it had sold common stock in a taxable sale for their fair market value and would recognize taxable gain in an amount equal to the excess of the fair market value of such shares over its tax basis in such shares.

 

The Spin-Off could give rise to disputes or other unfavorable effects, which could have a material adverse effect on our business, financial position and results of operations. 

 

Disputes with third parties could arise out of the distribution, and we could experience unfavorable reactions to the distribution from employees, investors, or other interested parties. These disputes and reactions of third parties could have a material adverse effect on our business, financial position, and results of operations. In addition, following the Spin-Off, disputes between us and Sonnet could arise in connection with any of the Indemnification Agreement or other agreements between the parties. 

 

Our potential indemnification obligations pursuant to the Indemnification Agreement could materially adversely affect us. 

 

Under the Indemnification Agreement we have an obligation to indemnify Sonnet for liabilities associated with our business and the assets and liabilities distributed to us or our subsidiaries in connection with the Spin-Off.  We have obtained a Tail Policy with policy limits in the amount of $3,000,000 to cover such liabilities; however, if we have to indemnify our Parent for unanticipated liabilities in excess of this amount, the cost of such indemnification obligations may have a material and adverse effect on our financial performance.

 

A court could deem the Spin-Off to be a fraudulent conveyance and void the transaction or impose substantial liabilities upon us. 

 

If the transaction is challenged by a third party, a court could deem the distribution by our Parent of our common stock or certain internal restructuring transactions undertaken by us in connection with the Spin-off to be a fraudulent conveyance or transfer. Fraudulent conveyances or transfers are defined to include transfers made or obligations incurred with the actual intent to hinder, delay or defraud current or future creditors or transfers made or obligations incurred for less than reasonably equivalent value when the debtor was insolvent, or that rendered the debtor insolvent, inadequately capitalized or unable to pay its debts as they become due. In such circumstances, a court could void the transactions or impose substantial liabilities upon us, which could adversely affect our financial condition and our results of operations. Among other things, the court could require our stockholders to return to us some or all of the shares of our common stock issued in the Spin-off or require us to fund liabilities of other companies involved in the restructuring transactions for the benefit of creditors. 

 

Our suppliers, vendors or other companies with whom we conduct business may need assurances that our financial stability on a stand-alone basis is sufficient to satisfy their requirements for doing or continuing to do business with them. 

 

Some of our suppliers, vendors or other companies with whom we conduct business may need assurances that the Company’s financial stability on a stand-alone basis is sufficient to satisfy their requirements for doing or continuing to do business with them. Any failure of parties to be satisfied with our financial stability could have an adverse effect on our business, financial condition, results of operations and cash flows.

 

 28 

 

 

Our 10% Secured Debentures in favor of Oz Rey, LLC (“Oz Rey”) contains financial and other covenants that, if breached, could trigger default.

 

Pursuant to our 10% Secured Debentures dated April 1, 2020 in favor of Oz Rey, we are required to:

 

·maintain a positive EBITDA
·timely file all reports required by Section 12(g) or Section 15(d) of the Exchange Act
·maintain positive net earnings;
·maintain a minimum market capitalization (based upon the number of shares of common stock outstanding and a 30-day VWAP) of at least $5,500,000
·use commercially reasonable efforts to list the common stock on a Nasdaq Stock Market exchange;
·cause the common stock to trade on the OTCQX or the OTCQB as soon as is practicable following the Closing and in any event, cause such listing to occur within 90 days of the closing.

 

Any breach that is not waived by Oz Rey could trigger default.

 

Oz Rey beneficially owns approximately 75% of our common stock and has right to appoint two directors to our board. Although Oz Rey does not currently hold any of our outstanding common stock, Oz Rey may greatly influence the outcome of all matters on which stockholders vote.

 

Because Oz Rey beneficially owns approximately 75%* of our common stock (based on shares underlying convertible 10% debenture and currently exercisable warrants), it may greatly influence the outcome of all matters on which stockholders vote. Oz Rey also has the right to appoint two directors to our board, which right Oz Rey has not yet exercised. As a result, Oz Rey is able to affect the outcome of, or exert significant influence over, all matters requiring stockholder approval, including the election and removal of directors and any change in control. This concentration of ownership of our common stock could have the effect of delaying or preventing a change of control of us or otherwise discouraging or preventing a potential acquirer from attempting to obtain control of us. This, in turn, could have a negative effect on the market price of our common stock. It could also prevent our stockholders from realizing a premium over the market prices for their shares of common stock. Moreover, the interests of this concentration of ownership may not always coincide with our interests or the interests of other stockholders, and accordingly, they could cause us to enter into transactions or agreements that we would not otherwise consider. (Beneficial ownership is calculated pursuant to Section 13d-3 of the Securities Exchange Act of 1934, as amended, and includes shares underlying derivative securities which may be exercised or converted within 60 days.)

 

*Oz Rey’s beneficial ownership will be limited to 19.9% of the shares of common stock outstanding on the original issue date if required to avoid a requirement from any trading market or exchange upon which Amergent’s common stock becomes traded or listed to receive shareholder approval of the transaction. The parties are currently in negotiations to address further limitations of beneficial ownership, but there can be no assurances negotiations will result in material changes to this provision.

 

Oz Rey’s interests may not always coincide with the interests of other holders of our common stock.

 

Oz Rey is a secured creditor of Amergent, holding a first priority secured note with a principal balance of $4,037,889, guaranteed by all of our subsidiaries. Oz Rey’s security interest is subordinate only to certain interests of holders of our Series 2 Preferred stock and guaranteed by all Amergent’s subsidiaries. As such, Oz Rey’s interests may not always coincide with the interests of other holders of Reed’s common stock.

 

The 10% debenture has been recorded as a liability and all outstanding warrants issued in the Debenture Refinancing transaction to purchase up to 2,925,000 shares of common stock will be recorded as liabilities as the Company does not have sufficient shares to satisfy the conversion.

 

If the authorized shares are not increased sufficiently to cover shares issuable upon conversion of the debenture and exercise of the warrants and a conversion floor established, the result could be these securities and others being recorded as liabilities in our financial statements which could negatively impacting our financial statements.

 

We have insufficient authorized shares to cover conversion in full of Oz Rey’s 10% debenture in the principal amount of $4,037,889, which deficiency may trigger defaults in our financing documents.

 

We must seek shareholder approval to increase our authorized common stock to satisfy contractual requirements to Oz Rey and holders of our Series 2 Preferred. The conversion feature of the debenture will be accounted for as a derivative in the consolidated financial statements due to the authorized share deficiency and until the share deficiency is resolved, and the change in estimated fair value will be recorded in the consolidated statement of operations. If the we are not able to negotiate an amendment to the 10% debenture limiting its convertibility and our shareholders do not approve a requested increase the Company of its authorized shares, Oz Rey and holders of our Series 2 Preferred could declare defaults under their respective financing documents at any time. Under the Certificate of Designations of Series 2 Preferred, the holder has the right to require the Company to redeem all outstanding shares of Series 2 Preferred at the 125% of the stated value of $1,000 per share. (Currently there are 787 shares of Series 2 Preferred- redemption amount would be equal to $983,750). Further, in the event Oz Rey declares a default under the 10% debenture, Oz Rey will have the right to accelerate the note and foreclose on all company assets (excluding segregated account held for benefit of the Series 2 Preferred holders).

 

Transactions involving our common stock engaged by significant stockholders may have an adverse effect on the price of our stock.

 

The holders of our Series 2 Preferred contractually have a beneficial ownership limitation, as a group, together with their affiliates, of 9.99%. However, they hold registration rights for the shares underlying the Series 2 Preferred. The beneficial ownership limitation is not designed to inhibit sales of the underlying common stock. Oz Rey also holds registration rights for shares of common stock underlying 10% debentures and warrants. Sales of our shares by these stockholders could have the effect of lowering our stock price. The perceived risk associated with the possible sale of a large number of shares by these stockholders, or the adoption of significant short positions by hedge funds or other significant investors, could cause some of our stockholders to sell their stock, thus causing the price of our stock to decline. In addition, actual or anticipated downward pressure on our stock price due to actual or anticipated sales of stock could cause other institutions or individuals to engage in short sales of our common stock, which may further cause the price of our stock to decline.

  

Risks Related to Our Common Stock

 

Following the quotation of our shares, we expect there will be limited trading volume, which could result in higher price volatility for, and reduced liquidity of, our common stock.

 

Although we anticipate having our shares of common stock quoted on the OTCQB Market of the OTC Markets Group, we expect the trading volume in our common stock to be limited and an active trading market for our shares of common stock may never develop or be maintained. The absence of an active trading market could increase price volatility and reduces the liquidity of our common stock and as a result, the sale of a significant number of shares of common stock at any particular time could be difficult to achieve at the market prices prevailing immediately before such shares are offered.

 

We cannot assure you that the common stock will become liquid or that it will be listed on a securities exchange.

 

We cannot assure you that we will ever be able to meet the initial listing standards of any stock exchange, or that we will be able to maintain any such listing. Until the common stock is listed on an exchange, we expect that it would be eligible to be quoted on the OTC Markets (including OTCQB), another over-the-counter quotation system, or in the “pink sheets.” In those venues, however, an investor may find it difficult to obtain accurate quotations as to the market value of the common stock. In addition, if we failed to meet the criteria set forth in SEC regulations, various requirements would be imposed by law on broker-dealers who sell our securities to persons other than established customers and accredited investors. Consequently, such regulations may deter broker-dealers from recommending or selling the common stock, which may further affect its liquidity. This would also make it more difficult for us to raise additional capital.

 

We may need additional capital in the future; however, such capital may not be available to us on reasonable terms, if at all, when or as we require additional funding. If we issue additional shares of our common stock or other securities that may be convertible into, or exercisable or exchangeable for, our common stock, our existing stockholders would experience further dilution. 

 

We may need additional capital in the future, however if that need arises, we cannot be certain additional capital will be available to us on acceptable terms when required, or at all. Disruptions in the global equity and credit markets may limit our ability to access capital. To the extent that we raise additional funds by issuing equity securities, our shareholders would experience dilution, which may be significant and could cause the market price of our common stock to decline significantly. Any debt financing, if available, may restrict our operations. If we are unable to raise additional capital when required or on acceptable terms, we may have to significantly delay, scale back or discontinue certain operations. Any of these events could significantly harm our business and prospects and could cause our stock price to decline. 

 

Future financings could adversely affect common stock ownership interest and rights in comparison with those of other security holders.

 

Our board of directors has the power to issue additional shares of common or preferred stock up to the amounts authorized in our certificate of incorporation without stockholder approval, subject to restrictive covenants contained in our existing financing agreements. If additional funds are raised through the issuance of equity or convertible debt securities, the percentage ownership of our existing stockholders will be reduced, and these newly issued securities may have rights, preferences or privileges senior to those of existing stockholders. If we issue any additional common stock or securities convertible into common stock, such issuance will reduce the proportionate ownership and voting power of each other stockholder. In addition, such stock issuances might result in a reduction of the book value of our common stock. Any increase of the number of authorized shares of common stock or preferred stock would require board and shareholder approval and subsequent amendment to our certificate of incorporation.

 

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If and when a larger trading market for our common stock develops, the market price of our common stock is likely to be highly volatile and subject to wide fluctuations, and you may be unable to resell your shares at or above the price at which you acquired them.

 

The market price of our common stock is likely to be highly volatile and could be subject to wide fluctuations in response to a number of factors that are beyond our control, including, but not limited to:

 

  quarterly variations in our revenues and operating expenses;
     
  developments in the financial markets and worldwide or regional economies;
     
  announcements of innovations or new products, solutions or services by us or our competitors;
     
  announcements by the government relating to regulations that govern our industry;
     
  significant sales of our common stock or other securities in the open market;
     
  variations in interest rates;
     
  changes in the market valuations of other comparable companies; and
     
  changes in accounting principles.

 

In the past, stockholders have often instituted securities class action litigation after periods of volatility in the market price of a company’s securities. If a stockholder were to file any such class action suit against us, we would incur substantial legal fees and our management’s attention and resources would be diverted from operating our business to respond to the litigation, which could harm our business.

 

Recent and future sales of securities by us in equity or debt financings could result in substantial dilution to our existing stockholders and have a material adverse effect on our earnings.

 

Recent and future sales of common stock or derivative securities by us in private placements or public offerings could result in substantial dilution to our existing stockholders. In addition, our business strategy may include expansion through internal growth by acquiring complementary businesses. In order to do so, or to finance the cost of our other activities, we may issue additional equity securities that could dilute our stockholders’ stock ownership. We may also assume additional debt and incur impairment losses related to goodwill and other tangible assets if we acquire another company and this could negatively impact our earnings and results of operations.

 

Were our common stock to be considered penny stock, and therefore subject to the penny stock rules, U.S. broker-dealers may be discouraged from effecting transactions in shares of our common stock.

 

The U.S. Securities and Exchange Commission (the “SEC”) has adopted a number of rules to regulate “penny stock” that may restrict transactions involving shares of our common stock. Such rules include Rules 3a51-1, 15g-1, 15g-2, 15g-3, 15g-4, 15g-5, 15g-6, 15g-7, and 15g-9 under the Securities and Exchange Act of 1934, as amended. These rules may have the effect of reducing the liquidity of penny stocks. “Penny stocks” generally are equity securities with a price of less than $5.00 per share (other than securities registered on certain national securities exchanges or quoted on the NASDAQ Stock Market if current price and volume information with respect to transactions in such securities is provided by the exchange or system). Our securities have in the past constituted “penny stock” within the meaning of the rule. Were our common stock to again be considered “penny stock” and therefore become subject to the penny stock rules, the additional sales practice and disclosure requirements imposed upon U.S. broker-dealers may discourage such broker-dealers from effecting transactions in shares of our common stock, which could severely limit the market liquidity of such shares and impede their sale in the secondary market.

 

A U.S. broker-dealer selling a penny stock to anyone other than an established customer or “accredited investor” (generally, an individual with net worth in excess of $1,000,000 or an annual income exceeding $200,000, or $300,000 together with his or her spouse) must make a special suitability determination for the purchaser and must receive the purchaser’s written consent to the transaction prior to sale, unless the broker-dealer or the transaction is otherwise exempt. In addition, the penny stock regulations require the U.S. broker-dealer to deliver, prior to any transaction involving a penny stock, a disclosure schedule prepared in accordance with SEC standards relating to the penny stock market, unless the broker-dealer or the transaction is otherwise exempt. A U.S. broker-dealer is also required to disclose commissions payable to the U.S. broker-dealer and the registered representative and current quotations for the securities. Finally, a U.S. broker-dealer is required to submit monthly statements disclosing recent price information with respect to the penny stock held in a customer’s account and information with respect to the limited market in penny stocks.

 

Stockholders should be aware that, according to SEC, the market for penny stocks has suffered in recent years from patterns of fraud and abuse. Such patterns include (i) control of the market for the security by one or a few broker-dealers that are often related to the promoter or issuer; (ii) manipulation of prices through prearranged matching of purchases and sales and false and misleading press releases; (iii) “boiler room” practices involving high-pressure sales tactics and unrealistic price projections by inexperienced sales persons; (iv) excessive and undisclosed bid-ask differentials and markups by selling broker-dealers; and (v) the wholesale dumping of the same securities by promoters and broker-dealers after prices have been manipulated to a desired level, resulting in investor losses. Our management is aware of the abuses that have occurred historically in the penny stock market. Although we do not expect to be in a position to dictate the behavior of the market or of broker-dealers who participate in the market, management will strive within the confines of practical limitations to prevent the described patterns from being established with respect to our securities in the event our common stock were to again be considered a penny stock and therefore become subject to penny stock rules.

 

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We do not expect to pay dividends for the foreseeable future, and any return on investment may be limited to potential future appreciation on the value of our common stock.

 

We currently intend to retain any future earnings to support the development and expansion of our business and do not anticipate paying cash dividends in the foreseeable future. We do not pay dividends on our Series 2 Preferred stock. If dividends are declared on common stock, dividends are payable on our outstanding 10% debenture and all of our outstanding warrants to the same extent that the holders would have participated in the dividend if the holders held the number of shares of common stock acquirable upon complete conversion of the debenture and/ or exercise of the warrants (as applicable) without regard to any limitations on exercise thereof, immediately before the date of which a record is taken for such dividend. Our payment of any future dividends will be at the discretion of our board of directors after taking into account various factors, including without limitation, our financial condition, operating results, cash needs, growth plans and the terms of any credit agreements that we may be a party to at the time. To the extent we do not pay dividends, our stock may be less valuable because a return on investment will only occur if and to the extent our stock price appreciates, which may never occur. In addition, investors must rely on sales of their common stock after price appreciation as the only way to realize their investment, and if the price of our stock does not appreciate, then there will be no return on investment. Investors seeking cash dividends should not purchase our common stock.

 

The rights of the holders of common stock may be impaired by outstanding class of Series 2 Preferred stock and potential issuance of other class(es) of preferred stock in the future.

 

Our certificate of incorporation gives our board of directors the right to create new series of preferred stock. As a result, the board of directors may, without stockholder approval, issue preferred stock with voting, dividend, conversion, liquidation or other rights which could adversely affect the voting power and equity interest of the holders of common stock. Preferred stock, which could be issued with the right to more than one vote per share, could be utilized as a method of discouraging, delaying or preventing a change of control. The possible impact on takeover attempts could adversely affect the price of our common stock. Although we have no present intention to issue any additional shares of preferred stock or to create any new series of preferred stock, we may issue such shares in the future.

 

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Anti-takeover provisions may limit the ability of another party to acquire us, which could cause our stock price to decline.

 

We are a Delaware corporation. Delaware law contains provisions that could discourage, delay or prevent a third party from acquiring us, even if doing so may be beneficial to our stockholders, which could cause our stock price to decline. In addition, these provisions could limit the price investors would be willing to pay in the future for shares of our common stock.

 

Non-U.S. investors may have difficulty effecting service of process against us or enforcing judgments against us in courts of non-U.S. jurisdictions.

 

We are a company incorporated under the laws of the State of Delaware. All of our directors and officers reside in the United States. It may not be possible for non-U.S. investors to effect service of process within their own jurisdictions upon our company and our directors and officers. In addition, it may not be possible for non-U.S. investors to collect from our company, its directors and officers, judgments obtained in courts in such non-U.S. jurisdictions predicated on non-U.S. legislation.

 

If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our stock adversely, our stock price and trading volume could decline.

 

The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If any of the analysts who may cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.

 

ITEM 2. FINANCIAL INFORMATION

 

For financial reports, please see Item 13 and the exhibits index below and corresponding exhibits, which are incorporated herein by reference.

 

CAPITALIZATION

 

The following table sets forth our capitalization as of March 31, 2020. The information below reflects what our capitalization would have been had the separation, distribution and related transactions been completed as of March 31, 2020. In addition, it is not indicative of our future capitalization. This table should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and our historical and pro forma financial statements and notes thereto included in Item 13. 

 

   Actual   Pro Forma 
    (unaudited)    (unaudited) 
Cash and restricted cash  $548,930   $3,619,279 
Debt and Redeemable Preferred Series 1  $7,066,514   $3,499,136 
Derivative liabilities   826,000    14,177,000 
    7,892,514    17,676,136 

Convertible Preferred Series 2: $1,000 stated value; 787 authorized and issued and outstanding (Actual and Pro Forma)

  $459,608   $459,608 
           
Shareholders’ deficit:          
Common stock: $0.0001 par value, authorized 50,000,000 shares; issued and outstanding 14,282,736 shares (Actual and Pro Forma)   1,434    1,434 
Additional paid-in capital   73,470,624    80,282,479 
Accumulated deficit   (77,343,539)   (89,489,650)
Accumulated other comprehensive loss   (127,506)   (127,506)
Total Amergent Hospitality Group Inc. shareholders’ deficit   (3,998,987)   (9,333,243)
Non-controlling interests   584,824    584,824 
Total shareholders’ deficit   (3,414,163)   (8,748,419)
Total debt and redeemable shares, derivative liabilities, convertible preferred and shareholders’ deficit  $4,937,959  $9,387,325

 

The unaudited pro forma financial data gives effect to (i) receipt of the merger consideration, (ii) restructuring of the 8% non-convertible secured debentures, and (iii) the use of a portion of the merger consideration to repay other debt, redeem preferred stock and to pay certain transaction costs. See Notes to the Unaudited Pro Forma Condensed Consolidated and Combined Financial Statements for further discussion of the pro forma adjustments.

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

You should read the following discussion of our results of operations and financial condition together with our audited consolidated and combined financial statements as of and for the year ended December 31, 2019 including the notes thereto, included in this Form 10. The discussion below contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described in Item 1A. “Risk Factors”. Actual results may differ materially from those contained in any forward-looking statements. Forward-looking statements speak only as of the date they are made. We undertake no obligation to update or revise such statements to reflect new circumstances or unanticipated events as they occur, and you are urged to review and consider disclosures that we make in this and other reports that discuss factors germane to our business.

 

Overview

 

As of and for the period ended March 31, 2020, we operated and franchised a system-wide total of 46 fast casual restaurants, of which 35 were company-owned, and included in our consolidated and combined financial statements and 11 were owned and operated by franchisees under franchise agreements.

 

American Burger Company (“ABC”) is a fast-casual dining chain consisting of 5 locations in North Carolina and New York, known for its diverse menu featuring fresh salads, customized burgers, milk shakes, sandwiches, and beer and wine.

 

BGR: The Burger Joint (“BGR”) was acquired in March 2015 and currently consists of 8 company-owned locations in the United States and 11 franchisee-operated locations in the United States and the Middle East (2 of the franchisee-operated locations were purchased by the Company in 2018 and became company-owned locations).

 

Little Big Burger (“LBB”) was acquired in September 2015 and currently consists of 20 company-owned locations in the Portland, Oregon, Seattle, Washington, and Charlotte, North Carolina areas. Of the company-owned restaurants, 10 of those locations are operated under partnership agreements with investors where we controlled the management and operations of the stores and the partner supplied the capital to open the store in exchange for a noncontrolling interest. The terms of these partnership agreements are more fully described in Item 1 of this Form 10.

 

We also operated 1 Hooters full-service restaurants in the United States, and 1 location in the United Kingdom. Hooters restaurants, which are casual beach-themed establishments featuring music, sports on large flat screens, and a menu that includes seafood, sandwiches, burgers, salads, and of course, Hooters original chicken wings and the “nearly world famous” Hooters Girls. The Company started initially as an investor in corporate owned Hooters and, subsequently evolved into a franchisee operator. We held a minority investment stake in Hooters of America.

 

We previously operated Just Fresh stores and 5 South African Hooters locations. These locations were sold during the year ended December 31, 2019. These were report as separate segments prior to their sale. Consequently, the Company discontinued reporting separate operating segments.

 

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Recent Developments

 

Merger

 

On April 1, 2020, Chanticleer completed its Merger with Sonnet, in accordance with the terms of the Merger Agreement, as amended by Amendment No. 1 thereto, dated as of February 7, 2020 (as so amended, the “Merger Agreement”).On April 1, 2020, in connection with the Merger, Chanticleer changed its name to “Sonnet BioTherapeutics Holdings, Inc.”

 

Spin-Off

 

In connection with and prior to the Merger, on March 31, 2020, Chanticleer contributed and transferred to Amergent, a newly formed, wholly owned subsidiary of Chanticleer, all of the assets and liabilities relating to Chanticleer’s restaurant business. On March 16, 2020, the board of directors of Chanticleer declared a dividend with respect to the shares of Chanticleer’s common stock outstanding at the close of business on March 26, 2020 of one share of the Amergent common stock held by Chanticleer for each outstanding share of Chanticleer common stock. The dividend, which together with the contribution and transfer of Chanticleer’s restaurant business described above, is referred to as the “Spin-Off.” Prior to the Spin-Off, Amergent engaged in no business or operations.

 

PPP Loan

 

On March 27, Congress passed “The Coronavirus Aid, Relief, and Economic Security Act” (CARES Act), which included the “Paycheck Protection Program” (PPP) for small businesses. On April 27, 2020, Amergent received a PPP loan in the amount of $2.1 million. Due to the Spin-Off and Merger, Amergent was not publicly traded at the time of the loan application or funding.

 

The note bears interest at 1% per annum, matures in April 2022, and requires monthly interest and principal payments of approximately $119,000 beginning in November 2020 and through maturity. The currently issued guidelines of the program allow for the loan proceeds to be forgiven if certain requirements are met. Any loan proceeds not forgiven will be repaid in full.

 

RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2020 COMPARED TO THE THREE MONTHS ENDED MARCH 31, 2019

 

Our results of operations are summarized below:

 

   Three Months Ended     
   March 31, 2020   March 31, 2019     
   Amount   % of Revenue*   Amount   % of Revenue*   % Change 
                     
Restaurant sales, net  $5,491,457        $7,549,846         -27.3%
Gaming income, net   99,749         116,085         -14.1%
Management fees   -         25,000         -100.0%
Franchise income   90,032         146,657         -38.6%
Total revenue   5,681,238         7,837,588         -27.5%
                          
Expenses:                         
Restaurant cost of sales   1,797,770    32.7%   2,422,075    32.1%   -25.8%
Restaurant operating expenses   3,625,844    66.0%   5,151,483    68.2%   -29.6%
Restaurant pre-opening and closing expenses   20,730    0.4%   69,175    0.9%   -70.0%
General and administrative   1,175,153    20.7%   1,338,881    17.1%   -12.2%
Asset impairment charge   -    0.0%   91,491    1.2%   -100.0%
Depreciation and amortization   415,831    7.3%   459,357    5.9%   -9.5%
Total expenses   7,035,328    123.8%   9,532,462    121.6%   -26.2%
Operating loss   (1,354,090)        (1,694,874)          
Other expense, net   442,112         227,654           
Loss before income taxes  $(1,796,202       $(1,922,528          

 

* Restaurant cost of sales, operating expenses and pre-opening and closing expense percentages are based on restaurant sales, net. Other percentages are based on total revenue.

 

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Revenue

 

Total revenue decreased to $5.7 million for the three months ended March 31, 2020 from $7.8 million for the three months ended March 31, 2019.

 

   Three Months Ended
March 31, 2020
 
Revenue  Total   % of Total 
Restaurant sales, net  $5,491,457    96.7%
Gaming income, net   99,749    1.8%
Management fees   -    0.0%
Franchise income   90,032    1.6%
Total revenue  $5,681,238    100.0%

 

   Three Months Ended
March 31, 2019
 
Revenue  Total   % of Total 
Restaurant sales, net  $7,549,846    96.3%
Gaming income, net   116,085    1.5%
Management fees   25,000    0.3%
Franchise income   146,657    1.9%
Total revenue  $7,837,588    100.0%

 

Revenue from Restaurant Sales decreased 27.3% to $5.5 million for the three months ended March 31, 2020, compared to the three months ended March 31, 2019. The primary reason for the decline in revenue is the closing of non-performing stores, which accounted for 65% of the decline. Additionally, there was a decline due to COVID-19 pandemic restrictions, where a portion of the restaurants were temporarily closed, and the units that remained open were only able to provide take-out and delivery orders for customers due to government restrictions and mandates. However, this impact accounted for less than 3% of the overall decline. The remaining decline was driven by the decline in same store sales. Same store sales are defined as stores that are open for the 12 months prior to the quarters end March 31, 2019 and 2018 and were open during both reporting periods.
   
Gaming income decreased 14.1% to $99,749 for the three months ended March 31, 2020, compared to the three months ended March 31, 2019 mainly due to the closing of the gaming location in late March 2020 due to COVID restrictions.
   
Franchise income decreased 38.6% to $90,032 for the three months ended March 31, 2020, compared to the three months ended March 31, 2019 mainly due to the closing of non-performing franchised locations.

 

Restaurant cost of sales

 

Restaurant cost of sales decreased to $1.8 million for the three months ended March 31, 2020 from $2.4 million for the three months ended March 31, 2019. Additionally, the percent of restaurant sales increased slightly to 32.7% for the three months ended March 31, 2020 from 32.1% for the three months ended March 31, 2019. The overall decrease in cost of sales was due to the decline in overall revenue as outlined above in the Revenue discussion. The reason for the increase in the percent of cost of sales was an increase in commodity prices and overall food costs in general.

 

   Three Months Ended 
   March 31, 2020   March 31, 2019     
Cost of Restaurant Sales  Amount   % of Restaurant Net Sales   Amount   % of Restaurant Net Sales   % Change 
Total Company  $1,797,770    32.7%  $2,422,075    32.1%   -25.8%

 

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Restaurant operating expenses

 

Restaurant operating expenses decreased to $3.6 million for the three months ended March 31, 2020 from $5.2 million for the three months ended March 31, 2019. The overall decrease of restaurant operating expenses was driven by the overall decline of revenue as described in the revenue section above, and the corresponding adjustment of labor at the store level and tighter controls of store level operating expenses. Restaurant operating expenses are summarized below for each period.

 

   Three Months Ended 
   March 31, 2020   March 31, 2019     
Operating Expenses  Amount   % of Restaurant Net Sales   Amount   % of Restaurant Net Sales   % Change 
Total Company  $3,625,844    66.0%  $5,151,483    68.2%   -29.6%

 

Restaurant pre-opening and closing expenses

 

Restaurant pre-opening and closing expenses decreased to $20,730 for the three months ended March 31, 2020 compared with $69,175 for the three months ended March 31, 2019. The Company records rent and other costs to pre-opening expenses while the restaurants are under construction, so these expenses fluctuate depending on the numbers of restaurants under construction.

 

General and administrative expense (“G&A”)

 

G&A decreased to $1.2 million for the three months ended March 31, 2020 from $1.3 million for the three months ended March 31, 2019. The decreased in G&A was driven by the reduction of Salaries and Benefits resulting from the departure of two senior management personnel (approximately $98,000), and a reduction in travel and entertainment due to not having to manage unionization efforts that occurred in 2019 (approximately $25,000), and improvements in management of operations. Significant components of G&A are summarized as follows:

 

   Three Months Ended 
   March 31, 2020   March 31, 2019 
Audit, legal and other professional services  $272,044   $303,941 
Salary and benefits   560,021    689,082 
Travel and entertainment   19,798    53,661 
Shareholder services and fees   36,582    20,112 
Advertising, Insurance and other   286,708    272,085 
Total G&A Expenses  $1,175,153   $1,338,881 

 

Asset impairment charges

 

Asset impairment charges totaled $0 for the three months ended March 31, 2020 as compared with $91,491 for the three months ended March 31, 2019.

 

Depreciation and amortization

 

Depreciation and amortization expense decreased to $415,831 for the three months ended March 31, 2020 compared to $459,357 for the three months ended March 31, 2019 due to the lower level of capital expenditures in recent periods (quarter ended March 31, 2020 and year ended December 31, 2019) versus earlier years from fewer new location openings.

 

Other expense, net

 

Other expense, net consisted of the following:

 

   Three Months Ended 
   March 31, 2020   March 31, 2019 
         
Interest expense  $162,988   $208,223 
Change in fair value of derivative instrument   297,000    - 
Other   17,876    (19,431
Total other expense, net  $442,112   $227,654 

 

Other expense, net increased to $442,112 for the three months ended March 31, 2020 from $227,654 for the three months ended March 31, 2019. This increase was primarily driven by a $297,000 charge for the change in a derivative liability. The derivative liability relates to the “true up payment” provision of the bridge financing obtained in 2020. The derivative liability will be re-measured through its settlement in August 2020. This increase in expense was partially offset by a $45,235 decrease in interest expense from a reduction in outstanding debt due to the conversion of debt to equity through the rights offering in 2019.

 

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STATEMENT OF CASH FLOWS FOR THE THREE MONTHS ENDED MARCH 31, 2020 COMPARED TO THE THREE MONTHS ENDED MARCH 31, 2019

 

   Three Months Ended 
   March 31, 2020   March 31, 2019 
         
Net Cash Provided by (used in) Operating Activities  $(1,905,052)  $(646,471)
Net Cash Provided by (used in) Investing Activities   (19,713)   (18,793)
Net Cash Provided by (used in) Financing Activities   2,007,209    596,865 
Effect of foreign currency exchange rates on cash   (34,195)   282 
   $48,249   $(68,117)

 

Cash used in operating activities was $1.9 million for the quarter ended March 31, 2020 compared to cash used in activities of $646,471 in the prior year period. This use of cash was a significant reduction in accounts payable and accrued expenses, the paydown of payroll tax liabilities, and the prepayment of insurance premiums for 2020 as a condition to the pending Merger with Sonnet. As such, these uses of cash improved working capital significantly from the three months ended March 31, 2020 compared to the same period in 2019.

 

Cash used in investing activities for the quarter ended March 31, 2020 compared was $19,713 compared to cash used of $18,793 in the prior year period.

 

Cash provided by financing activities for the quarter ended March 31, 2020 compared was $2.0 million compared to cash provided by financing activities of $596,865 in the prior year period. The primary drivers of the cash provided by financing activities during 2020 was proceeds from the bridge preferred equity investment and the exercise of warrants.

 

RESULTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2019 COMPARED TO THE YEAR ENDED DECEMBER 31, 2018

 

Our results of operations are summarized below:

 

   Years Ended     
   December 31, 2019   December 31, 2018     
   Amount   % of
Revenue*
   Amount   % of
Revenue*
   % Change 
                     
Restaurant sales, net  $29,055,521        $29,785,526         -2.5%
Gaming income, net   462,507         402,611         14.9%
Management fee income   50,000         100,000         -50.0%
Franchise income   575,090         445,335         29.1%
Total revenue   30,143,118         30,733,472         -1.9%
                          
Expenses:                         
Restaurant cost of sales   9,494,777    32.7%   9,701,549    32.6%   -2.1%
Restaurant operating expenses   19,406,358    66.8%   18,423,991    61.9%   5.3%
Restaurant pre-opening and closing expenses   361,554    1.2%   398,473    1.3%   -9.3%
General and administrative   5,966,447    19.8%   3,862,146    12.6%   54.5%
Asset impairment charge   9,149,852    30.4%   1,899,817    6.2%   381.6%
Depreciation and amortization   1,842,352    6.1%   1,816,826    5.9%   1.4%
Total expenses   46,221,340    153.3%   36,102,802    117.5%   28.0%
Operating loss from continuing operations   (16,078,222)        (5,369,330)          
Other expense   1,291,410         2,702,216           
Loss before income taxes  $(17,369,632)       $(8,071,546)          

 

* Restaurant cost of sales, operating expenses and pre-opening and closing expense percentages are based on restaurant sales, net. Other percentages are based on total revenue.

 

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Revenue

 

Total revenue decreased $.6 million to $30.1 million for the year ended December 31, 2019 from $30.7 million for the year ended December 31, 2018.

 

Restaurant revenue decreased by $730,000, or 2.5%, for the year ended December 31, 2019 to $29.1 million. This decline was driven by closure of unprofitable stores (BRG Dupont, BRG Springfield, BRG Tysons and Hooters Tacoma), which represents $2.1 million of lower sales in 2019 versus 2018, and by a decline in same store sales across all brands of $671,000, or 2.2%. Same store sales are defined as stores that are opened for an entire 12 months and are included in both reporting periods. These sales declines were partially offset by the opening of three Little Big Burger restaurants during 2019. These new stores provided revenues of $1.1 million in 2019.

   
Gaming income increased 14.9% for the year ended December 31, 2019 to $462,507 versus the year ended December 31, 2018, driven by increased customer demand.
   
Franchise income increased 29.1% for the year ended December 31, 2019 to $575,090 versus the year ended December 31, 2018. This increase was driven by a non-cash franchise income of approximately $132,000 recorded due to the termination of two franchise locations of Little Big Burger in 2019.
   
Management fee income decreased to $50,000 for year ended December 31, 2019 from $100,000 for the ended December 31, 2018. The Company previously derived management fee income from the Company’s CEO serving on the board of Hooters of America. This compensation ended with the sale of Hooters of America in June 2019.

 

   Years Ended
December 31, 2019
 
Revenue  Total   % of Total 
Restaurant sales, net  $29,055,521    96.4%
Gaming income, net   462,507    1.5%
Management fees   50,000    0.2%
Franchise income   575,090    1.9%
Total revenue  $30,143,118    100.0%

 

    Years Ended
December 31, 2018
 
Revenue   Total     % of Total  
Restaurant sales, net   $ 29,785,526       96.9 %
Gaming income, net     402,611       1.3 %
Management fees     100,000       0.3 %
Franchise income     445,335       1.4 %
Total revenue   $ 30,733,472       100.0 %

 

Restaurant cost of sales

 

Restaurant cost of sales decreased 2.1% to $9.5 million for the year ended December 31, 2019 from $9.7 million for the year ended December 31, 2018. Additionally, the percent of restaurant sales increased slightly to 32.7% for the year ended December 31, 2019 from 32.6% for the year ended December 31, 2018.

 

    Years Ended  
    December 31, 2019     December 31, 2018        
Cost of Restaurant Sales   Amount     % of Restaurant Net Sales     Amount     % of Restaurant Net Sales     % Change  
Total Company   $ 9,494,777       32.7 %   $ 9,701,549       32.6 %     -2.1 %

 

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Restaurant operating expenses

 

Restaurant operating expenses increased 5.3% to $19.4 million for the year ended December 31, 2019 from $18.4 million for the year ended December 31, 2018. Additionally, the percent of restaurant operating expenses increased to 66.8% for the year ended December 31, 2019 from 61.9% for the year ended December 31, 2018. This increase was driven by the increased operating expenses related to the three Little Big Burgers restaurants opened in 2019, which would include increased occupancy costs for these new stores.

 

    Years Ended  
    December 31, 2019     December 31, 2018        
Operating Expenses   Amount     % of Restaurant Net Sales     Amount     % of Restaurant Net Sales     % Change  
Total Company   $ 19,406,358       66.8 %   $ 18,423,991       61.9 %     5.3 %

 

Restaurant pre-opening and closing expenses

 

Restaurant pre-opening and closing expenses decreased to $361,554 for the year ended December 31, 2019 compared with $398,473 for the year ended December 31, 2018. The Company has one (1) Little Big Burger restaurant under lease and is incurring pre-opening rent and other costs while preparing to start construction.

 

General and administrative expense (“G&A”)

 

G&A increased 54.5% to $6.0 million for the year ended December 31, 2019 from $3.9 million for the year ended December 31, 2018. Significant components of G&A are summarized as follows:

 

    Years Ended        
    December 31, 2019     December 31, 2018     % Change  
Audit, legal and other professional services   $ 1,887,919     $ 1,120,029       68.6 %
Salary and benefits     2,375,592       1,667,315       42.5 %
Travel and entertainment     200,353       157,689       27.1 %
Shareholder services and fees     114,864       62,273       84.5 %
Advertising, Insurance and other     1,387,759       854,839       62.3 %
Total G&A Expenses   $ 5,966,487     $ 3,862,146       54.5 %

 

As a percentage of total revenue, G&A increased to 19.8% for the year ended December 31, 2019 from 12.6% for the year ended December 31, 2018. This increase in G&A was driven by increased legal fees and other charges related to resolving unionization efforts (approximately $225,000), increased professional fees related to a rights offering (approximately $75,000), expenses related to the proposed reverse merger with Sonnet (approximately $200,000), addition of executive management salaries (approximately $560,000), increased marketing and advertising expenses from a customer segmentation study to build a customer loyalty program and the development and roll-out of a digital marketing strategy to attract new customers (approximately $275,000).

 

Asset impairment charges

 

Asset impairment charges totaled $9.1 million for the year ended December 31, 2019 as compared with $1.9 million for the year ended December 31, 2018. The primary components of this impairment charge included an identified impairment of approximately $2.0 million related to the goodwill of the Company’s legacy Hooters reporting segment, an identified impairment of approximately $3.4 million related to property and equipment held for use, an identified impairment of approximately $3.2 million related to operating lease assets and an identified impairment of approximately $400,000 related to one of the Company’s indefinite-lived trade names. Each of these impairment charges is discussed in further detail in Note 2 of the accompanying consolidated and combined financial statements for the year ended December 31, 2019.

 

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Depreciation and amortization

 

Depreciation and amortization expense remained constant at approximately $1.8 million for both the years ended December 31, 2019 and 2018.

 

Other expense, net

 

Other income (expense) consisted of the following:

 

    Years Ended  
Other Income (Expense)   December 31, 2019     December 31, 2018     % Change  
Interest expense   $ (673,573 )   $ (2,549,436 )     -73.6 %
Other income (expense)     (617,837 )     (152,780 )     304.4 %
Total other expense, net   $ (1,291,410 )   $ (2,702,216 )     -52.2 %

 

Other expense, net decreased to $1.3 million for the year ended December 31, 2019 from $2.7 million for the year ended December 31, 2018. This decrease was primarily driven by the reduction of debt, and the related interest reduction, through the conversion of debt to equity in the rights offering in 2019. The decrease in interest expense was partially offset by an increase in other expense by $465,057. This increase was due to an approximately $435,000 write down on an investment in Hooters of America.

 

STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 2019 COMPARED TO THE YEAR ENDED DECEMBER 31, 2018

 

    Years Ended  
    December 31, 2019     December 31, 2018  
             
Net Cash Provided by (used in) Operating Activities   $ (4,046,550 )   $ (1,109,634 )
Net Cash Used in Investing Activities     678,669       (2,051,031 )
Net Cash Provided by Financing Activities     3,343,397       2,115,442  
Effect of foreign currency exchange rates on cash     1,390       3,091  
    $ (23,094 )   $ (1,042,132 )

 

Cash used in operating activities was $4.0 million for the year ended December 31, 2019 compared to cash used in activities of $1.1 million in the prior year period. This increase in use of cash in 2019 was driven by the increased operating expenses related to the three Little Big Burgers restaurants opened, increased occupancy costs for these new stores, inability to reduce fixed operating costs as revenue declined for same store sales, and increased General & Administrative costs due to the addition of senior management, marketing programs, and legal costs related to the unionization effort and rights offering.

 

Cash from investing activities for the year ended December 31, 2019 was $678,669 compared to cash used of $2.1 million in the prior year period. The primary drivers of the increase in cash from investing were the sale of the five Hooters South Africa locations and the cash from the sale of Just Fresh.

 

Cash provided by financing activities for the year ended December 31, 2019 was $3.3 million compared to cash provided by financing activities of $2.1 million in the prior year period. The primary drivers of the cash provided by financing activities during 2019 was proceeds from a rights offering and cash received from the exercise of warrants.

 

LIQUIDITY, CAPITAL RESOURCES AND GOING CONCERN

 

As of March 31, 2020, our cash balance was approximately $550,000, our working capital was negative $16.4 million, and it had significant near-term commitments and contractual obligations. As of December 31, 2019, our cash balance was approximately $500,000, our working capital was negative $16.9 million The level of additional cash needed to fund operations and our ability to conduct business for the next twelve months will be influenced primarily by the following factors:

 

  our ability to access the capital and debt markets to satisfy current obligations and operate the business;

 

  our ability to refinance or otherwise extend maturities of current debt obligations;

 

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  the level of investment in acquisition of new restaurant businesses and entering new markets;

 

  our ability to manage our operating expenses and maintain gross margins as we grow;

 

  popularity of and demand for our fast-casual dining concepts; and

 

  general economic conditions and changes in consumer discretionary income.

 

We have typically funded our operating costs, acquisition activities, working capital requirements and capital expenditures with proceeds from the issuances of our common stock and other financing arrangements, including convertible debt, lines of credit, notes payable, capital leases, and other forms of external financing.

 

On March 10, 2020, the World Health Organization characterized the novel COVID-19 virus as a global pandemic. The COVID-19 outbreak in the United States has resulted in a significant impact throughout the hospitality industry. The Company has been impacted due to restrictions placed on them by state and local governments that caused temporary restaurant closures or significantly reduced the Company’s ability to operate, restricting the Company’s restaurants to take-out only. It is difficult to estimate the length or severity of this outbreak; however, the Company has made operational changes, as needed, to reduce the impact, however there can be no certainty regarding the length and severity of the outbreak and such its ultimate financial impact on the restaurant operations.

 

As a result of the Merger and Spin-Off on April 1, 2020, Amergent received $6,000,000 in cash and warrants to purchase 186,161 shares of Sonnet’s common stock as well as paid down and refinanced certain debt obligations. Even considering the additional liquidity on April 1, 2020, there can be no assurances that Amergent will not need to seek additional debt or equity funding or that such funding would be available at commercially reasonable terms, if at all.

 

As Amergent executes its business plan over the next 12 months, it intends to carefully monitor the impact of growth on its working capital needs and cash balances relative to the availability of cost-effective debt and equity financing. In the event that capital is not available, Amergent may then have to scale back or freeze its growth plans, sell assets on less than favorable terms, reduce expenses, and/or curtail future acquisition plans to manage its liquidity and capital resources.

 

The Company’s current operating losses, combined with its working capital deficit and uncertainties regarding the impact of COVID-19 raise substantial doubt about our ability to continue as a going concern.

 

The accompanying condensed consolidated and combined financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts and classification of liabilities that might be necessary should the Company be unable to continue as a going concern.

 

Critical Accounting Policies

 

Our reported results of operations and financial position are dependent upon the application of certain accounting policies and estimates that require subjective or complex judgments. Such estimates are inherently uncertain and changes in such estimates could have a significant impact on reported results and balances for the periods presented as well as future periods. The following is a description of what we consider to be our most critical accounting policies.

 

Leases

 

We determine if a contract contains a lease at inception. Our material operating leases consist of restaurant locations and office space. Our leases generally have remaining terms of 1-20 years and most include options to extend the leases for additional 5-year periods. Generally, the lease term is the minimum of the noncancelable period of the lease or the lease term inclusive of reasonably certain renewal periods up to a term of 20 years. If the estimate of our reasonably certain lease term was changed, our depreciation and rent expense could differ materially.

 

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Operating lease assets and liabilities are recognized at the lease commencement date. Operating lease liabilities represent the present value of lease payments not yet paid. Operating lease assets represent our right to use an underlying asset and are based upon the operating lease liabilities adjusted for prepayments or accrued lease payments, initial direct costs, lease incentives, and impairment of operating lease assets. To determine the present value of lease payments not yet paid, we estimate incremental borrowing rates corresponding to the reasonably certain lease term. As we have no outstanding debt nor committed credit facilities, secured or otherwise, we estimate this rate based on prevailing financial market conditions, comparable company and credit analysis, and management judgment. If the estimate of our incremental borrowing rate was changed, our operating lease assets and liabilities could differ materially.

 

Definite-Lived Asset Impairment, Estimated Lease Termination and Other Closing Costs

 

Whenever events or circumstances indicate that the carrying amount of our long-lived assets may not be recoverable, we evaluate such assets for impairment. We determine recoverability of these assets by comparing their carrying values to an estimate of their future undiscounted cash flows. The estimate of future cash flows is dependent on multiple variables including expected growth rates, the success of cost containment efforts and remaining lease terms. Such assumptions are based on management judgment and, as such, actual results could vary significantly from such estimates. A revision in these estimates could have a significant impact on future reported operations and financial position. Assets that have been previously impaired are reported at the lower of the newly impaired carrying value or the most recently developed estimate of their recoverable value. At December 31, 2019 we identified approximately $6,600,000 of impairment related to our definite-lived assets.

 

Once we have determined that a restaurant location is to be closed, we estimate the expected proceeds to be received from such disposal and impair the carrying value of the net assets of such locations to this estimate and report these net assets as assets held for sale. Our estimate of disposal proceeds is dependent upon multiple assumptions including our ability to identify a buyer as well as the general market for commercial real estate at the expected time of disposal. Actual results could significantly differ from these estimates, which could result in a significant impact to reported operations in future periods. Assets that have been impaired to their estimated disposal proceeds are maintained at the lower of this new carrying value or the most recently developed estimate of eventual proceeds.

 

Goodwill and Intangible Assets

 

Goodwill is not subject to amortization but is tested at least annually or when impairment indicators are present. Impairment is measured as the excess of carrying value of the goodwill to its estimated fair value. At December 31, 2019 the Company identified an impairment charge of approximately $2,000,000 related to its legacy Hooters reporting unit. At December 31, 2019, the Company noted that the fair value of its legacy Better Burger reporting unit was approximately $4,500,000 in excess of its carrying value. Additionally, given the impact of the COVID-19 pandemic, the Company performed an impairment analysis as of March 31, 2020 and determined that no additional impairment charges were needed and that the fair value of the Company’s remaining reporting unit with assigned goodwill exceeded its book value by approximately $2,400,000. Given the impairment charge taken on the Hooters reporting unit in 2019 and the substantial excess of the estimated fair value of the Company’s remaining reporting unit over its book value as of March 31, 2020, the Company does not anticipate further impairment of goodwill in the near-term. This conclusion is largely dependent upon our ability to recover market share as the lock-downs associated with the COVID-19 pandemic are eased. Should such lock-downs be stalled or reversed by government mandate or should the long-term behavior of our customers change unexpectedly, the estimated fair value of our remaining reporting unit may need to be adjusted downward, resulting in further impairment charges in future periods.

 

Indefinite-lived trade names are not subject to amortization but is tested at least annually or when impairment indicators are present. Impairment is measured as the excess of carrying values of the trade names to their estimated fair values. At December 31, 2019, the Company identified an impairment charge of approximately $400,000 related to its BGR: The Burger Joint trade name. At December 31, 2019, the Company noted that the fair value of its Little Big Burger trade name was substantially in excess of its carrying value. As of March 31, 2020 the Company performed an updated impairment analysis and determined that no additional impairment charge was required.

 

Definite-lived intangible assets include the American Burger Company trade name and acquired franchise rights for BGR: The Burger Joint concept. Impairment is recorded for these assets whenever facts and circumstances indicate that the carrying value of these assets is in excess of their future undiscounted cash flows. At March 31, 2020 and December 31, 2019 the estimated future undiscounted cash flows related to these assets were substantially in excess of their carrying values and no impairment was recorded for the three months or year then ended.

 

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We evaluate goodwill and other indefinite-lived intangibles for impairment on an annual basis or more frequently if events and circumstances indicate that impairment may exist. Goodwill is evaluated for impairment by determining whether the estimated fair value of our reporting units exceeds their carrying value. As described in Note 15, the Company identified a single reporting unit for the year ended December 31, 2019 but elected to perform its impairment test on the two reporting units that had been identified in previous reporting periods: the Hooters and Better Burger concepts. As of March 31, 2020 the Company tested goodwill for impairment based on a single reporting unit. We estimate the fair value of our reporting units based on a discounted cash flow model. This estimate is subject to multiple variables requiring significant judgment including the utilization of an appropriate discount rate that reasonably reflects the assumed rate of return that a third party buyer would expect to receive when purchasing a business from us that constitutes a reporting unit, as well as an estimate of future cash flows, which are based on our best estimates of future store openings and closings, the future performance of existing stores, the growth rate of sales as well as the ability to effectively manage future costs. Such inputs are highly subjective and actual results could differ substantially from our estimates. A revision of such estimates in future reporting periods, whether due to external economic events or internal factors, could have a significant impact on future reported results.

 

At the time of sale of the South African locations, we performed an impairment analysis and determined the fair value of our Hooters reporting segment was determined to be less than the estimated fair value at December 31, 2019. As such, the Company recorded a goodwill impairment charge of approximately $2,000,000 for the year ended December 31, 2019. The fair value of our burger reporting unit (inclusive of the American Burger Company, BGR: The Burger Joint, and Little Big Burger concepts) was substantially in excess of its carrying value as of the 2019 goodwill testing date. Additionally, given the impact of the COVID-19 pandemic, the Company performed an impairment analysis as of March 31, 2020 and determined that no additional impairment charges were needed and that the fair value of the Company’s remaining reporting unit with assigned goodwill was still substantially in excess of its carrying value.

 

Our indefinite-lived intangible assets (which is wholly constituted of indefinite-lived trade names for our BGR: The Burger Joint and Little Big Burger concepts) is tested at least annually for impairment, or more frequently if events and circumstances indicate that the carrying values of such assets may be in excess of their fair values. The fair value of trade names are estimated based on a relief-from-royalty method, which assumes the value of the trade name is the discounted cash flows of the amount that would have to be paid to utilize the trade name were it not owned by the Company. Significant assumptions utilized in this model include developing a reasonable estimate of royalty rates as well as an estimate of future revenues for each of the concepts, which are dependent on Management’s best estimate of future store opening and closures as well as future revenue growth at existing locations. Changes in these estimates could have a significant impact on future reported results.

 

The fair value of our trade name for BGR: The Burger Joint was determined to be less than the estimated fair value at December 31, 2019. As such, the Company recorded an impairment charge of approximately $400,000 for the year ended December 31, 2019. The fair value of our Little Big Burger trade name was substantially in excess of its carrying value as of the 2019 testing date. As of March 31, 2020 the Company performed an updated impairment analysis and determined that no additional impairment charge was required.

 

COMMITMENTS AND CONTINGENCIES

 

Through our subsidiaries, we lease the land and buildings for 1 restaurant in Nottingham, United Kingdom, and 37 restaurant locations in the U.S. (including closed locations). The terms for our restaurant leases vary from two to twenty years and have options to extend. We lease some of our restaurant facilities under “triple net” leases that require us to pay minimum rent, real estate taxes, maintenance costs and insurance premiums and, in some instances, percentage rent based on sales in excess of specified amounts.

 

ITEM 3. PROPERTIES

 

Through our subsidiaries, we lease the land and buildings for 1 restaurant in Nottingham, United Kingdom, and 37 restaurant locations in the U.S. The terms for our leases vary from two to twenty years and have options to extend. We lease some of our restaurant facilities under “triple net” leases that require us to pay minimum rent, real estate taxes, maintenance costs and insurance premiums and, in some instances, percentage rent based on sales in excess of specified amounts. We also lease our corporate office space in Charlotte, North Carolina.

 

Our office and restaurant facilities are suitable and adequate for our business as it is presently conducted.

 

ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

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Security Ownership of Certain Beneficial Owners and Management

 

To our knowledge, the following table sets forth information with respect to beneficial ownership of outstanding common stock as of June 2, 2020 by:

 

  each person known by the Company to beneficially own more than 5% of the outstanding shares of the common stock;
  each of our Named Executive Officers;
  each of our directors; and
  all of our directors and executive officers as a group.

 

Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities as well as securities which the individual or group has the right to acquire within 60 days of the determination date. Unless otherwise indicated, the address for those listed below is c/o Amergent Hospitality Group, Inc., 7621 Little Avenue, Suite 414, Charlotte, NC 28226. Except as indicated by footnote, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all shares of common stock shown as beneficially owned by them. The number of shares of the common stock outstanding used in calculating the percentage for each listed person includes the shares of common stock underlying warrants, options or other convertible securities held by such persons that are exercisable within 60 days of June 2, 2020 but excludes shares of common stock underlying warrants, options or other convertible securities held by any other person. The number of shares of common stock issued and outstanding as of June 2, 2019 was 14,282,736. Except as noted otherwise, the amounts reflected below are based upon information provided to the Company and filings with the SEC.

 

Name of Beneficial Owner  Number of Shares Beneficially Owned   Percent of
Class
 
         
Michael D. Pruitt (1)   62,717    * 
Frederick L. Glick (2)   50,764    * 
Patrick Harkleroad   0    * 
Keith J. Johnson    45,569    * 
Neil G. Kiefer (3)   40,091    * 
J. Eric Wagoner (4)   41,336    * 
Directors and Executive Officers as a Group (6 persons)   235,462    2.26%
Oz Rey, LLC (5)   41,941,490    74.60%**
Arena Origination Co., LLC (6)   1,961,696    9.99%*
Arena Special Opportunities Fund, LP (7)   1,289,149    8.59%**

 

* less than 1%

***calculation based on assumption authorized share capital will be approved by shareholders and increased by a minimum of 14,282,736 shares.

***contractual beneficial ownership limitation of 9.99% for Arena Origination Co., LLC, Arena Special Opportunities Fund, LP and their affiliates, collectively.

 

(1) Includes 10,429 shares held directly by Mr. Pruitt’s individual IRA account and 34,962 shares held directly by Avenel Financial Group. Mr. Pruitt exercises voting and dispositive control over these shares.

(2) Includes 20,769 shares held directly by Mr. Glick’s individual IRA account. Mr. Glick exercises voting and dispositive control over these shares.

(3) Includes 2,000 shares held directly by Mr. Kiefer’s individual IRA account. Mr. Kiefer exercises voting and dispositive control over these shares.

(4) Includes 10,690 shares held directly by Mr. Wagoner’s individual IRA account. Mr. Wagoner exercises voting and dispositive control over these shares.

(5) Includes 40,378,890 shares issuable upon conversion of outstanding 10% debenture and 1,562,600 shares issuable upon exercise of currently exercisable warrants. The parties are in negotiations to regarding beneficial ownership limitations and to address the deficient authorized share count.

(6) Includes up to 860,863 shares of common stock currently held, up to 950,000 shares issuable upon conversion of 475 shares of Series 2 Preferred and up to 150,833 shares underlying currently exercisable warrants. Arena Investors, LP is the investment adviser of, and may be deemed to beneficially own securities owned by, Arena Origination Co., LLC, or “Originating Fund”. Westaim Origination Holdings, Inc is the managing member of, and may be deemed to beneficially own securities owned by, Originating Fund. Arena Investors GP, LLC is the general partner of, and may be deemed to beneficially own securities owned by, Arena Investors, LP. Each of Arena Investors, LP and Westaim Origination Holdings, Inc. or, together, Arena, shares voting and disposal power over the shares held by Originating Fund. Each of the persons set forth above other than Originating Fund disclaims beneficial ownership of the shares beneficially owned by Originating Fund and this prospectus shall not be construed as an admission that any such person or entity is the beneficial owner of any such securities. The address for Originating Fund is c/o Arena Investors LP, 405 Lexington Avenue, 59th Floor, New York, New York 10174.

(7) Includes 565,982 shares of common stock held, up to 624,000 shares issuable upon conversion of 312 shares of Series 2 Preferred and 99,167 shares underlying currently exercisable warrants. Arena Investors, LP is the investment adviser of, and may be deemed to beneficially own securities owned by Arena Special Opportunities Fund, LP, Arena Special Opportunities Fund (Onshore) GP, LLC is the general partner of, and may be deemed to beneficially own securities owned by, Opportunities Fund. Arena Investors GP, LLC is the general partner of, and may be deemed to beneficially own securities owned by, Arena Investors, LP. Each of Arena Investors, LP and Arena Special Opportunities Fund (Onshore) GP, LLC, or, together, Arena, shares voting and disposal power over the shares held by Opportunities Fund. Each of the persons set forth above other than Opportunities Fund disclaims beneficial ownership of the shares beneficially owned by Opportunities Fund and this prospectus shall not be construed as an admission that any such person or entity is the beneficial owner of any such securities. The address for Opportunities Fund is c/o Arena Investors LP, 405 Lexington Avenue, 59th Floor, New York, New York 10174.

 

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ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS

 

The following section sets forth the names, ages and current positions with the Company held by our directors and executive officers, together with certain biographical information. There is no immediate family relationship between or among any of our directors and our executive officers, and the Company is not aware of any arrangement or understanding between any director or executive officer and any other person pursuant to which he was elected to his current position.

 

Each director and executive officer will serve until he or she resigns or is removed or otherwise disqualified to serve or until his or her successor is elected. Each director was appointed to the board of Amergent concurrently with the Merger and Spin-Off.

 

Our bylaws give the board authority to expand or reduce the number of available board seats between five and nine, provided reduction may not be implemented below number of occupied seats. For as long as Oz Rey, LLC holds 10% debentures, it has the right, but not the obligation, to appoint two directors (“Appointees”) to Amergent’s board. Amergent agreed that its board or governance committee, if it has one, will re-nominate the Appointees as a directors at annual meetings. and recommend that stockholders vote “for” such Appointees at annual meetings. All proxies given to management will also vote in favor of such Appointees. This right to designate the Appointees will be subject to Nasdaq Listing Rules in the event Amergent seeks listing on one of the exchanges of the Nasdaq Stock Market. Oz Rey, LLC has not yet submitted any Appointees to Amergent.

 

Directors

 

Name   Age   Position
         
Frederick L. Glick   54   President
         
Keith J. Johnson   61   Independent Director
         
Neil G. Kiefer   67   Independent Director
         
Michael D. Pruitt   58   Chairman and Chief Executive Officer
         
J. Eric Wagoner   68   Independent Director

 

Keith J. Johnson

 

Mr. Johnson is the Chief Financial Officer of Watertech Equipment & Sales. He served as the Manager of Business Development for Hudson Technologies from November 2012 through September 2013. From August 2010 through November 2012, Mr. Johnson was President of Efficiency Technologies, Inc., the wholly owned operating subsidiary of Efftec International, Inc. He was the President and Chief Executive Officer of YRT² (Your Residential Technology Team) in Charlotte, North Carolina since 2004. Mr. Johnson has a BS in Accounting from Fairfield University in Fairfield, Connecticut. Mr. Johnson served on the board of directors of Chanticleer from April 2007 through March 31, 2020 and also served as the Chairman of its Audit Committee and a member of its Compensation Committee. Mr. Johnson was asked to serve as director based in part on his financial expertise and general proven success in business.

 

Neil G. Kiefer

 

Mr. Kiefer is the Chief Executive Officer of Hooters Management Corporation, Hooters, Inc., and all its affiliated companies, a position he has held since May 1992. In 1994, Mr. Kiefer was appointed to the boards of those entities, and he continues to serve on those boards. He was also Chief Executive Officer of the Hooters Casino Hotel in Las Vegas, Nevada from 2006 to 2012. Mr. Kiefer received his bachelor’s degree from Bethany College in Bethany, West Virginia and received his law degree from Hofstra University in Hempstead, New York. He was admitted to the Florida Bar in 1979. Mr. Kiefer served on the board of Chanticleer from January 2017 through March 31, 2020 and was a member of its compensation committee. He possesses extensive knowledge of the casual dining industry and is an experienced having served on the boards of numerous companies.

 

Frederick L. Glick

 

Mr. Glick was appointed to serve as President of Chanticleer on November 16, 2018 and subsequently appointed as director effective May 10, 2019. Mr. Glick was the Vice President of Brewery Restaurants for the Karl Strauss Brewing Company brand in San Diego, California from 2013 to the present. Prior, from 2008 to 2013, Mr. Glick was the VP of Operations for Phil’s BBQ in San Diego, California. From 1991 to 2008, Mr. Glick was the President, CEO, Operating Partner of Hootwine, Inc., a Hooters franchise, in Oceanside, California. Mr. Glick graduated with a B.S. in Business Administration from Lehigh University in 1986. Each year, Mr. Glick volunteers with local service and charitable organizations and serves on the state board of directors of the California Restaurant Association and CRAF (California Restaurant Association Foundation).

 

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Michael D. Pruitt

 

Mr. Pruitt founded Avenel Financial Group, a boutique financial services firm concentrating on emerging technology company investments, in 1999. In 2001, he formed Avenel Ventures, a technology investment and private venture capital firm. In February 2005, Mr. Pruitt formed Chanticleer Holdings, Inc., which commenced operations in June 2005 with him as Chairman and Chief Executive Officer, roles he continued to serve through the Merger and Spin-Off. In January 2011, Mr. Pruitt became a director of the board of Hooters of America, LLC. Mr. Pruitt received a Bachelor of Arts degree from Coastal Carolina University in Conway, South Carolina, where he sits on the Board of Visitors of the E. Craig Wall Sr. College of Business Administration, the Coastal Education Foundation Board, and the Athletic Committee of the Board of Trustees.

 

J. Eric Wagoner

 

Mr. Wagoner has served as a Managing Director and Head of the High-Yield & Distressed Securities division of Source Capital Group since 1995. Mr. Wagoner has over 35 years of investment securities experience and has developed specialized expertise in high yield and distressed debt instruments. He serves as a member of the board of directors of Argus Research Group, a leading independent equity research firm, and is a member of the Board of Visitors at Wake Forest University. Mr. Wagoner is a graduate of the University of North Carolina and received his MBA from the Babcock Graduate School of Management at Wake Forest University. Mr. Wagoner holds NASD Series 7, 24 and 63 licenses. Mr. Wagoner served on Chanticleer’s board of directors from March 2018 through the Merger and Spin-Off and was a member of its audit committee and compensation committee. He was asked to serve as director based in part on his extensive securities knowledge and general proven success in business.

 

Executive Officers

 

Name   Age   Position
         
Michael D. Pruitt   58   Chairman and Chief Executive Officer
         
Frederick L. Glick   54   President
         
Patrick Harkleroad   47   Chief Financial Officer

 

Biographies for Mr. Pruitt and Mr. Glick are included with the director profiles above. Each officer was appointed to his respective position concurrently with the Merger and Spin-Off.

 

Patrick Harkleroad

 

Mr. Harkleroad was appointed to serve as Chief Financial Officer of Chanticleer effective January 21, 2019. From March 2018 to the present, Mr. Harkleroad built and led the financial consulting division of Sherpa, LLC, a recruiting and staffing company. Prior, from March 2017 to February 2018, Mr. Harkleroad was a financial consultant with the Business Enhancement Group of Carolina Financial Group (“CFG”), which provides financial and operational consulting to its portfolio and client companies. During his tenure at CFG, he served as the Chief Financial Officer for one of CFG’s portfolio companies, Trinity Frozen Foods, LLC (“Trinity”). At Trinity, Mr. Harkleroad oversaw all financial and accounting functions and was integral in bringing operational best practices to the company. Prior to his position at CFG, from January 2006 to January 2017, Mr. Harkleroad served as Chief Financial Officer of Retail Credit & Capital Corporation, Inc., dba Landmark Leisure Group in Charlotte, NC, a development company that created, owned, and operated original restaurant and pub concepts, including Blackfinn Ameripub, Vida Mexican Kitchen, and Strike City Lanes.

 

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ITEM 6. EXECUTIVE COMPENSATION

 

Overview of Compensation Practices

 

Our executive compensation program will be administered by the board of directors until the compensation committee is formed.

 

Generally, we intend to compensate our executive officers with a compensation package that is designed to drive Company performance to maximize stockholder value while meeting our needs and the needs of our executives. The following are objectives we consider:

 

·Alignment — to align the interests of executives and stockholders through equity-based compensation awards;

 

·Retention — to attract, retain and motivate highly qualified, high performing executives to lead our growth and success; and

 

·Performance — to provide, when appropriate, compensation that is dependent upon the executive’s achievements and the Company’s performance.

 

In order to achieve the above objectives, our executive compensation philosophy is guided by the following principles:

 

·Rewards under incentive plans are based upon our short-term and longer-term financial results and increasing stockholder value;

 

·Executive pay is set at sufficiently competitive levels to attract, retain and motivate highly talented individuals who are necessary for us to achieve our goals, objectives and overall financial success;

 

·Compensation of an executive is based on such individual’s role, responsibilities, performance and experience; and

 

·Annual performance of the Company and the executive are taken into account in determining annual bonuses with the goal of fostering a pay-for-performance culture.

 

Compensation Elements

 

We intend to compensate our executives through a variety of components, which may include a base salary, annual performance-based incentive bonuses, equity incentives, and benefits and perquisites, in order to provide our executives with a competitive overall compensation package. The mix and value of these components are impacted by a variety of factors, such as responsibility level, individual negotiations and performance and market practice. 

 

Accounting and Tax Considerations

 

We consider the accounting and tax implications of all aspects of our executive compensation strategy and, so long as doing so does not conflict with our general performance objectives described above, we strive to achieve the most favorable accounting and tax treatment possible to the Company and our executive officers.

 

Process for Setting Executive Compensation; Factors Considered

 

When making pay determinations for named executive officers, the board will considers a variety of factors including, among others: (1) actual Company performance as compared to pre-established goals, (2) individual executive performance and expected contribution to our future success, (3) changes in economic conditions and the external marketplace, (4) prior years’ bonuses and long-term incentive awards, and (5) in the case of executive officers, other than Chief Executive Officer, the recommendation of our Chief Executive Officer, and in the case of our Chief Executive Officer, his negotiations with our board. No specific weighting is assigned to these factors nor are particular targets set for any particular factor. Ultimately, the board will use its judgment and discretion when determining how much to pay our executive officers and will sets the pay for such executives by element (including cash versus non-cash compensation) and in the aggregate, at levels that it believes are competitive and necessary to attract and retain talented executives capable of achieving the Company’s long-term objectives.

 

Summary Compensation Table

 

The information included in the Summary Compensation Table below reflects compensation earned from Chanticleer during fiscal years ended December 31, 2019 and 2018 by (i) each person serving as a Chanticleer principal executive officer (“PEO”) or acting in a similar capacity during Chanticleer’s fiscal year ended December 31, 2019; (ii) Chanticleer’s two most highly compensated executive officers other than our PEO who were serving as executive officers on December 31, 2019 and whose total compensation exceeded $100,000 and (iii) up to two additional individuals for whom disclosure would have been provided under (ii) but for the fact that the individual was not serving as an executive officer as of December 31, 2019. The persons covered by (i), (ii), and (iii) of the preceding sentence are collectively referred to as the “named executive officers” in this section (“NEO”).

 

Amergent’s NEOs have the titles. All references in the following tables to equity awards are to equity awards granted by Chanticleer in respect of Chanticleer common stock.

 

The historical compensation shown below was determined by Chanticleer. Employment agreements of Patrick Harkleroad and Frederick L. Glick were assumed by Amergent and their compensation is prescribed in these Agreements.

 

Future compensation levels for other may be determined based on the compensation policies, programs and procedures to be established by Amergent’s board of directors or, when formed, the compensation committee of the board of directors.

 

Name and Principal Position   Year   Salary     Bonus     Stock Awards     All Other Compensation     Total  
Michael D. Pruitt (1)   2019   $ 264,997       -       -       -     $ 264,997  
Chief Executive Officer   2018   $ 290,522       -       -       -     $ 290,522  
                                                                   
Frederick L. Glick (2)   2019   $ 247,554       -       -       -     $ 247,554  
President   2018   $ 31,250       -       -       -       31,250  
                                             
Patrick Harkleroad (3)   2019   $ 152,462       -       -       -     $ 152,462  
Chief Financial Officer   2018   $ -       -       -       -     $ -  

 

(1) Mr. Pruitt sat on the Hooters of America, LLC board of directors until July 2019. The Company received annual payments of $100,000 from Hooters of America, LLC while Mr. Pruitt served on its board.
(2) Mr. Glick was appointed to serve as President effective November 16, 2018.
(3) Mr. Harkleroad was appointed to serve as Chief Financial Officer effective January 21, 2019.

 

Assumed Employment Agreements

 

Patrick Harkleroad, Chief Financial Officer

 

Mr. Harkleroad’s at-will employment agreement continues through December 31, 2020, at which point it renews automatically for additional one year terms unless terminated by the Company or Mr. Harkleroad with or without notice, and with or without cause, pursuant to the terms of the agreement.

 

Mr. Harkleroad receives a base salary at a rate of $155,000 per year. Mr. Harkleroad will receive equity awards in Amergent pursuant to the Company’s equity incentive plan that are comparable to equity awards he held in Chanticleer. The agreement contains confidentiality, invention assignment and non-solicitation covenants. Mr. Harkleroad is also be entitled to participate in customary benefits that the Company offers to its executive officers.

 

Frederick L. Glick, President

 

Mr. Glick’s at-will employment agreement continues through December 31, 2020, at which point it renews automatically for additional one year terms unless terminated by either Chanticleer or Mr. Glick with or without notice, and with or without cause, pursuant to the terms of the agreement.

 

Pursuant to the agreement, Mr. Glick receives a base salary at the rate of $250,000 per year. Mr. Harkleroad will receive equity awards in Amergent pursuant to the Company’s equity incentive plan that are comparable to equity awards he held in Chanticleer. The agreement provides for full acceleration of equity grants triggered by a “change of control”, as defined in the agreement and contains confidentiality, invention assignment and non-solicitation covenants.

 

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Outstanding Equity Awards at Fiscal Year-End Table

 

The following table reflects information concerning unexercised options, stock that has not vested, and equity incentive plan awards for each of Chanticleer’s NEOs outstanding as of the end of December 31, 2019.

 

Name   Option Awards   Stock Awards  
    Number of securities underlying unexercised options (#) exercisable     Number of securities underlying unexercised options (#) unexercisable     Equity incentive plan awards: number of securities underlying unexercised unearned options (#)     Option exercise price ($)     Option expiration date   Number of shares or units of stock that have not vested (#)     Market value of shares or units of stock that have not vested (#)     Equity incentive plan awards: number of unearned shares, units or other rights that have not vested (#)     Equity incentive plan awards: market or payout value of unearned shares, units or other rights that have not vested ($)  
Michael D. Pruitt     -       -       -       -     -     -       -       -       -  
                                                                                              
Frederick L. Glick     -       -       10,000       3.50     11/15/2023                     20,000       (1 )
      -       -       10,000       4.50     11/15/2023                                
                                                                     
Patrick Harkleroad     -       -       5,000       3.50     1/6/2024                                
      -       -       5,000       4.50     1/6/2024                                

 

(1) Restricted stock award units do not have an exercise price and therefore are not included in the calculation of the weighted-average exercise price.

 

Director Compensation Table

 

The following table reflects compensation earned for services performed in 2019 by members of Chanticleer’s board who were not employees; provided however Amergent has agreed to assume any accrued and unpaid fees. Any director who is also an employee, such as Mr. Pruitt, does not receive any compensation for service as a director. The compensation received by Mr. Pruitt as an employee is shown above in the Summary Compensation Table. Chanticleer reimbursed all directors for expenses incurred in their capacity as directors.

 

Name   Director Fees Earned or Paid in Cash (1)     Stock Awards     Option Awards     Total  
                         
Keith J. Johnson   $ 28,000           -           -     $ 28,000  
                                 
Neil G. Kiefer   $ 28,000       -       -     $ 28,000  
                                 
Russell J. Page   $ 28,000       -       -     $ 28,000  
                                 
J. Eric Wagoner   $ 28,000       -       -     $ 28,000  

 

(1) Director fees earned in 2019 are accrued and unpaid; these fees will be paid in 2020 by Amergent. This chart reflects Directors as of December 31, 2019.

 

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ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.

 

Director Independence

 

Chanticleer’s board performed a review to determine the independence of its members and made a subjective determination as to each of these independent directors that no transactions, relationships, or arrangements exist that, in the opinion of the board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In making these determinations, Chanticleer’s board considered several factors including the purchase or sales of goods and/or services between the company and an entity with which a director is affiliated, and reviewed information provided by the directors and our management with regard to each director’s business and personal activities as they may relate to us and our management. As a result of this review, the Chanticleer board determined that Messrs. Johnson, Kiefer and Wagoner are “independent directors” as defined under NASDAQ rules. Amergent’s board intends to perform a review of board independence during the third quarter of 2020.

 

Certain Relationships and Related Transactions

 

Related Person Transactions

 

Due to Related Parties

 

As of March 31, 2020, December 31, 2019, December 31, 2018 and December 31, 2017 the Company owed amounts pursuant to non-interest-bearing loans from Chanticleer Investors, LLC. The amounts owed by the Company are as follows:

 

   March 31, 2020   December 31, 2019   December 31, 2018   December 31, 2017 
                 
Chanticleer Investors, LLC  $16,000   $16,000   $185,726   $191,850 
Total  $16,000   $16,000   $185,726   $191,850 

 

The amount from Chanticleer Investors, LLC is related to cash distributions received from Chanticleer Investors, LLC’s interest in Hooters of America which is payable to the Company’s co-investors in that investment.

 

Transactions with Board Members

 

Larry S. Spitcaufsky, a significant shareholder and former member of Chanticleer’s board of directors, was also a lender to Chanticleer for $2 million of Chanticleer’s $6 million in secured debentures. Chanticleer made payments of interest to Mr. Spitcaufsky of $84,000 and $66,222 for the years ended December 31, 2018 and 2017, respectively, as required under the secured debentures.

 

Chanticleer has also entered into a franchise agreement with entities controlled by Mr. Spitcaufsky providing him with the franchise rights for Little Big Burger in the San Diego area and an option for southern California. Chanticleer received franchise fees totaling $60,000 under this arrangement during 2017. Chanticleer received royalties of $9,178 and $0 from the Little Big Burger franchises controlled by Mr. Spitcaufsky in 2018 and 2017, respectively. Subsequent to December 31, 2018, Mr. Spitcaufsky closed both of his franchised Little Big Burger restaurants in 2019.

 

In connection with a securities purchase agreement with Chanticleer dated May 3, 2018, Mr. Spitcaufsky subscribed for 70,000 shares of Chanticleer’s common stock and received an equal number of warrants to purchase shares of common stock. Michael D. Pruitt, the Company’s Chairman and Chief Executive Officer also participated in the offering.

 

ITEM 8. LEGAL PROCEEDINGS

 

Pursuant to the Merger Agreement, related Contribution Agreement and Distribution Agreement, Amergent assumed all liabilities of Chanticleer that were not paid-off at the effective time of the Merger.

 

Pursuant to the Indemnification Agreement, Amergent agreed to fully indemnify and hold harmless each of Chanticleer and Sonnet, and each of their respective, directors, officers, stockholders and managers who assumes such role upon or following the closing of the Merger against all actual or threatened claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, administrative, investigative or otherwise, related to the Spin-Off Business prior to or in connection with its disposition to Amergent. In addition, Amergetn acquired the Tail Policy to cover its indemnification obligations to the indemnitees under the Indemnification Agreement. The Tail Policy of up to $3.0 million was prepaid in full by Amergent, at no cost to the indemnitees, and will be effective for six years following the consummation of the disposition.

 

As part of the Merger, all of the assets and liabilities of Chanticleer and its subsidiaries were contributed to Amergent.

 

Various subsidiaries of Amergent are delinquent in payment of payroll taxes to taxing authorities. As of March 31, 2020, approximately $2.6 million of employee and employer taxes (including estimated penalties and interest) was accrued but not remitted in years prior to 2019 to certain taxing authorities by certain of these subsidiaries for cash compensation paid. As a result, these subsidiaries are liable for such payroll taxes. These subsidiaries have received warnings and demands from the taxing authorities and management is prioritizing and working with the taxing authorities to make these payments in order to avoid further penalties and interest. Failure to remit these payments promptly could result in increased penalty fees.

 

In connection with the Merger, former executive officer of Chanticleer, Richard Adams, filed a claim for damages against American Roadside Burgers, Inc., Chanticleer’s wholly owned subsidiary for unpaid severance. Mr. Adams received timely notification of non-renewal of his employment agreement, which expired December 31, 2019, but argues he is entitled severance benefits triggered by the Merger. Amergent has been advised by legal counsel that Mr. Adam’s claim is frivolous and that he has a low probability of success. Mr. Adams complaint alleges damages in an amount over $25,000.

 

Amergent is not aware of any other claims arising from the Merger or other assumed claims that it deems as claims outside the ordinary course of business or otherwise, at this time, material.

 

From time to time, Amergent may be involved in legal proceedings and claims that arise in the ordinary course of business, are may generally be covered by insurance or otherwise determined to be immaterial to the company’s financial condition, results of operations or cash flows.

 

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ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS

 

As of March 31, 2020, we had 14,282,736 shares of our common stock issued and outstanding, respectively, and approximately 185 shareholders of record and approximately 2,200 to 2,500 shareholders.

 

Amergent’s common stock is not publicly traded and there is currently no public market for our common stock. We have filed a Form 211 with the Financial Industry Regulatory Authority and are applying to have our common stock authorized for quotation on the OTCQX market of the OTC Markets Group, Inc. but there are no assurances that our common stock will be quoted on the OTCQX or any other quotation service, exchange or trading facility. An active public market for our common stock may not develop or be sustained after the distribution. If an active public market does not develop or is not sustained, it may be difficult for our stockholders to sell their shares of common stock at a price that is attractive to them, or at all. We intend to request the symbol “BURG” to be issued in connection with the initiation of quotation on the OTCQX.

 

We do not currently expect to pay dividends on our common stock. The payment of any dividends in the future, and the timing and amount thereof, is within the discretion of our board of directors. The board’s decisions regarding the payment of dividends will depen