Charlie's Holdings, Inc. 10-K

ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS   Our common stock is traded on the OTC Pink Marketplace under the symbol “CHUC”. Prior to July 3, 2019, our common stock was traded on the OTC Pink Marketplace under the symbol “TRUU”.         -27- Table of Contents     The following table sets forth high and low sales prices for our common stock for the calendar quarters indicated as reported by the OTC Pink Marketplace. These prices represent quotations between dealers without adjustment for retail markup, markdown, or commission and may not represent actual transactions.       High     Low   2020             First Quarter ended March 31, 2020   $ 0.0025     $ 0.0017   Second Quarter ended June 30, 2020   $ 0.0023     $ 0.0016   Third Quarter ended September 30, 2020   $ 0.0045     $ 0.0018   Fourth Quarter ended December 31, 2020   $ 0.0041     $ 0.0025                     2019                 First Quarter ended March 31, 2019   $ 0.01     $ 0.002   Second Quarter ended June 30, 2019   $ 0.08     $ 0.004   Third Quarter ended September 30, 2019   $ 0.04     $ 0.0042   Fourth Quarter ended December 31, 2019   $ 0.01     $ 0.0014                     2018                 First Quarter ended March 31, 2018   $ 0.03     $ 0.01   Second Quarter ended June 30, 2018   $ 0.03     $ 0.01   Third Quarter ended September 30, 2018   $ 0.01     $ 0.01   Fourth Quarter ended December 31, 2018   $ 0.01     $ 0.01     Holders   At March 23, 2021, there were 19,638,493,279 shares of our common stock outstanding, and approximately 437 stockholders of record. At March 23, 2021, there were 190,690 shares of our Series A Preferred outstanding held by 107 stockholders of record.   Transfer Agent   Our Transfer Agent and Registrar for our common stock is Equiniti Stock Transfer located in Denver, Colorado.   ITEM 6. SEL E CTED FINANCIAL DATA   As a “smaller reporting company”, as defined by the rules and regulations of the SEC, we are not required to provide this information.   ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS   You should read the following discussion and analysis in conjunction with our financial statements, including the notes thereto contained in this Annual Report. This discussion contains forward-looking statements that involve risks, uncertainties and assumptions. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of a variety of certain factors, including those set forth under “Risk Factors Associated with Our Business” and elsewhere in this Annual Report.     Overview   Our objective is to become a significant leader in the rapidly growing, global e-cigarette segment of the broader nicotine related products industry. Through Charlie’s, we formulate, market and distribute branded e-cigarette liquid for use in both open and closed e-cigarette and vaping systems. Charlie’s products are mostly produced domestically through contract manufacturers for sale through select distributors, specialty retailers and third-party online resellers throughout the United States, as well as more than 80 countries worldwide. Charlie’s primary international markets include the United Kingdom, Italy, Spain, Belgium, Australia, Sweden and Canada. In June 2019, we launched distribution, through Don Polly, of certain premium vapor, tincture and topical wellness products containing hemp-derived cannabidiol (“ CBD ”) and we currently intend to develop and launch additional products containing hemp-derived CBD in the future.       -28- Table of Contents     Industry Specific Challenges   Beginning in late 2019, our industry experienced significant news stories and health alerts related to flavored nicotine vaping, leading to some states banning the sale of flavored nicotine products and causing the Food and Drug Administration (“ FDA ”) to review its policies on controlling the sale of these products. Initial research indicated that a vitamin E acetate related compound could be causing the health-related issues. On November 8, 2019, officials at the Centers for Disease Control and Prevention (“ CDC ”) reported a breakthrough in the investigation into the outbreak of vaping-related lung injuries. T he CDC's principal deputy director, Dr. Anne Schuchat, in fact stated that "vitamin E acetate is a known additive used to dilute liquid in e-cigarettes or vaping products that contain THC”, s uggesting the possible culprit for the series of lung injuries across the U.S. A ll of Charlie's e-liquid products are tested by third party laboratories which have confirmed that none of our products contain any vitamin E acetate or Tetrahydrocannabinol (“ THC ”).   However, these developments have had a negative effect on our sales since mid-September 2019 (see further discussion below) and therefore, in response to these developments and while government regulators are formulating future polices, management has adopted the following plan of operation.   First, we plan to increase the sales of our CBD related products, including topicals and ingestibles. We feel there is a significant upside in the CBD space, and we have begun to focus on numerous vertical markets for the sale of our isolate, full and broad-spectrum products. These vertical markets include, but aren't limited to the medical and wellness markets. We have also dedicated an internal team as well as additional financial resources to increase direct-to-consumer e-commerce sales of CBD products.   Secondly, we continue to see a significant opportunity for sales growth in international markets for our e-liquid and other vapor products. Presently, approximately 20% of our vapor product sales come from the international market and we are well positioned to increase those sales in the countries that we presently sell, and in additional overseas markets, as we have already built an international distribution platform.   Most importantly, we feel that the e-liquid and other vapor products will continue to be a significant growth opportunity, once all the rightful regulatory changes have been made. We are continuing with our plan to obtain marketing authorization for certain of our products through the completion of a Premarket Tobacco Application (" PMTA "), which we submitted in September 2020. Obtaining a marketing order from the United States Food and Drug Administration ( “FDA ” ) would, in our opinion, help to remediate the disruption caused by any perceived health issues related to vaping, and further position the Company as a trusted, industry leader. We feel that a significant amount of our competitors will not have the resources and/or expertise to complete the extensive and costly PMTA process and that once complete, we will be able to benefit from being one of only a select group of companies operating in the flavored vapor products space.   Impact of COVID-19   The outbreak of a novel strain of COVID-19 (“ Coronavirus ”) which was identified in Wuhan, China around December 2019, has had a negative impact on the global economy and the markets in which we operate. Beginning in March 2020, the Company transitioned nearly all employees to a remote working environment for their safety and to protect the integrity of Company operations. We have updated certain sales, accounting and administrative processes, and corresponding information technology platforms, in an effort to help facilitate the virtual work environment in which we now operate. During 2020, we engaged in periodic, informal testing of our business operations, and we do not believe that our financial position, work efficiency and overall operational integrity have been materially affected. However, we recognize that a certain degree of employee enthusiasm, teamwork, creativity, and support is normally generated by being present at a physical location, and we believe that prolonged remote working may have a negative impact over time on our business, and on employee productivity. Our Denver, CO office and Huntington Beach, CA warehouse locations have fully returned to on premise status, while our corporate headquarters in Costa Mesa, CA remains remote for most employees. We will continue to monitor the COVID-19 situation in all regions we operate and will maintain strict adherence to local health guidelines and mandates. We may have to take further actions that we determine are in the best interests of our employees or as required by federal, state, or local authorities.   Supply Chain   Our ability to manufacture products is dependent on the availability of certain raw materials and components that our contract manufacturers purchase from Europe and China. In February 2020, we started to experience disruptions across several key areas of our global supply chain. Our domestic and international contract manufacturers source many of our high-quality flavorings from suppliers located in Italy, a region that was severely affected by COVID-19-related restrictions throughout most of 2020. Mandated stay-at-home orders in this region ultimately caused increased manufacturing lead times and delayed customer order deliveries for certain of our products, resulting in revenue declines.   We have been successful in mitigating some of the supply chain risks though bulk purchases of certain flavorings and components and adjusting the production allocation amongst our contract manufacturers. Shifting production to contract manufacturers in regions with fewer restrictions and/or an enhanced ability to procure larger supplies of raw materials has helped alleviate disruptions in our supply chain.   If a resurgence of COVID-19 and associated shutdowns were to occur in Europe or China, this would likely have an adverse effect on our ability to manufacture and sell our products due to related shortages of materials and components. Depending on the severity of any such future shutdowns, we could experience a materially diminished ability to produce products and be exposed to significantly longer lead times. This would result in delayed or reduced revenue from the affected products in production and potentially higher operating costs.   -29- Table of Contents     Sales and Marketing   Our sales and marketing efforts have also been affected by COVID-19. Most of our sales through Charlie’s and Don Polly are to resellers of our products, typically distributors or brick and mortar retail locations. Stay-at-home mandates across the U.S. and internationally created a significant challenge for these customers to maintain continuity in their businesses, and therefore we experienced lower sales volumes as a result. However, customers for our vapor products have proven to be more resilient during these challenging times and have been able to maintain more consistent performance. The Company did experience increased order volume for CBD wellness products through its ecommerce platform because of consumers seeking alternative means to purchase our products.   Historically, most of our business-to-business sales and marketing efforts have been generated through industry events in both the vapor products and hemp-derived products spaces. Beginning in 2019, we also initiated a program of in-store marketing events to help facilitate relationship building and sell-through for our retail partners. With the suspension of all trade shows and most business travel, our new customer pipeline has been negatively impacted, which has negatively affected and may continue to negatively affect our sales in the coming quarters. In response, we have shifted our focus to digital marketing campaigns aimed at customer engagement and education. We also continue to allocate additional resources towards certain key distributors and retail partners that are better positioned to interact directly with our consumers and continue growing our brands.   Risks and Uncertainties   The Company operates in an environment that is subject to rapid changes and developments in laws and regulations that could have a significant impact on the Company’s ability to sell its products. Federal, state, and local governmental bodies across the United States have indicated that flavored e-cigarette liquid, vaporization products and certain other consumption accessories may become subject to new laws and regulations at the federal, state and local levels. Beginning in September 2019, certain states temporarily banned the sale of flavored e-cigarettes, and on January 2, 2020, the FDA issued an enforcement policy effectively banning the sale of flavored cartridge-based e-cigarettes marketed primarily by large manufacturers without prior authorization from the FDA. The application of any new laws or regulations that may be adopted in the future, at a federal, state, or local level, directly or indirectly implicating flavored e-cigarette liquid and products used for the vaporization of nicotine could significantly limit the Company’s ability to sell such products, result in additional compliance expenses, and/or require the Company to change its labeling and/or methods of distribution. Any ban of the sale of flavored e-cigarettes directly limits the markets in which the Company may sell its products. In the event the prevalence of such bans and/or changes in laws and regulations increase across the United States, or internationally, the Company’s business, results of operations and financial condition could be adversely impacted. In addition, the Company is presently seeking to obtain marketing authorization for certain of its nicotine-based e-liquid products. Our PMTA applications were submitted in September 2020 on a timely basis, which if approved, will allow the Company to continue to sell its products in the United States. The Company is also seeking additional financing to support potential future PMTA related expenses and general working capital. There is no assurance that regulatory approval to sell our products will be granted or that we can raise the additional financing required, and if not, this could have a significant impact on our sales.   On March 11, 2020, the World Health Organization designated the ongoing and evolving COVID-19 outbreak as a pandemic. The outbreak has caused substantial disruption in international and U.S. economies and markets as it continues to spread. The outbreak is having a temporary adverse impact on our industry as well as our business, with regards to certain supply chain disruptions and sales volume. While the disruption from COVID-19 is currently expected to be temporary, there is uncertainty around the duration.    Recent Developments   Share Exchange   On April 26, 2019 (the “ Closing Date ”), we entered into a Securities Exchange Agreement with each of the former members (“ Members ”) of Charlie’s, and certain direct investors in the Company (“ Direct Investors ”), pursuant to which we acquired all outstanding membership interests of Charlie’s beneficially owned by the Members in exchange for the issuance by the Company of units, with such units consisting of an aggregate of (i) 15,655,538,349 shares of common stock on an as-converted basis (which includes the issuance of an aggregate of 1,396,305 shares of a newly created class of Series B Convertible Preferred Stock, par value $0.001 per share (“ Series B Preferred ”), convertible into an aggregate of 13,963,047,716 shares of common stock, issued to certain individuals in lieu of common stock); (ii) 206,249 shares of a newly created class of Series A Convertible Preferred Stock, par value $0.001 per share (“ Series A Preferred ”), convertible into an aggregate of 4,654,349,239 shares of common stock; and (iii) warrants to purchase an aggregate of 3,102,899,493 shares of common stock (the “ Investor Warrants ”) (the “ Share   Exchange ”). As a result of the Share Exchange, Charlie’s became a wholly owned subsidiary of the Company.   Immediately prior to, and in connection with, the Share Exchange, Charlie’s consummated a private offering of membership interests that resulted in gross proceeds to Charlie’s of approximately $27.5 million (the “ Charlie’s Financing ”). Katalyst Securities LLC (“ Katalyst ”) acted as the sole placement agent in connection with the Charlie’s Financing pursuant to an Engagement Letter entered into by and between Katalyst, Charlie’s and the Company on February 15, 2019, which was amended on April 16, 2019 (“ Amended Engagement Letter ”). As consideration for its services in connection with the Charlie’s Financing and Share Exchange, the Company issued to Katalyst and its designees five-year warrants to purchase an aggregate of 930,869,848 shares of common stock at a price of $0.0044313 per share (the “ Placement Agent Warrants ”). The Placement Agent Warrants have substantially the same terms as those set forth in the Investor Warrants.   -30- Table of Contents     As additional consideration for advisory services provided in connection with the Charlie’s Financing and the Share Exchange, the Company issued an aggregate of 902.7 million shares of Common Stock (the “ Advisory Shares ”), including to a member of the Company’s Board of Directors, pursuant to a subscription agreement. The fair value of a share of common stock was $0.0032 which is based upon a valuation prepared by the Company on the date of the Share Exchange.                  The Share Exchange resulted in a change of control of the Company, with the Members and Direct Investors owning approximately 86.1% of the Company’s outstanding voting securities immediately after the Share Exchange, and the Company’s current stockholders beneficially owning approximately 13.9% of the issued and outstanding voting securities, which includes the Advisory Shares. Following the Share Exchange, Ryan Stump and Brandon Stump, the founders of Charlie’s and the Company’s Chief Executive Officer and Chief Operating Officer, respectively, held in excess of 50% of the Company’s issued and outstanding voting securities.   Following the consummation of the Share Exchange, the business operations of the Company consist of those of Charlie’s, which is principally engaged in formulating, marketing and distributing branded e-cigarette liquid and other products for use in nicotine-only e-cigarette and vaping systems.   Launch of CBD Products   In June 2019, we introduced, through Don Polly, full-spectrum hemp extract and CBD isolate wellness products across a variety of formats and with different strengths. Our initial launch consisted of six vapor, eight tincture and two topical product variations. The newly released products were launched under the Pachamama™ brand by way of a licensing agreement between Don Polly and Charlie’s, entered on April 25, 2019. In the near term, we expect to expand the hemp-derived CBD-based products line to include additional CBD isolate products and THC-free, broad spectrum hemp extract products currently in development.   Pachamama™ CBD products are currently available in the U.S., Mexico, U.K., Switzerland and Australia, and we expect to continue expanding both our domestic and international distribution efforts.   Filing of Amended and Restated Charter; Automatic Conversion of Series B Preferred   On June 28, 2019, we amended and restated our Articles of Incorporation (the “ Amended and Restated Charter ”) to (i) change our corporate name to Charlie’s Holdings, Inc. and (ii) increase the number of shares authorized as common stock from 7.0 billion to 50.0 billion shares. The Amended and Restated Charter was approved by our Board of Directors and holders of a majority of our outstanding voting securities on May 8, 2019, and the Amended and Restated Charter was filed with the State of Nevada on June 28, 2019.   As a result of the filing of the Amended and Restated Charter and the increase of our authorized common stock to 50.0 billion shares, all 1,396,305 outstanding shares of Series B Preferred automatically converted into a total of 13,963,047,716 shares of common stock in accordance with the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock.   Default on Payment of Dividend   The Company was required to pay a one-time dividend equal to eight percent (8%) of the stated value of its Series A Preferred, equal to $1,650,000 (“ Dividend Amount ”), which Dividend Amount was required to be paid in cash on or before April 25, 2020. The Company failed to pay the required dividend and has requested that holders of more than 50% of the Series A Preferred issued and outstanding (“ Required Holders ”) consent to an amendment to the Series A Preferred to allow the Company to pay such Dividend Amount in shares of the Company’s Common Stock. To date, the Company has not obtained such consent from the Required Holders. In the event the Company is unable to obtain consents from the Required Holders to pay the Dividend Amount in shares of Common Stock in lieu of cash, or does not otherwise pay such Dividend Amount in cash or obtain a waiver, any claims asserted by the holders of the Series A Preferred could have a material adverse effect on the Company’s financial condition.   -31- Table of Contents     On August 13, 2020, the Company received a formal notice of default from a holder of its Series A Preferred requesting full payment of dividends due and payable with respect to the Series A Preferred held by such holder on or before August 23, 2020 (“ Dividend Default ”). As disclosed, the aggregate amount of dividends due and payable to holders of the Series A Preferred is $1,650,000.   Small Business Administration Loan Programs   On April 30, 2020, Charlie's, a wholly owned subsidiary of the Company, received approval to enter into a U.S. Small Business Administration (" SBA ") Promissory Note (the " Charlie's PPP Loan ") with TBK Bank, SSB (the " SBA Lender "), pursuant to the Paycheck Protection Program (" PPP ") of the Coronavirus Aid, Relief, and Economic Security Act (the " CARES Act ") as administered by the SBA (the " PPP Loan Agreement ").   The Charlie's PPP Loan provides for working capital to CCD in the amount of $650,761. The Charlie's PPP Loan will mature on April 30, 2022 and will accrue interest at a rate of 1.00% per annum. Payments of principal and interest will be deferred for six months from the date of the Charlie's PPP Loan, or until November 30, 2020. Interest, however, will continue to accrue during this time.   On April 14, 2020, Don Polly also obtained a loan pursuant to the PPP enacted under the CARES Act (the " Polly PPP Loan " and together with the Charlie's PPP Loan, the " PPP Loans ")) from Community Banks of Colorado, a division of NBH Bank (the " Polly Lender "). The Polly PPP Loan obtained by Don Polly provides for working capital to Don Polly in the amount of $215,600. The Polly PPP Loan will mature on April 14, 2022 and will accrue interest at a rate of 1.00% per annum. Payments of principal and interest will be deferred for six months from the date of the Polly PPP Loan, or until November 14, 2020. Interest, however, will continue to accrue during this time.   The aforementioned PPP Loans were made under the PPP enacted by Congress under the CARES Act. The CARES Act (including the guidance issued by SBA and U.S. Department of the Treasury) provides that all or a portion of the PPP Loans may be forgiven upon request from the respective borrower to the SBA Lender or the Polly Lender, as the case may be, subject to requirements in the PPP Loans and under the CARES Act.   On February 19, 2021 Don Polly received notice from the Polly Lender, that its PPP Loan was fully repaid, and its promissory note was cancelled as a result of the loan forgiveness process set forth by the U.S. Small Business Administration. There is no further action required on the part of Don Polly to satisfy this liability.   On June 24, 2020, SBA authorized (under Section 7(b) of the Small Business Act, as amended) an Economic Injury Disaster Loan (“ EID Loan ”) to Don Polly in the amount of $150,000. Installment payments, including principal and interest of $731 monthly will begin twelve months from date of the EID Loan. The balance of principal and interest will be payable thirty years from the date of the EID Loan and interest will accrue at the rate of 3.75% per annum.   PMTA Submission   During the quarter ended September 30, 2020, the United States Food and Drug Administration's (" FDA ") Center for Tobacco Products informed us that our PMTA has received a valid submission tracking number, passed the FDA’s filing review phase, and recently entered the substantive review phase. To date, Charlie’s has invested over $4.4 million for our initial PMTA submission. We engaged a team of more than 200 professionals, including doctors, scientists, biostatisticians, data analysts, and numerous contract research organizations to create our comprehensive PMTA submission. This news highlights our progress toward achieving full regulatory compliance and our goal of providing customers with a trusted product portfolio. We are confident that during the substantive review phase of the PMTA process, the FDA will recognize that our submission is both distinguished and suitable for approval.   Red Beard Holdings, LLC Note Payable   On April 1, 2020, the Company, Charlie's and its VIE, Don Polly, issued a secured promissory note (the " Red Beard Note ") to one of the Company's largest stockholders, Red Beard Holdings, LLC (" Red Beard ") in the principal amount of $750,000 (the " Principal Amount "), which Note is secured by all assets of the Company pursuant to the terms of a Security Agreement entered into by and between the Company and Red Beard (the " Red Beard Note Financing ").   The Red Beard Note required the payment of the Principal Amount and guaranteed minimum interest in the amount of $75,000 on or before the earlier date of (i) a Liquidity Event, as defined under the terms of the Red Beard Note; or (ii) October 1, 2020. In addition, if there was an occurrence of an event of default, then, in addition to the guaranteed minimum interest, the Principal Amount and unpaid interest and unpaid other amounts under the Red Beard Note shall, at the election of the Red Beard in its sole and absolute discretion, bear interest at the lesser of a rate equal to 20% per annum or the maximum default rate. Such interest would accrue daily commencing on occurrence of such event of default until payment in full of the Principal Amount, together with all accrued and unpaid interest and other amounts which may become due hereunder, has been made.   -32- Table of Contents   On August 27, 2020, the Company’s Board of Directors, entered into Amendment No. 1 to Secured Promissory Note and Security Agreement (“ Amended Red Beard Note ”), by and between the Company and Red Beard. Pursuant to the Amended Red Beard Note, the terms of the Red Beard Note held by Red Beard were amended as follows (i) the Principal Amount under the Red Beard Note was increased from $750,000 to $1,400,000 and (ii) the guaranteed minimum interest due upon maturity of the Red Beard Note was increased from $75,000 to $100,000. All other terms of the respective Red Beard Note remain in full force and effect.   On September 30, 2020, the Company’s Board of Directors entered into Amendment No. 2 to Secured Promissory Note and Security Agreement ( “Second Amended Red Beard Note” ), by and between the Company and Red Beard. The Red Beard Note, as amended by Amendment 1, was further amended by the Second Amended Red Beard Note to amend the definition of the “Maturity Date” in the Red Beard Note to mean November 1, 2020.   On October 29, 2020, the Company entered into Amendment No. 3 (" Third Amended Red Beard Note "), by and between the Company and Red Beard. The terms of the Second Amended Red Beard Note held by Red Beard have been amended to revise the maturity date from November 1, 2020 to December 1, 2020. Furthermore, Red Beard has agreed to waive certain rights upon the occurrence of an Event of Default, as defined in the Amended Red Beard Note, which was triggered by the Company’s receipt of that certain notice of default, dated August 13, 2020, from certain holders of the Company’s Series A Preferred.   On December 1, 2020, the Company entered into Amendment No. 4 to Secured Promissory Note and Security Agreement (“ Fourth Amended Red Beard Note ”), by and between the Company and Red Beard. The Fourth Amended Red Beard Note was retroactively effective as of December 1, 2020, therefore avoiding an event of default. The terms of the Third Amended Red Beard Note have been amended to revise the maturity date from December 1, 2020 to January 1, 2021, and the guaranteed minimum interest has been increased from $100,000 to $125,000.   On January 19, 2021, the Company entered into Amendment No. 5 to Secured Promissory Note and Security Agreement ( “Fifth Amended Red Beard Note” ), by and between the Company and Red Beard. The Fifth Amended Note is retroactively effective as of January 1, 2020. The terms of the Amended Note held by Red Beard have been amended to revise the maturity date from January 1, 2021 to February 15, 2021, and the guaranteed minimum interest has been increased from $125,000 to $150,000. Pursuant to the Fifth Amended Red Beard Note, Red Beard agreed to waive its rights to declare a default under the Red Beard Note due to the Dividend Default.   On March 24, 2021, the Company and Red Beard entered into a Satisfaction and Release (the " Red Beard Release "), pursuant to which the Company made a payment to Red Beard in the amount of $1.55 million in exchange for an acknowledgment of satisfaction and full release of the Company by Red Beard from liability and obligations arising under the Red Beard Note.   Basis of Presentation   The consolidated financial statements contained within this Annual Report and the disclosure in this Management’s Discussion and Analysis of Financial Condition and Results of Operations with respect to the years ended December 31, 2020 and 2019 have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (the “ SEC ”). In the opinion of the Company, all adjustments, including normal recurring adjustments necessary to present fairly the financial position, results of operations, and cash flows of the Company for the interim period have been included.   The Share Exchange is accounted for as a reverse recapitalization under U.S. GAAP because the primary assets of the Company were nominal following the close of the Share Exchange. Charlie’s was determined to be the accounting acquirer based upon the terms of the Share Exchange and other factors including: (i) Charlie’s stockholders and other persons holding securities convertible, exercisable or exchangeable directly or indirectly for Charlie’s membership units now own approximately 32%, on a fully diluted basis, of the Company’s outstanding securities immediately following the effective time of the Share Exchange, (ii) individuals associated with Charlie’s now hold a majority of the seats on the Company’s Board of Directors and (iii) Charlie’s management holds all key positions in the management of the combined Company.     The disclosures in this Annual Report with respect to the years ended December 31, 2020 and 2019, including the consolidated financial statements contained herein, are based on Charlie’s historical financial statements and the Company’s financial activity beginning April 26, 2019, as adjusted, to give effect to Charlie’s reverse recapitalization of the Company and the Charlie’s Financing. In addition, from the period April 26, 2019 until December 2020, there were minimal costs and revenue associated with the Bazi product line which are included in the consolidated financial statements. We do not intend to continue to produce and sell the Bazi product line, and these costs and expenses are nominal and will continue to be so in the future. The operating results of Don Polly for the year ended December 31, 2020 are also included.   -33- Table of Contents   Historical financial information presented prior to April 26, 2019 is that of Charlie’s only, while financial information presented after April 26, 2019 includes Charlie’s, Don Polly, Bazi Drinks and the Company, which includes the transactions associated with the Share Exchange and Charlie’s Financing completed prior to the Share Exchange, along with ongoing corporate costs.   Results of Operations for the Year Ended December 31, 2020 Compared to the Year Ended December 31, 2019       For the years ended                   December 31,         Change       2020     2019     Amount     Percentage   ($ in thousands)                         Revenues:                         Product revenue, net   $ 16,692     $ 22,740     $ (6,048 )     -26.6 % Total revenues     16,692       22,740       (6,048 )     -26.6 % Operating costs and expenses:                                 Cost of goods sold - product revenue     7,478       10,071       (2,593 )     -25.7 % General and administrative     10,873       15,017       (4,144 )     -27.6 % Sales and marketing     1,733       2,314       (581 )     -25.1 % Research and development     3,378       1,102       2,276       206.5 % Total operating costs and expenses     23,462       28,504       (5,042 )     -17.7 % Loss from operations     (6,770 )     (5,764 )     (1,006 )     17.5 % Other income (expense):                                 Interest expense     (134 )     -       (134 )     100 % Change in fair value of derivative liabilities     (300 )     3,618       (3,918 )     -108.3 % Other income     17       -       17       100 % Total other income (expense)     (417 )     3,618       (4,035 )     -111.5 % Net loss   $ (7,187 )   $ (2,146 )   $ (5,041 )     234.9 %   Revenue   Revenue for the year ended December 31, 2020 decreased approximately $6,048,000, or 26.6%, to approximately $16,692,000, as compared to approximately $22,740,000 for the year ended December 31, 2019 due to a $5,604,000 decrease in our nicotine-based product sales, and a $422,000 decrease in sales of our CBD wellness products. Sales discounts, key accounts participating in volume-based rebate programs, and a relatively larger provision for returns generally contributed to a decrease in net sales. Specifically, the decrease in our nicotine-based e-liquid flavor sales is directly related to the current regulatory and health related news stories surrounding the vaping industry. The nicotine based e-liquid sales decline began late in the quarter ended September 30, 2019 and we expect sales in future quarters to be affected until the regulatory environment becomes clear. Uncertainty surrounding the FDA’s application review timeline, following the PMTA submission deadline, has continued to affect buying patterns in the domestic vape market as customers reduce inventories of non-PMTA submitted products. In addition, in late February 2020, sales of our vapor products and CBD wellness products began to experience a decrease as the effects of the global COVID-19 pandemic caused disruptions in the global economy, including mandatory closures of and restrictions placed on retail locations carrying our products.    Cost of Revenue     Cost of revenue, which consists of direct costs of materials, direct labor, third party subcontractor services, and other overhead costs decreased approximately $2,593,000, or 25.7%, to approximately $7,478,000, or 44.8% of revenue, for the year ended December 31, 2020, as compared to approximately $10,071,000, or 44.3% of revenue, for the year ended December 31, 2019. This cost, as a percent of revenue, remained relatively unchanged due to a favorable mix of higher margin sales for both Charlie’s and Don Polly, but was marginally offset by a higher provision for obsolescence.     -34- Table of Contents     General and Administrative Expense   For the year ended December 31, 2020, total general and administrative expense decreased approximately $4,144,000 to approximately $10,873,000, or 65.1% of revenue, as compared to approximately $15,017,000, or 66.0% of revenue, for the year ended December 31, 2019. This decrease is comprised of reductions of approximately $3,906,000 of non-cash stock-based compensation, employee bonuses and certain other transaction related costs, as well as $946,000 of other general and administrative expenses. The reduction in transaction related costs includes $2,437,000 of employee bonuses, $1,063,000 in non-cash, stock-based compensation, and $406,000 of other costs, including legal and consulting fees, most of which were linked to the Share Exchange in April 2019. Other fluctuations in general and administrative costs netted out to a reduction of approximately $946,000, largely consisting of a reduced provision for bad debt, product testing fees and general travel expenses. The decrease was offset by an increase of approximately $708,000 in salary costs, primarily due to a higher average headcount year over year, as well as the addition of salaries for our CEO and COO who, prior to the Share Exchange, did not receive annual salaries from Charlie’s.   During the year ended December 31, 2020, we routinely evaluated our business forecast on a quarterly basis, and periodically made necessary changes in order to align our cost structure with revenue production. Mid-year headcount adjustments across several departments and intermittent salary reductions for highly compensated employees accounted for the majority of intentional cost cuts. We believe with our current staff, business processes and system infrastructure, we can achieve our operational plan in the coming quarters as well as retain the ability to swiftly adjust our cost structure to accommodate any further changes in Company performance.   Sales and Marketing Expense   For the year ended December 31, 2020, total sales and marketing expense decreased approximately $581,000, or 25.1%, to approximately $1,733,000 as compared to approximately $2,314,000 for the year ended December 31, 2019, which was primarily due to lower commissions paid for reduced sales, curtailed spending on key marketing programs, and a decrease in trade show travel due to uncertainty in the global economy resulting from effects of COVID-19.   Research and Development Expense   For the year ended December 31, 2020, total research and development expense increased approximately $2,276,000, or 206.5%, to approximately $3,378,000 as compared to approximately $1,102,000 for the year ended December 31, 2019, which was primarily due to costs incurred with the PMTA registration process.   Loss from Operations   We had a net loss from operations of approximately $6,770,000 for the year ended December 31, 2020 as compared to net loss from operations of approximately $5,764,000 for the year ended December 31, 2019. Net loss is determined by adjusting income from operations by the following items:   ● Change in fair value of derivative liabilities. For the year ended December 31, 2020 and 2019, the (loss)/gain in fair value of derivative liabilities was ($300,000) and $3,618,000, respectively. The derivative liability is associated with the issuance of the Investor Warrants and the Placement Agent Warrants in connection with the Share Exchange. The loss for the year ended December 31, 2020 reflects the effect of the increase in stock price as of December 31, 2020 compared to December 31, 2019. We had warrants to purchase approximately 4,034 million shares of common stock outstanding as of December 31, 2020.   ● Interest Expense. For the year ended December 31, 2020 and 2019, we recorded interest expense related to notes payable of $134,000 and $0, respectively.   ● Other Income. For the year ended December 31, 2020 and 2019, we recorded other income related to interest and sublease income of $17,000 and $0, respectively.   Net Loss   For the years ended December 31, 2020 and 2019, we had a net loss of $7,187,000 and $2,146,000, respectively.   Effects of Inflation   Inflation has not had a material impact on our business.   -35- Table of Contents     Liquidity and Capital Resources   As of December 31, 2020, we had negative working capital of approximately $6,020,000, which consisted of current assets of approximately $4,723,000 and current liabilities of approximately $10,743,000. This compares to negative working capital of approximately $1,566,000 at December 31, 2019. The current liabilities, as presented in the condensed consolidated balance sheet at December 31, 2020 included elsewhere in this Report primarily include approximately $2,525,000 of accounts payable and accrued expenses, approximately $268,000 of deferred revenue associated with product shipped but not yet received by customers, approximately $456,000 of lease liabilities, notes payable of $1,400,000, dividends payable of $1,650,000 and $4,444,000 of derivative liability associated with the Investor and Placement Agent Warrants (the derivative liability of $4,444,000 is included in determining the negative working capital of $6,020,000 but is not expected to use any cash to ultimately satisfy the liability).   Our cash and cash equivalents balance at December 31, 2020 was approximately $1,422,000.     For the year ended December 31, 2020 we used cash from operations of $3,273,000, as compared to $2,036,000 for the year ended December 31, 2019. This increase in the cash used by operations is due primarily to a net loss in 2020 of $7,187,000 compared to net loss of $2,146,000 in 2019 along with an increase in accounts receivable.   For the year ended December 31, 2020 we used cash for investment activities of $169,000 as compared to $571,000 for the year ended December 31, 2019. For the year ended December 31, 2020, the cash used for investment activities was primarily for the ongoing development and configuration of enterprise resource planning software. For the year ended December 31, 2019, the cash used for investment activities was primarily used for the purchase of fixed assets and certain leasehold improvements for the buildout of our Don Polly operation.   For the year ended December 31, 2020 we generated cash from financing activities of $2,416,000 as compared to generated cash from financing activities of $4,751,000 for the year ended December 31, 2019. In the 2020 period, we generated cash from financing activities from the Red Beard Note, PPP Loans and EID Loan (as defined in Note 8 of Item 1, Part 1 of this Report). In the 2019 period, we generated cash from financing activities from the Charlie’s Financing, which was offset by Member distributions (as defined in Note 1 of Item 1, Part 1 of this Report) to the former Members of Charlie’s. The Charlie’s Member distributions were all prior to or part of the Share Exchange and no further distributions will be made as Charlie’s is now a wholly-owned subsidiary of the Company.   Going Concern Uncertainty Regarding the Legal and Regulatory Environment, Liquidity and Management’s plan of operation   Our financial statements have been prepared assuming that the Company will continue as a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. The Company operates in a rapidly changing legal and regulatory environment; new laws and regulations or changes to existing laws and regulations could significantly limit the Company’s ability to sell its products, and/or result in additional costs. Additionally, the Company is required to apply for FDA approval to continue selling and marketing its products used for the vaporization of nicotine in the United States. There is significant cost associated with the application process and there can be no assurance the FDA will approve the application(s). In addition, the recent outbreak of Coronavirus in March 2020 has had a negative impact on the global economy and markets which could impact the Company’s supply chain and/or sales. For the year ended December 31, 2020, the Company has incurred losses from operations of $6,770,000 and a consolidated net loss of approximately $7,187,000 and the Company has negative stockholders’ equity of $5,996,000. These factors raise substantial doubt about the Company’s ability to continue as a going concern. The financial statements do not include any adjustments to the carrying amount and classification of recorded assets and liabilities should the Company be unable to continue operations.   Our plans and growth depend on our ability to increase revenues and continue our business development efforts, including costs beyond the approximately $4,400,000 already expensed to complete our PMTA registration process. We currently do not anticipate that our current cash position will be sufficient to meet our working capital requirements, to continue our sales and marketing efforts and complete the PMTA registration process. We are currently seeking term debt or other sources of financing in order to ensure that we have sufficient cash to operate for the next 12 months (refer to Note 14 – Subsequent Events). If in the future our plans or assumptions change or prove to be inaccurate, or there is a significant change in the regulatory environment or the recent outbreak of COVID-19 continues to impact the global economy, we will need to raise additional funds through public or private debt or equity offerings, financings, corporate collaborations, or other means. There can be no assurance that such financing will be available on acceptable terms, or at all, and there can be no assurance that any such arrangement, if required or otherwise sought, would be available on terms deemed to be commercially acceptable and in our best interests.   Off-Balance Sheet Arrangements   The Company has no off-balance sheet arrangements other than operating lease commitments.   Critical Accounting Policies   Included below is a discussion of critical accounting policies used in the preparation of our financial statements. While all these significant accounting policies impact our financial condition and results of operations, we view certain of these policies as critical. Policies determined to be critical are those policies that have the most significant impact on our financial statements and require management to use a greater degree of judgment and estimates. Actual results may differ from those estimates.       -36- Table of Contents     We believe that given current facts and circumstances, it is unlikely that applying any other reasonable judgments or estimate methodologies would cause a material effect on our consolidated results of operations, financial position or liquidity for the periods presented in this report.   The accounting policies identified as critical are as follows:     Revenue Recognition   The Company recognizes revenues in accordance with Accounting Standards Codification (“ ASC ”) 606 – Contracts with Customers. Revenues are generated from contracts with customers that consist of sales to retailers and distributors. Contracts with customers are generally short term in nature with the delivery of product as a single performance obligation. Revenue from the sale of product is recognized at the point in time when the single performance obligation has been satisfied and control of the product has transferred to the customer. In evaluating the timing of the transfer of control of products to customers, The Company considers several indicators, including significant risks and rewards of products, the right to payment, and the legal title of the products. Based on the assessment of control indicators, sales are generally recognized when products are received by customers. Shipping generally occurs prior to the transfer of control to the customer and is therefore accounted for as a fulfillment expense. In circumstances where shipping and handling activities occur after the customer has obtained control of the product, the Company has elected to account for shipping and handling activities as a fulfillment cost rather than an additional promised service. Contract durations are generally less than one year, and therefore costs paid to obtain contracts, which generally consist of sales commissions, are recognized as expense in the period incurred. Revenue is measured by the transaction price, which is defined as the amount of consideration expected to be received in exchange for providing goods to customers. The transaction price is adjusted for estimates of known or expected variable consideration, which includes refunds and returns as well as incentive offers, volume rebates, and promotional discounts on current orders. Our volume rebates are short-term in nature and reset on a quarterly basis. Sales returns are generally not material to the financial statements, and do not comprise a significant portion of variable consideration. Estimates for sales returns are based on, among other things, an assessment of historical trends, information from customers, and anticipated returns related to current sales activity. These estimates are established in the period of sale and reduce revenue in the period of the sale. Variable consideration related to incentive offers and promotional programs are recorded as a reduction to revenue based on amounts the Company expects to collect. Estimates are regularly updated and the impact of any adjustments are recognized in the period the adjustments are identified. In many cases, key sales terms such as pricing and quantities ordered are established at the time an order is placed and incentives have very short-term durations.   Amounts billed and due from customers are short term in nature and are classified as receivables since payments are unconditional and only the passage of time related to credit terms is required before payments are due. The Company does not grant payment financing terms greater than one year. Payments received in advance of revenue recognition are recorded as deferred revenue.     Accounts receivable is recorded at the invoiced amount and does not bear interest. We determine the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s financial condition, credit history and current economic conditions and set up an allowance for doubtful accounts when collection is uncertain. Customers’ accounts are written off against the allowance when all attempts to collect have been exhausted. Recoveries of accounts receivable previously written off are recorded as income when received. As of December 31, 2020, and 2019, the allowance for bad debt totaled $355,000 and $639,000, respectively   Inventories   Inventories primarily consist of finished goods and are stated at the lower of cost (determined by the average cost method) or net realizable value. We calculate estimates of excess and obsolete inventories determined primarily by reviewing inventory on hand, historical sales activity, industry trends and expected net realizable value. As of December 31, 2020, and 2019, the reserve for excess and obsolete inventories totaled $179,000 and $83,000, respectively.   Stock-Based Compensation   We account for all stock-based compensation using a fair value-based method. The fair value of equity-classified awards granted to employees is estimated on the date of the grant using the Black-Scholes option-pricing model and the related stock-based compensation expense is recognized over the vesting period during which an employee is required to provide service in exchange for the award. We measure the fair value of liability-classified awards using a Monte Carlo valuation model. Compensation cost is recognized over the service period and is remeasured at each reporting period through settlement.       -37- Table of Contents     Income taxes                  Income taxes are computed under the liability method. This method requires the recognition of deferred tax assets and liabilities for temporary differences between the financial reporting basis and the tax basis of our assets and liabilities. The impact on deferred taxes of changes in tax rates and laws, if any, are applied to the years during which temporary differences are expected to be settled and are reflected in the consolidated financial statements in the period of enactment. A valuation allowance is recorded when it is more likely than not that some of the deferred tax assets will not be realized.                   Financial statement effects of a tax position are initially recognized when it is more likely than not, based on the technical merits, that the position will be sustained upon examination by a taxing authority. A tax position that meets the more-likely-than-not recognition threshold is initially and subsequently measured as the largest amount of tax benefit that meets the more-likely-than-not threshold of being realized upon ultimate settlement with a taxing authority. We recognize potential accrued interest and penalties related to unrecognized tax benefits as income tax expense.   ITEM 7A. QU A NTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK   Not applicable.