Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-Q
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For
the Quarterly Period Ended: March 31, 2008
Commission
File Number: 000-33297
BLUE
HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
Nevada
|
|
88-0450923
|
(State
or other jurisdiction of
|
|
(IRS
Employer
|
incorporation
or organization)
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|
Identification
No.)
|
4901
Zambrano Street, Commerce, CA 90040
(Address
of principal executive offices)
(323)
726-0297
(Registrant’s
telephone number, including area code)
Indicate
by check mark whether the registrant (1) has filed all reports required to
be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. |
Yes
o No
x
|
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer,
or a
smaller reporting company. See definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large Accelerated Filer |
o |
|
Accelerated Filer |
o |
Non-Accelerated Filer |
o
(Do not check if smaller reporting company) |
Smaller Reporting Company |
x |
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes
o
No
x
As
of
October 2, 2008, 26,232,200 shares of the registrant’s common stock were
outstanding.
TABLE
OF CONTENTS
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Page
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PART
I
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Financial
Information
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Item
1.
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Condensed
Consolidated Financial Statements
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Condensed
Consolidated Balance Sheets as of March 31, 2008
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(Unaudited)
and December 31, 2007
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3
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Condensed
Consolidated Statements of Operations
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for
the three months ended March 31, 2008 and 2007(Unaudited)
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4
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Condensed
Consolidated Statement of Stockholders’ Deficiency
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for
the three months ended March 31, 2008 (unaudited)
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5
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Condensed
Consolidated Statements of Cash Flows
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for
the three months ended March 31, 2008 and 2007 (Unaudited)
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6
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Notes
to the Condensed Consolidated Financial Statements
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for
the three months ended March 31, 2008 and 2007 (Unaudited)
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7
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Item
2.
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Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
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26
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Item
3.
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Quantitative
and Qualitative Disclosures About Market Risk
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43
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Item
4.
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Controls
and Procedures
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43
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PART
II
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Other
Information
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Item
1.
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Legal
Proceedings
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45
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Item
4.
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Submission
of Matters to a Vote of Security Holders
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45
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Item
6.
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Exhibits
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45
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PART
I
ITEM
1. FINANCIAL
STATEMENTS
BLUE
HOLDINGS INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED BALANCE SHEETS
MARCH
31, 2008 (UNAUDITED) AND DECEMBER 31,
2007
ASSETS
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March
31,
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December
31,
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2008
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2007
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(Unaudited)
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Current
assets:
|
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Cash
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$
|
105,066
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$
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74,842
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Due
from factor, net of reserves of $109,045 and $173,803,
respectively
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225,827
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94,194
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Accounts
receivable, net of reserves of $968,346 and $1,138,664,
respectively:
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-
Purchased by factor with recourse
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3,235,628
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1,668,498
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-
Others
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469,715
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548,548
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Inventories
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5,125,255
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9,328,581
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Income
taxes receivable
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1,419,900
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1,419,697
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Prepaid
expenses and other current assets
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748,018
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1,283,990
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Total
current assets
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11,329,409
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14,418,350
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Property
and equipment, net of accumulated depreciation
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1,677,465
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1,771,868
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Total
assets
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$
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13,006,874
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$
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16,190,218
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LIABILITIES
AND STOCKHOLDERS' DEFICIENCY
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Current
liabilities:
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Bank
overdraft
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$
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-
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$
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75,764
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Accounts
payable
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2,646,043
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2,577,454
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Short-term
borrowings
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11,146,782
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12,582,129
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Due
to related parties
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182,039
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279,336
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Advances
from majority shareholder
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1,690,091
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1,398,842
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Current
portion of convertible debt
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828,120
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-
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Accrued
expenses and other current liabilities
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1,365,733
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1,620,954
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Total
current liabilities
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17,858,808
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18,534,479
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Non-current
portion of convertible debt
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696,667
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- |
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Total
liabilities
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18,555,475
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18,534,479
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Stockholders'
deficiency:
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Preferred
stock $0.001 stated value, 5,000,000 shares authorized,
1,000,000
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Series
A convertible shares issued with 6% cumulative dividend of
the
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designated
purchase price and initial conversion price of $0.7347
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1,000
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1,000
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Common
stock $0.001 par value, 75,000,000 shares authorized,
26,232,200
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shares
issued and outstanding
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26,232
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26,232
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Additional
paid-in capital
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8,710,853
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8,059,648
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Accumulated
deficit
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(14,286,686
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)
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(10,431,141
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)
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Total
stockholders' deficiency
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(5,548,601
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)
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(2,344,261
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)
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Total
liabilities and stockholders' deficiency
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$
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13,006,874
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$
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16,190,218
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SEE
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
BLUE
HOLDINGS INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND
2007
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2008
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2007
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Net
sales
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$
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8,554,119
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$
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8,440,222
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Cost
of goods sold
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7,800,681
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3,608,196
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Gross
profit
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753,438
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4,832,026
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Selling,
distribution & administrative expenses
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4,855,762
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4,520,568
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Income
(loss) before other expenses
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|
(4,102,324
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)
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311,458
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Other
expenses - Interest expense
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453,221
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338,144
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Net
loss
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$
|
(4,555,545
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)
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$
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(26,686
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)
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|
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Loss
per common share, basic and diluted
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$
|
(0.17
|
)
|
$
|
(0.00
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)
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Weighted
average shares outstanding, basic and diluted
|
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26,232,200
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26,057,200
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SEE
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
BLUE
HOLDINGS INC. AND SUBSIDIARIES
CONSOLIDATED
STATEMENT OF STOCKHOLDERS' DEFICIENCY
FOR
THE THREE MONTHS ENDED MARCH 31, 2008
(UNAUDITED)
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Preferred
Shares Issued
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Common
Shares Issued
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Additional
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Par
Value
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Par
Value
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Paid
In
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Accumulated
|
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Number
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|
0.001
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Number
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0.001
|
|
Capital
|
|
Deficit
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Total
|
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|
|
|
|
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|
|
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|
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|
|
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Balance,
January 1, 2008
|
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|
1,000,000
|
|
$
|
1,000
|
|
|
26,232,200
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|
$
|
26,232
|
|
$
|
8,059,648
|
|
$
|
(10,431,141
|
)
|
$
|
(2,344,261
|
)
|
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|
|
|
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Fair
value of vested stock options
|
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|
-
|
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|
-
|
|
|
-
|
|
|
-
|
|
|
55,605
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|
|
-
|
|
|
55,605
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
Foregiveness
of debt by majority shareholder
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
700,000
|
|
|
700,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair
value of convertibility
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
feature
of notes and warrants issued
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
595,600
|
|
|
-
|
|
|
595,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss for the period
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
-
|
|
|
(4,555,545
|
)
|
|
(4,555,545
|
)
|
Balance,
March 31, 2008
|
|
|
1,000,000
|
|
$
|
1,000
|
|
|
26,232,200
|
|
$
|
26,232
|
|
$
|
8,710,853
|
|
$
|
(14,286,686
|
)
|
$
|
(5,548,601
|
)
|
SEE
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
BLUE
HOLDINGS INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
|
|
2008
|
|
2007
|
|
|
|
|
|
|
|
Cash
flows from operating activities:
|
|
|
|
|
|
Net
loss
|
|
$
|
(4,555,545
|
)
|
$
|
(26,686
|
)
|
Adjustments
to reconcile net loss to cash used in operating
activities:
|
|
|
|
|
|
|
|
Depreciation
and amortization
|
|
|
142,269
|
|
|
90,601
|
|
Fair
value of vested stock options
|
|
|
55,605
|
|
|
53,019
|
|
Amortization
of discount on convertible debt
|
|
|
19,704
|
|
|
-
|
|
Changes
in assets and liabilities:
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
|
(1,488,297
|
)
|
|
(1,030,172
|
)
|
Due
from factor
|
|
|
(131,633
|
)
|
|
1,349,312
|
|
Income
taxes receivable
|
|
|
(203
|
)
|
|
(22,316
|
)
|
Inventories
|
|
|
4,203,326
|
|
|
(3,411,695
|
)
|
Due
to related parties
|
|
|
(97,297
|
)
|
|
(79,288
|
)
|
Deferred
income taxes
|
|
|
-
|
|
|
22,316
|
|
Prepaid
expenses and other current assets
|
|
|
535,973
|
|
|
(291,571
|
)
|
Bank
overdraft
|
|
|
(75,764
|
)
|
|
145,894
|
|
Accounts
payable
|
|
|
68,589
|
|
|
755,120
|
|
Other
current liabilities
|
|
|
(255,221
|
)
|
|
(264,638
|
)
|
Net
cash used in operating activities
|
|
|
(1,578,494
|
)
|
|
(2,710,104
|
)
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities:
|
|
|
|
|
|
|
|
Purchase
of equipment
|
|
|
(47,866
|
)
|
|
(43,621
|
)
|
Net
cash used in investing activities
|
|
|
(47,866
|
)
|
|
(43,621
|
)
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities:
|
|
|
|
|
|
|
|
Short-term
borrowings
|
|
|
(1,435,347
|
)
|
|
2,393,458
|
|
Advances
from majority shareholder
|
|
|
991,249
|
|
|
415,340
|
|
Issuance
of convertible notes
|
|
|
2,100,682
|
|
|
-
|
|
Net
cash provided by financing activities
|
|
|
1,656,584
|
|
|
2,808,798
|
|
|
|
|
|
|
|
|
|
Net
(decrease) increase in cash
|
|
|
30,224
|
|
|
55,073
|
|
Cash
at beginning of period
|
|
|
74,842
|
|
|
109,031
|
|
Cash
at end of period
|
|
$
|
105,066
|
|
$
|
164,104
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL
CASH FLOW INFORMATION:
|
|
|
|
|
|
|
|
Cash
paid for interest
|
|
$
|
453,221
|
|
$
|
993,814
|
|
|
|
|
|
|
|
|
|
Cash
paid for income tax
|
|
$
|
-
|
|
$
|
2,551,605
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL
DISCLOSURE OF NON-CASH FINANCING AND INVESTING
ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forgiveness
of debt from majority stockholder
|
|
$
|
700,000
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
Cumulative
effect of adoption of FIN 48
|
|
$
|
-
|
|
$
|
32,288
|
|
|
|
|
|
|
|
|
|
Fair
value of convertibility feature of notes and
|
|
|
|
|
|
|
|
warrants
issued reflected as note discount
|
|
$
|
595,600
|
|
$
|
-
|
|
SEE
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
1 - BASIS OF PRESENTATION, ORGANIZATION AND NATURE OF
OPERATIONS
(a)
Basis of Presentation
The
interim condensed consolidated financial statements are unaudited, but in the
opinion of management of the Company, contain all adjustments, which include
normal recurring adjustments, necessary to present fairly the financial position
at March 31, 2008 and the results of operations for the three months ended
March
31, 2008 and 2007. The condensed consolidated balance sheet as of December
31,
2007 is derived from the Company’s audited financial statements (as
restated).
Certain
information and footnote disclosures normally included in financial statements
that have been presented in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to the rules and regulations
of the Securities and Exchange Commission with respect to interim financial
statements, although management of the Company believes that the disclosures
contained in these financial statements are adequate to make the information
presented therein not misleading. For further information, refer to the
consolidated financial statements and notes thereto included in the Company’s
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2007 (as
restated), as filed with the Securities and Exchange Commission on October
1,
2008.
The
Company’s results of operations for the three months ended March 31, 2008 are
not necessarily indicative of the results of operations to be expected for
the
full fiscal year ending December 31, 2008.
The
condensed consolidated financial statements include the operations of Blue
Holdings, Inc. and its wholly-owned subsidiaries. Intercompany transactions
and
balances are eliminated in consolidation.
(b)
Organization
Blue
Holdings, Inc. (a Nevada corporation formerly known as Marine Jet Technology
Corp.) was incorporated in the State of Nevada on February 9, 2000. On April
14,
2005, Blue Holdings entered into an Exchange Agreement with Antik Denim, LLC
(“Antik”). At the closing of the transactions contemplated by the Exchange
Agreement, which occurred on April 29, 2005, Blue Holdings acquired all of
the
outstanding membership interests of Antik (the “Interests”) from the members of
Antik, and the members contributed all of their Interests to Blue Holdings.
In
exchange, Blue Holdings issued to the members 843,027 shares of Series A
Convertible Preferred Stock, par value $0.001 per share, of Blue Holdings
(“Preferred Shares”), which, on June 7, 2005, as a result of a change to Marine
Jet Technology Corp.’s name to Blue Holdings, Inc. and a 1 for 29 reverse stock
split, were converted into 24,447,783 shares of Blue Holding’s common stock on a
post-reverse stock split basis.
As
such,
immediately following the closing and upon the conversion of the Preferred
Shares, the Antik members and Elizabeth Guez, our former Chief Operating Officer
and wife of Paul Guez, owned approximately 95.8% of the total issued and
outstanding common stock of Blue Holdings on a fully-diluted basis. Following
completion of the exchange transaction, Antik became a wholly-owned subsidiary
of Blue Holdings. The acquisition was accounted for as a reverse merger
(recapitalization) in the accompanying financial statements with Antik deemed
to
be the accounting acquirer and Blue Holdings deemed to be the legal acquirer.
As
such, the financial statements herein include those of Antik since September
13,
2004 (the date of its inception). All assets and liabilities of Marine Jet
Technology Corp. were assumed by the major stockholder of Blue Holdings, Inc.
prior to the exchange transaction and were inconsequential to the merged
companies.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
On
June
7, 2005, Marine Jet Technology Corp. changed its name to Blue Holdings, Inc.,
and increased its authorized number of shares of common stock to
75,000,000.
On
October 31, 2005, the Company entered into an exchange agreement with Taverniti
So Jeans, LLC, a California limited liability company (“Taverniti”), and the
members of Taverniti (the “Taverniti Members”). Under the exchange agreement,
the Company acquired all of the outstanding membership interests of Taverniti
(the “Taverniti Interests”) from the Taverniti Members, and the Taverniti
Members contributed all of their Taverniti Interests to the Company. In
exchange, the Company issued to the Taverniti Members, on a pro rata basis,
an
aggregate of 500,000 shares of the Common Stock, par value $0.001 per share,
of
the Company, and paid to the Taverniti Members, on a pro rata basis, an
aggregate of Seven Hundred Fifty Thousand Dollars ($750,000). At the closing
of
the exchange transaction, Taverniti became a wholly-owned subsidiary of the
Company. Paul Guez, the Company’s Chairman, Chief Executive Officer, President
and majority stockholder, was and remains the sole manager and was a member
of
Taverniti. Elizabeth Guez, Paul Guez’s spouse and the Company’s former Chief
Operating Officer, was also a member of Taverniti. Two other members of Mr.
and
Mrs. Guez’s family, were the remaining members of Taverniti. The transaction was
accounted for as a combination of entities under common control. As such, the
financial statements herein have been presented to include the operations of
Taverniti since September 13, 2004, the date of its inception, and the $750,000
payment was considered as a deemed distribution to the members of Taverniti
upon
the closing of the combination.
(c)
Nature of Operations
The
Company operates exclusively in the wholesale apparel industry. The Company
designs, develops, markets and distributes high fashion jeans and accessories
under the brand names Antik
Denim,
Yanuk,
U,
Faith
Connexion
and
Taverniti
So Jeans.
The
Company’s products currently include jeans, jackets, belts, purses and T-shirts.
The Company currently sells its products in the United States, Canada, Japan
and
the European Union directly to department stores and boutiques and through
distribution arrangements in certain foreign jurisdictions. The Company is
headquartered in Commerce, California and maintains showrooms in New York and
Los Angeles. The Company opened a retail store in Los Angeles during August
2005
and another store in San Francisco in July 2006. The retail operations are
not
significant to the consolidated operations.
(d) Going
Concern
The
accompanying consolidated financial statements have been prepared in conformity
with accounting principles generally accepted in the United States of America,
which contemplate continuation of the Company as a going concern. However,
the
Company had a net loss of $8,631,943 and utilized cash of $4,046,796 in
operating activities during the year ended December 31, 2007, and had a
stockholders’ deficiency of $2,344,261 as at December 31, 2007. During the three
months ended March 31, 2008, the Company had a net loss of $4,555,545 and
utilized cash of $1,578,494 in operating activities, and had a stockholders’
deficiency of $5,548,601 at March 31, 2008. These factors raise substantial
doubt about the Company’s ability to continue as a going concern. The
consolidated financial statements do not include any adjustments relating to
the
recoverability and classification of recorded asset amounts, or amounts and
classification of liabilities that might result from this uncertainty.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
The
Company’s primary source of liquidity in the past was cash flow generated from
operations, cash and cash equivalents currently on hand, and working capital
attainable through both its factor and its majority stockholder. However, the
Company is currently in an over-advance position with its factor and certain
of
the Company’s receivables are being directly paid to the factor until such
over-advance is being satisfied (See Note 3).
The
Company has already in 2008 sought to, and may continue to seek to, finance
future capital needs through various means and channels, such as issuance of
long-term debt or sale of equity securities. On March 5, 2008, the Company
entered into a Securities Purchase Agreement (the “Securities Purchase
Agreement”) with an institutional investor pursuant to which it issued an
aggregate of $2.0 million of thirty-month senior secured convertible notes,
and
five-year warrants to purchase an aggregate of 875,000 shares, to the investor
(see Note 8). In addition, management believes that the Company will begin
to
operate profitably due to improved operational results, improved margins on
goods sold, and cost cutting practices. However, there can be no
assurances that the Company will be successful in this regard or will be able
to
eliminate its stockholders deficit or operating losses.
NOTE
2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a)
Use of Estimates
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of
the financial statements and the reported amounts of revenues. On an ongoing
basis, we evaluate estimates, including those related to returns, discounts,
bad
debts, inventories, intangible assets, income taxes, contingencies and
litigation. We base our estimates on historical experience and on various
assumptions that are believed to be reasonable under the circumstances, the
results of which form the basis for making judgments about the carrying values
of assets and liabilities that are not readily apparent from other sources.
Actual results may differ from these estimates under different assumptions
or
conditions.
(b)
Revenue Recognition
Revenue
is recognized when merchandise has been shipped against a customer’s written
purchase order, the risk of ownership has passed, selling price has been fixed
and determined and collectibility is reasonably assured either through payment
received, or fulfillment of all the terms and conditions of the particular
purchase order. Revenue is recorded net of estimated returns, charge backs
and
markdowns based on management’s estimates and historical
experience.
(c)
Inventory Valuation
Inventories
are stated at the lower of cost (first-in, first-out method) or
market.
(d)
Advertising
Advertising
costs are expensed as of the first date the advertisements take place.
Advertising expenses included in selling expenses approximated $46,000 and
$62,000 for the three months ended March 31, 2008 and 2007,
respectively.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
(e)
Shipping and Handling Costs
Freight
charges are included in selling, distribution and administrative expenses in
the
statement of operations and were approximately $252,000 and $169,000 for the
three months ended March 31, 2008 and 2007, respectively.
(f)
Major Suppliers
We
purchase our fabric, thread and other raw materials from various industry
suppliers within the United States and abroad. We do not currently have any
long-term agreements in place for the supply of our fabric, thread or other
raw
materials. The fabric, thread and other raw materials used by us are available
from a large number of suppliers worldwide. During the three months ended March
31, 2008, two suppliers each accounted for more than 10% of total purchases.
Purchases from these suppliers totaled 38.6% and 10.5% respectively. During
the
three months ended March 31, 2007, three suppliers individually accounted for
more than 10% of total purchases and purchases from these suppliers were 24.4%,
16.4% and 10.5%, respectively.
(g)
Major Customers
During
the three months ended March 31, 2008, one customer accounted for more than
10%
of the Company’s sales. That customer accounted for approximately 40% of the
Company’s total sales. International sales accounted for approximately 6.9% of
total sales for the period, including Japan which accounted for 6.7% of total
sales. As of March 31, 2007, one customer accounted for 48% total outstanding
accounts receivable.
During
the three months ended March 31, 2007, one customer accounted for more than
10%
of the Company’s sales. Sales to that customer were 13.5%. International sales
accounted for approximately 25.5% of the Company’s sales during the three months
ended March 31, 2007, including Japan which accounted for 15.9% of our total
sales. As of March 31, 2007, one customer accounted for 37% of total accounts
receivable.
(h)
Stock-Based Compensation
In
December 2004, the Financial Accounting Standards Board (“FASB”) issued
Statement of Financial Accounting Standards 123R, “Share-Based Payment” (“SFAS
123R”). This statement requires that the cost resulting from all share-based
payment transactions be recognized in the financial statements. This statement
establishes fair value as the measurement objective in accounting for
share-based payment arrangements and requires all entities to apply a fair-value
based measurement method in accounting for share-based payment transactions
with
employees except for equity instruments held by employee share ownership plans.
Effective January 1, 2006, the Company adopted the fair value recognition
provisions of SFAS 123R, using the modified prospective method. Under this
method, the provisions of SFAS 123R apply to all awards granted or modified
after the date of adoption and all previously granted awards not yet vested
as
of the date of adoption.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
The
fair
value of options was estimated on the date of grant using the Black-Scholes
option pricing model with the following weighted-average assumptions for the
three months ended March 31, 2008 and 2007:
|
|
March
31,
|
|
March
31,
|
|
|
|
2008
|
|
2007
|
|
|
|
|
|
|
|
Dividend
yield
|
|
|
—
|
|
|
—
|
|
Risk-free
interest rate
|
|
|
4.50
|
%
|
|
4.50
|
%
|
Expected
volatility
|
|
|
46.01
|
%
|
|
46.01
|
%
|
Expected
life of options
|
|
|
5
years
|
|
|
5
years
|
|
(i)
Earnings per Share
Statement
of Financial Accounting Standards No. 128, “Earnings per Share,” requires
presentation of basic earnings per share (“Basic EPS”) and diluted earnings per
share (“Diluted EPS”). Basic earnings (loss) per share are computed by dividing
net income by the weighted average number of common shares outstanding during
the period. Diluted earnings per share reflects the potential dilution, using
the treasury stock method, that could occur if securities or other contracts
to
issue common stock were exercised or converted into common stock or resulted
in
the issuance of common stock that then shared in the earnings of the Company.
In
computing diluted earnings per share, the treasury stock method assumes that
outstanding options and warrants are exercised and the proceeds are used to
purchase common stock at the average market price during the period. Options
and
warrants will have a dilutive effect under the treasury stock method only when
the average market price of the common stock during the period exceeds the
exercise price of the options and warrants.
At
March
31, 2008, potentially dilutive securities consisted of outstanding common stock
options to acquire 1,014,500 shares, outstanding warrants to acquire 1,025,000
shares, 2,608,000 shares issuable under convertible notes, and 4,623,589
issuable under convertible preferred stock. At March 31, 2007, potentially
dilutive securities consisted of outstanding common stock options to acquire
697,000 shares. These potentially dilutive securities were not included in
the
calculation of loss per share for the quarters ended March 31, 2008 and 2007
as
they were anti-dilutive. Accordingly, basic and diluted earnings per share
for
the quarters ended March 31, 2008 and 2007 are the same.
(j)
Fair Value Measurements
Effective
January 1, 2008, the Company adopted Statement of Financial Accounting Standards
(SFAS) No. 157, Fair Value Measurements. This Statement defines fair value
for
certain financial and nonfinancial assets and liabilities that are recorded
at
fair value, establishes a framework for measuring fair value, and expands
disclosures about fair value measurements. This guidance applies to other
accounting pronouncements that require or permit fair value measurements. On
February 12, 2008, the FASB finalized FASB Staff Position (FSP) No.157-2,
Effective Date of FASB Statement No. 157. This Staff Position delays the
effective date of SFAS No. 157 for nonfinancial assets and liabilities to fiscal
years beginning after November 15, 2008 and interim periods within those fiscal
years, except for those items that are recognized or disclosed at fair value
in
the financial statements on a recurring basis (at least annually). The adoption
of SFAS No. 157 had no effect on the Company’s consolidated financial position
or results of operations.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
(k)
Recent Accounting Pronouncements
References
to the “FASB”, “SFAS” and “SAB” herein refer to the “Financial Accounting
Standards Board”, “Statement of Financial Accounting Standards”, and the “SEC
Staff Accounting Bulletin”, respectively.
In
December 2007, the FASB issued FASB Statement No. 141 (R), “Business
Combinations” (FAS 141(R)), which establishes accounting principles and
disclosure requirements for all transactions in which a company obtains control
over another business. Statement 141 (R) applies prospectively to business
combinations for which the acquisition date is on or after the beginning of
the
first annual reporting period beginning on or after December 15, 2008. Earlier
adoption is prohibited.
In
December 2007, the FASB issued SFAS No. 160, “Non-controlling Interests in
Consolidated Financial Statements, an amendment of ARB No. 51”. SFAS No. 160
establishes accounting and reporting standards that require that the ownership
interests in subsidiaries held by parties other than the parent be clearly
identified, labeled, and presented in the consolidated statement of financial
position within equity, but separate from the parent’s equity; the amount of
consolidated net income attributable to the parent and to the non-controlling
interest be clearly identified and presented on the face of the consolidated
statement of income; and changes in a parent’s ownership interest while the
parent retains its controlling financial interest in its subsidiary be accounted
for consistently. SFAS No. 160 also requires that any retained non-controlling
equity investment in the former subsidiary be initially measured at fair value
when a subsidiary is deconsolidated. SFAS No. 160 also sets forth the disclosure
requirements to identify and distinguish between the interests of the parent
and
the interests of the non-controlling owners. SFAS No. 160 applies to all
entities that prepare consolidated financial statements, except not-for-profit
organizations, but will affect only those entities that have an outstanding
non-controlling interest in one or more subsidiaries or that deconsolidate
a
subsidiary. SFAS No. 160 is effective for fiscal years, and interim periods
within those fiscal years, beginning on or after December 15, 2008. Earlier
adoption is prohibited. SFAS No. 160 must be applied prospectively as of the
beginning of the fiscal year in which it is initially applied, except for the
presentation and disclosure requirements. The presentation and disclosure
requirements are applied retrospectively for all periods presented.
In
March
2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments
and Hedging Activities*an amendment of FASB Statement No. 133” (SFAS 161). This
Statement requires enhanced disclosures about an entity’s derivative and hedging
activities, including (a) how and why an entity uses derivative instruments,
(b)
how derivative instruments and related hedged items are accounted for under
SFAS
No. 133, “Accounting for Derivative Instruments and Hedging Activities” (SFAS
133), and its related interpretations, and (c) how derivative instruments and
related hedged items affect an entity’s financial position, financial
performance, and cash flows. SFAS 161 is effective for financial statements
issued for fiscal years and interim periods beginning after November 15, 2008.
The
Company does not believe that the adoption of the above recent pronouncements
will have a material effect on the Company’s consolidated results of operations,
financial position, or cash flows.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
3 - DUE FROM FACTOR
The
Company uses a factor for working capital and credit administration purposes.
Under the various factoring agreements entered into separately by Blue Holdings,
Antik Denim, LLC and Taverniti So Jeans, LLC, the factor purchases all the
trade
accounts receivable assigned by the Company and its subsidiaries and assumes
all
credit risk with respect to those accounts approved by it.
The
factor agreements provide that the Company can borrow up to 90% of the value
of
purchased customer invoices, less a reserve of 10% of unpaid accounts
purchased and 100%
of
all such accounts which
are
disputed. The factor agreements renew automatically, subject to 120
days’
termination notice from any party. The factor also makes available to
all
three companies a
combined line of credit up to the lesser of $2.4 million and 50% of the value
of
eligible raw materials and finished goods. As of March 31, 2008, the
factor made advances to the Company of $12,396,782
of which the Company drew down $4.50 million against inventory, $1.25 million
against accounts receivable and $5.65 million against personal guarantees of
Paul Guez, our Chairman and majority stockholder, and the living trust of Paul
and Elizabeth Guez. As the Company is in an over-advance position, the Company
has agreed with the factor that it will pledge to them the income tax receivable
of approximately $1,400,000. Furthermore, the Company and the factor have agreed
that approximately $2,500,000 of outstanding receivables owed to the Company
and
included in outstanding accounts receivable at March 31, 2008 will be paid
directly to the factor by the customer in monthly payments of $250,000 that
are
due through approximately April 2009 to reduce amounts outstanding under the
factor agreements.
As
of
March 31, 2008, the factor holds $1,584,872 of accounts receivable purchased
from us on a without recourse basis and has made advances to us of $1,250,000
against those receivables, resulting in a net balance Due from Factor of
$225,827, net of $109,045 of reserves. The Company has accounted for the sale
of
receivables to the factor in accordance with SFAS No. 140, “Accounting for the
Transfers and Servicing of Financial Assets and Extinguishments of Liabilities.”
Also, as of March 31, 2008, the factor held as collateral $3,591,024 of accounts
receivable that were subject to recourse, against which the Company has provided
reserves of $355,396. As of March 31, 2008, the Company had received advances
totaling $12,396,782 against such receivables, eligible inventory, and on the
personal guarantee of the Company’s majority stockholder. The Company has
included the net amount of $1,250,000 in accounts receivable, and has reflected
the remaining $11,146,782 as short term borrowings on the accompanying balance
sheet.
The
factor commission on receivables purchased on a without recourse basis is 0.75%
if the aggregate amount of approved invoices is below $10 million per annum
0.70% if between $10 million and $20 million and 0.65% if between $20 million
and $30 million. The Company is contingently liable to the factor for
merchandise disputes, customer claims and the like on receivables sold to the
factor. To the extent that the Company draws funds prior to the deemed
collection date of the accounts receivable sold to the factor, interest is
charged at the rate of 1% over the factor’s prime lending rate per annum, which
was 8% as of March 31, 2008. Factor advances are collateralized by the
non-factored accounts receivable, inventories and the personal guarantees of
Paul Guez, our Chairman and majority stockholder, and the living trust of Paul
and Elizabeth Guez.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
4 - INVENTORIES
Inventories
are summarized as follows:
|
|
|
|
|
|
|
|
March
31,
|
|
December
31,
|
|
|
|
2008
|
|
2007
|
|
|
|
(Unaudited)
|
|
|
|
|
|
|
|
|
|
Raw
Materials
|
|
$
|
1,638,666
|
|
$
|
2,717,085
|
|
Work-in-Process
|
|
|
1,068,484
|
|
|
962,781
|
|
Finished
Goods
|
|
|
2,418,105
|
|
|
3,450,454
|
|
Finished
Goods held for sale to customer
|
|
|
-
|
|
|
2,198,261
|
|
|
|
$
|
5,125,255
|
|
$
|
9,328,581
|
|
NOTE
5 - PROPERTY AND EQUIPMENT
Property
and equipment is summarized as follows:
|
|
March
31,
|
|
December
31,
|
|
|
|
2008
|
|
2007
|
|
|
|
(Unaudited)
|
|
|
|
Furniture
|
|
$
|
33,317
|
|
$
|
33,317
|
|
Leasehold
Improvements
|
|
|
1,327,700
|
|
|
1,312,498
|
|
Computer
Equipment
|
|
|
1,149,535
|
|
|
1,125,365
|
|
|
|
|
2,510,552
|
|
|
2,471,180
|
|
Less:
Accumulated depreciation and Amortization
|
|
|
(833,087
|
)
|
|
(699,312
|
)
|
|
|
$
|
1,677,465
|
|
$
|
1,771,868
|
|
Depreciation
expense totaled $142,269 and $90,601 for the three months ended March 31,
2008
and
2007, respectively.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
6 - RELATED PARTY TRANSACTIONS
The
Company purchased fabric at cost from Blue Concept, LLC, an entity which is
owned by Paul Guez, the Company’s Chairman, for $6,562 and $68,237,
respectively, during the three months ended March 31, 2008 and 2007.
On
January 1, 2006, the Company leased its facility at Commerce, California from
Azteca Production International Inc., as a sub-tenant and paid $19,030 per
month
through December 31, 2007, when the lease was terminated. Azteca is a company
co-owned by Paul Guez. Rent expense includes $0 and $57,090 for payments under
this lease for the three months ended March 31, 2008 and 2007,
respectively.
On
July
5, 2005 the Company entered into a ten-year license agreement with Yanuk Jeans,
LLC, an entity that is solely owned by Paul Guez. Under the terms of the
agreement, the Company became the exclusive licensor for the design,
development, manufacture, sale, marketing and distribution of the Yanuk brand
products to the wholesale and retail trade. The Company pays to Yanuk Jeans,
LLC
a royalty of six percent of all net sales of the licensed products and a
guaranteed minimum royalty on an annual basis. Yanuk has agreed to waive such
royalties for the years ending 2007 and 2008 and, accordingly, no royalties
were
paid or payable for the three months ended March 31, 2008 and 2007.
Additionally, during the term of the license agreement, the Company has the
option to purchase from Yanuk Jeans, LLC the property licensed under the
agreement.
On
October 6, 2005, the Company entered into a five-year license agreement with
Yanuk Jeans, LLC. Under the terms of the agreement, the Company became the
exclusive licensor for the design, development, manufacture, sale, marketing
and
distribution of Yanuk Jeans, LLC’s U brand products to the wholesale and retail
trade. The Company pays to Yanuk Jeans, LLC a royalty of five percent of all
net
sales of the licensed products and shall pay a guaranteed minimum royalty on
an
annual basis. In addition, during the term of the license agreement, the Company
has the option to purchase from Yanuk Jeans, LLC the property licensed under
the
agreement. No royalties were paid or payable to Yanuk Jeans, LLC for the U
brand
products for the three months ended March 31, 2008 or 2007.
Paul
Guez
and the living trust of Paul and Elizabeth Guez have guaranteed all advances
and
ledger debt due to the Company’s factor (see
Note
3).
On
August
27, 2005, the Company opened a retail store on Melrose Avenue, Los Angeles,
California and took over all the obligations of
a
10-year property lease which had previously been entered into by Blue Concept,
LLC in April 2005. The lease will expire on March 15, 2015.
Taverniti
is the exclusive licensee for the design, development, manufacture, sale,
marketing and distribution of the Taverniti So Jeans trademark in the denim
and
knit sports wear categories for men and women. It is paying royalties to
Taverniti Holdings, LLC at rates varying from 5-8 percent depending upon the
levels of net sales of related licensed products, pursuant to a license
agreement with Taverniti Holdings, LLC. Taverniti Holdings, LLC is jointly
owned
by Paul Guez (60%) and Jimmy Taverniti (40%), the designer of the products
for
the brand, and Mr. Guez is the sole manager. The license agreement was signed
in
May 2004 and expires on December 31, 2015. Royalties paid or payable for the
three months March 31, 2008 were $168,898. No royalties were paid or payable
for
the three months ended March 31, 2007, royalties for that year having been
waived by Licensor.
The
Company has entered into an agreement with the living trust of Paul and
Elizabeth Guez, pursuant to which the Company has leased a merchandising and
design facility located in Marina del Rey, California. The lease is on a
“month-to-month” basis and requires that, beginning September 1, 2007, the
Company pay rent at the rate of $24,000 per month. Rent expense of $72,000
due
under this lease agreement is included in the accompanying statement of
operations for the three months ended March 31, 2008.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
7 - DUE FROM/TO RELATED PARTIES
Due
to related parties
The
Company has various due to/from accounts with related parties that relate to
trade related activities. These amounts are unsecured, non-interest bearing
and
due on demand. The related parties are the Company’s majority stockholder (who
is also the Company’s Chairman) and limited liability companies that are either
owned or co-owned by the majority stockholder. Trade-related outstanding items
follow regular payment terms as invoiced. As of March 31, 2008 and December
31,
2007, total trade-related items due to related parties amounted to $182,039
and
$279,336, respectively.
Advances
from Majority Stockholder
From
time
to time, the Company’s majority stockholder, Paul Guez, has made advances to the
Company to support its working capital needs under a revolving line of credit
agreement. The line of credit allows the Company to borrow from him up to a
maximum of $3 million at an interest rate of 6% per annum. The Company may
repay
the advances in full or in part at any time until the credit line expires and
repayment is required on December 31, 2008. During the three months ended March
31, 2008, Mr. Guez made $919,251 of additional advances to the Company. On
March
5, 2008, the Company and Mr. Guez entered into an agreement whereby Mr. Guez
agreed to cancel $1,400,000 of indebtedness under the revolving line in
consideration of the issuance of 1,750,000 shares of the Company’s common
stock.
In
early
May 2008, Mr. Guez informed the Company of claims for sums he believed were
due
and owing him pursuant to advances made to and payments made on behalf of the
Company during fiscal 2007 that were separate from the revolving line. In light
of this dispute, the Company’s Audit Committee conducted an internal
investigation which revealed accounting errors in the Company’s related party
accounts pertaining to payables due to Mr. Guez and his affiliated entities
in
the aggregate amount of $2,009,435, and which resulted in a revised amount
due
Mr. Guez of $1,398,842 as of December 31, 2007 under the above discussed line
of
credit agreement. As such, the Company determined that it was necessary to
restate its previously filed December 31, 2007 financial statements. As of
March
31, 2008, the amount due Mr. Guez under this revolving line of credit agreement
was $1,618,093.
On
September 23, 2008, the parties entered into a Settlement Agreement and Mutual
Release pursuant to which the Company rescinded Mr. Guez’s conversion of
$1,400,000 of net advances made to the Company into 1,750,000 shares of our
common stock, Mr. Guez forgave $700,000 of indebtedness under the revolving
line
effective as of March 31, 2008 (which the Company has reflected as a
contribution of capital in the accompanying financial statements since it came
from its majority stockholder), the Company issued an 8% Senior Secured
Convertible Note with a 30-month term and a per share conversion price of $0.40
to Mr. Guez in the principal amount of approximately $1,618,093 in settlement
of
all amounts owed to Mr. Guez and his affiliates as of the date of the settlement
(other than certain amounts outside of the revolving line accrued during fiscal
2008 and set forth in the Settlement Agreement and Mutual Release), the Company
issued a Warrant to Mr. Guez to purchase 1,415,832 shares of its common stock
at
a per share exercise price of $0.40 and a term of 5 years, and the parties
mutually released each other from existing claims.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
8 -
Senior Secured Convertible Notes
Senior
Convertible Notes Payable consist of the following at March 31, 2008 and
December 31, 2007:
|
|
March
31, 2008
|
|
December
31, 2007
|
|
Senior
Convertible Notes Payable, Investor
|
|
$
|
2,000,000
|
|
$
|
-
|
|
Senior
Convertible Notes Payable, Finder
|
|
|
86,400
|
|
|
-
|
|
Accrued
Interest
|
|
|
9,797
|
|
|
-
|
|
Valuation
Discount
|
|
|
(571,410
|
)
|
|
-
|
|
|
|
|
|
|
|
|
|
Net
|
|
$
|
1,524,787
|
|
$
|
-
|
|
On
March
5, 2008, the Company entered into a Securities Purchase Agreement (the
“Securities Purchase Agreement”) with an institutional investor pursuant to
which the Company issued an aggregate of $2.0 million of thirty-month senior
secured convertible notes, and five-year warrants to purchase an aggregate
of
875,000 shares, to the investor. Pursuant to the terms of the
Securities Purchase Agreement, the Company may issue additional convertible
notes in the aggregate principal amount of up to $1,000,000 and additional
warrants to purchase up to an aggregate of 437,500 shares of common
stock.
The
convertible notes carry interest at 8% per annum on the unpaid/unconverted
principal balance, and are secured on a second priority basis against all of
the
assets of the Company. One-twenty-fourth of the principal amount of
the convertible notes, and accrued but unpaid interest, are due and payable
monthly in 24 installments beginning on the first day of each calendar month,
commencing on the first day of the first full calendar month occurring after
the
date which is six months following the original issue date. These
installment payments can be made in cash or through the issuance of stock
provided that certain equity conditions (as further set forth in the convertible
notes) are met. The convertible notes are convertible into
approximately 2,500,000 shares of common stock, based on a conversion price
equal to $0.80 per share. The additional convertible notes issuable
pursuant to the terms of the Securities Purchase Agreement would be convertible
into an aggregate maximum of an additional 1,250,000 shares of common stock
based on a conversion price of $0.80 per share.
The
convertible notes include customary anti-dilution provisions. While
the convertible notes are outstanding, if the Company issues or sells, or is
deemed to have issued or sold, any shares of common stock (other than certain
excluded issuances) for a consideration per share less than the per share
conversion price in effect immediately prior to such issuance or sale, then
immediately after such issuance or sale the per share conversion price then
in
effect pursuant to the convertible notes shall be reduced to the issuance price
per share of such newly issued or sold securities. The Company is not required
to issue, and the investors are not permitted to convert the convertible notes
into or exercise the warrants for, more than 42,000,000 shares of our common
stock in the aggregate.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
The
convertible notes are convertible at the option of the investor prior to their
maturity. Additionally, beginning twelve (12) months after their
issuance, the Company can require the investor to convert the convertible notes
to common stock if the volume-weighted average price (as determined pursuant
to
the convertible notes) of the common stock for any 20 out of 30 consecutive
trading days exceeds $1.60 and certain equity conditions (as further set forth
in the convertible notes) are met.
The
maturity date of the convertible notes is September 1, 2010. At any
time after six months following the original issue date, and provided that
certain equity conditions (as further set forth in the convertible notes) are
met, the Company may redeem the convertible notes for cash in an amount equal
to
the sum of (i) 120% of the then outstanding principal amount of the convertible
notes, (ii) all accrued but unpaid interest thereon, and (iii) all liquidated
damages and other amounts due in respect of the convertible notes.
The
Investor will be entitled to accelerate the maturity of the convertible notes
in
the event that there occurs an event of default under the convertible notes,
including, without limitation, if the Company fails to pay any amount under
the
convertible notes when due, if a judgment is rendered against the Company in
an
amount set forth in the convertible notes, if the Company breaches any
representation or warranty under the Securities Purchase Agreement or other
transaction documents, or if the Company fails to comply with the specified
covenants set forth in the convertible notes.
The
warrants have an exercise price of $1.00 per share. The warrants
include customary anti-dilution provisions. While the warrants are
outstanding, if the Company issues or sells, or is deemed to have issued or
sold, any shares of common stock (other than certain excluded issuances) for
a
consideration per share less than the per share exercise price in effect
immediately prior to such issuance or sale, then immediately after such issuance
or sale the per share exercise price shall be reduced to an amount determined
by
multiplying the exercise price then in effect by a fraction (a) the numerator
of
which shall be the sum of (1) the number of shares of common stock outstanding
immediately prior to such issue or sale, plus (2) the number of shares of common
stock which the aggregate consideration received by the Company for such
additional shares would purchase at such exercise price, and (b) the denominator
of which shall be the number of shares of common stock outstanding immediately
after such issue or sale, and the number of shares issuable upon exercise of
the
warrant shall be increased such that the aggregate exercise price payable
hereunder, after taking into account the decrease in the exercise price, shall
be equal to the aggregate exercise price prior to such adjustment. The Company
is not required to issue, and the investors are not permitted to convert the
convertible notes into or exercise the warrants for, more than 42,000,000 shares
of our common stock in the aggregate.
The
convertible notes and warrants provide that if the Company has not obtained
stockholder approval, the Company may not issue, upon conversion or exercise
of
the convertible notes and warrants, as applicable, a number of shares of common
stock which, when aggregated with any shares of common stock issued on or after
March 5, 2008 and prior to expiration of the warrants and the maturity of the
convertible notes (A) in connection with the conversion of any convertible
notes
issued pursuant to the Securities Purchase Agreement or as payment of principal,
interest or liquidated damages, (B) in connection with the exercise of any
warrants issued pursuant to the Securities Purchase Agreement, and (C) in
connection with any warrants issued to any registered broker-dealer as a fee
in
connection with the issuance of the securities pursuant to the Securities
Purchase Agreement, would exceed 19.99% of the number of shares of Common Stock
outstanding on March 4, 2008.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
On
March
5, 2008, the Company obtained the written consent of holders of a majority
of
the outstanding shares of the Company’s capital stock to the transactions
contemplated under the Securities Purchase Agreement and filed an information
statement to effectuate the actions approved therein on April 18,
2008.
In
connection with the transactions contemplated by the Securities Purchase
Agreement, the Company’s majority stockholders, Paul Guez (the Company’s
Chairman of the Board of Directors) and Elizabeth Guez, each entered into a
Lock-Up Letter Agreement pursuant to which they agreed not to offer, sell,
pledge or otherwise dispose of any shares of common stock of the Company for
a
6-month period following the closing and at all times thereafter during which
the Company has not been subject to the reporting requirements of Section 13
or
15(d) of the Exchange Act for the then preceding 90 days or has failed to file
all reports required for the preceding 12 months, subject to specified limited
exceptions.
In
connection with the transactions contemplated by the Securities Purchase
Agreement, the Company was required to pay its previously engaged placement
agent an aggregate fee of $120,000 (equal to 6% of the gross proceeds from
the
sale of the convertible note and warrant). The fees have been reflected as
deferred financing cost in the accompanying balance sheet and will be amortized
over the life of the convertible notes. The fees were payable $33,600 in cash
at
time of closing, and issued to the placement agent a convertible note in the
aggregate principal amount of $86,400 and a warrant (with the same terms as
the
warrants issued to the investor) to purchase 150,000 shares of Common Stock
at
an exercise price of $1.00 per share. The convertible note issued to the
placement agent is convertible into 108,000 shares of common Stock at a per
share price of $0.80, and has the same terms as the convertible notes issued
to
the Investor.
The
company determined that the initial fair value of the conversion feature of
the
convertible notes issued to the investor was $282,452 and the initial fair
value
of the warrants to the investor was $250,466 based upon the relative value
of
the Black Scholes valuation of the warrants and the underlying debt amount.
For
the Black Scholes calculation, the Company assumed no dividend yield, a risk
free interest rate of 4.5%, expected volatility of 48.2% and an expected term
of
the warrants of 5 years. The company determined that the initial fair value
of
the conversion feature of the convertible notes issued to the finder was $31,341
and the initial fair value of the warrants to the investor was $31,341 based
upon the relative value of the Black Scholes valuation of the warrants and
the
underlying debt amount. For the Black Scholes calculation, the Company assumed
no dividend yield, a risk free interest rate of 4.5%, expected volatility of
48.2% and an expected term of the warrants of 5 years.
The
aggregate fair value of warrants and the beneficial conversion of the notes
of
$595,600 have been reflected by the Company as a valuation discount and offset
to the carrying value of the convertible notes, are amortized over the term
of
the convertible notes. For the three months ended March 31, 2008, the Company
amortized $19,704 related to these transactions which is reflected as financing
costs in the Company’s consolidated statements of operations.
As
described in Note 13, on July 30, 2008, the Company amended the terms of the
Securities Purchase Agreement.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
9 - INCOME TAX
The
Company accounts for income taxes and the related accounts under the liability
method. Deferred tax liabilities and assets are determined based on the
difference between the financial statement and tax bases of assets and
liabilities using enacted rates expected to be in effect during the year in
which the basis differences reverse.
Due
to
the net operating losses for the periods as well as valuation allowances on
deferred tax assets, there was no provision for income taxes for the
three
months ended March 31, 2008 and 2007.
The
Company and its subsidiaries files income tax returns in the U.S. federal
jurisdiction and various state jurisdictions. With few exceptions, the Company
is no longer subject to U.S. federal or state and local income tax examinations
by tax authorities for years before 2002. The Internal Revenue Service (IRS)
commenced an examination of the Company’s U.S. income tax return for 2005 in the
first quarter of 2007 that was completed during the first quarter of 2008.
The
Company adopted the provisions of FASB Interpretation No.48, “Accounting for
Uncertainty in Income Taxes,” at the beginning of fiscal year 2007. The Company
has no gross unrecognized tax benefits outstanding at March 31, 2008 and
December 31, 2007.
The
Company recognizes accrued interest and penalties related to unrecognized tax
benefits in income tax expense.
NOTE
10 - STOCK OPTIONS AND WARRANTS
Stock
Options
Under
the
Company’s 2005 Stock Incentive Plan (the “Company Plan”), the Company may grant
qualified and nonqualified stock options and stock purchase rights to selected
employees. The Company reserved 2,500,000 shares of common stock for issuance
under the Company Plan.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
At
March
31, 2008 and December 31, 2007, options outstanding consist of the
following:
|
|
Options
outstanding
|
|
Options
exercisable
|
|
|
|
Exercise
price
|
|
Number
outstanding
|
|
Weighted
average
remaining
contractual
life (years)
|
|
Weighted
average exercise price
|
|
Number
exercisable
|
|
Weighted
average
exercise
price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
8.10
|
|
|
32,000
|
|
|
7.33
|
|
$
|
8.10
|
|
|
22,000
|
|
$
|
8.10
|
|
|
|
$
|
5.30
|
|
|
23,500
|
|
|
7.75
|
|
$
|
5.30
|
|
|
23,500
|
|
$
|
5.30
|
|
|
|
$
|
5.20
|
|
|
84,000
|
|
|
8.67
|
|
$
|
5.20
|
|
|
25,500
|
|
$
|
5.20
|
|
|
|
$
|
1.98
|
|
|
250,000
|
|
|
9.17
|
|
$
|
1.98
|
|
|
125,000
|
|
$
|
1.98
|
|
|
|
$
|
1.40
|
|
|
625,000
|
|
|
9.33
|
|
$
|
1.40
|
|
|
125,000
|
|
$
|
1.40
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1.40
- $8.10
|
|
|
1,014,500
|
|
|
9.14
|
|
$
|
2.16
|
|
|
321,000
|
|
$
|
2.67
|
|
Stock
based compensation expense relating to the vesting of such options, for the
three months ended March 31, 2008 and 2007, was $55,605 and $53,019,
respectively. As of March 31, 2008, the unamortized value of these option
awards was $301,077 which will be amortized as stock based compensation cost
over the average of approximately three years as the options vest.
As
of
March 31, 2008, the outstanding options have no intrinsic value.
Warrants
On
March
5, 2008, the Company entered into a Securities Purchase Agreement (the
“Securities Purchase Agreement”) as detailed at Note 8 and pursuant to the terms
of which the Company granted five-year warrants to purchase an aggregate of
1,025,000 shares.
At
March
31, 2008 and December 31, 2007, warrants outstanding are all exercisable and
consist of the following:
|
|
|
|
Weighted
|
|
|
|
Number
of
|
|
average
|
|
|
|
warrants
|
|
exercise
price
|
|
Balance
at December 31, 2007
|
|
|
-
|
|
$
|
-
|
|
Granted
|
|
|
1,025,000
|
|
$
|
1.00
|
|
Exercised
|
|
|
- |
|
$
|
- |
|
Cancelled
|
|
|
- |
|
$
|
- |
|
|
|
|
1,025,000
|
|
$
|
1.00
|
|
As
of
March 31, 2008, the outstanding warrants have no intrinsic value.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
11 - CO-BRANDING AGREEMENT
On
May
11, 2007, the Company entered into a Letter of Intent with William Adams, aka
will.i.am, of the Black Eyed Peas, pursuant to which the parties agreed to
enter
into (i) a co-branding agreement for the creation of a collection of premium
denim and denim-related apparel under the name “i.am Antik” or such other
similar name upon which the parties shall agree, and (ii) a joint venture
agreement pursuant to which the parties will design, develop, market,
manufacture and distribute apparel products bearing the “I.Am” trademark subject
to a license agreement. Prior to their entry into the Letter of Intent, the
parties had no material relationship with each other. The Letter of Intent
was
effective May 11, 2007 and was approved and certified by the stockholders of
the
Company on June 21, 2007.
Mr.
Adams
was to have performed specific design, marketing and promotional services,
and
in consideration of such services the Company issued to Mr. Adams as base
compensation 175,000 shares of its common stock, valued at $ $108,356, and
to be
amortized as earned over a one year period beginning in May 2007 when the shares
were issued.. Amortization of the value of the shares issued resulted in the
recognition of compensation expense during the year ended December 31, 2007
of
$58,948, leaving an unamortized balance at that date of $49,408.
The
Company and Mr. Adams have agreed to terminate the agreement, with Mr. Adams
retaining the 175,000 shares previously issued. Accordingly, during the three
months ended March 31, 2008, the $49,408 has been amortized and is reflected
as
compensation expense for that period.
NOTE
12 - COMMITMENTS AND CONTINGENCIES
License
agreements:
On
July
5, 2005 the Company entered into a ten-year license agreement with Yanuk Jeans,
LLC. Under the terms of the agreement, the Company became the exclusive licensor
for the design, development, manufacture,
sale,
marketing and distribution of the “Yanuk” brand products to the wholesale and
retail trade. On October 6, 2005, the Company entered into a five-year license
agreement with Yanuk Jeans, LLC. Under the terms of the agreement, the Company
became the exclusive licensor for the design, development, manufacture, sale,
marketing and distribution of Yanuk Jeans, LLC’s “U” brand products to the
wholesale and retail trade.
On
January 12, 2007, the Company entered into a License Agreement with Faith
Connexion S.A.R.L., a company formed under the laws of France (“Faith”).
Pursuant to the License Agreement, Faith granted an exclusive right and
license
to use
the Faith Connexion trademark for the manufacture, marketing, promotion, sale,
distribution and other exploitation of men’s and women’s hoodies, t-shirts,
sweatshirts, sweatpants and hats in North America (including Canada), South
America, Japan and Korea. Compensation for use of the Faith Connexion trademark
will consist of a royalty calculated as 9% of the Company’s net sales arising
from products bearing the Faith Connexion trademark in the first two years,
and
9.5% of net sales in year three. The License Agreement has a term of three
years
as follows: the first year is comprised of 18 months, year two is comprised
of
the next six months, and year three is comprised of the following 12 months.
Per
the agreement, the Company has agreed to a guarantee payment of royalties on
identified minimum net sales amounts ranging from $3.5 to $10 million over
each
of the three years (equal to minimum royalties of $450,000, $315,000, and
$950,000, in each of years one (first eighteen months), two (next 6 months)
and
three (next twelve months), respectively, and to spend at least 3% of actual
net
sales amounts on marketing and advertising the Faith Connexion trademarked
products in the territory. During the three months ended March 31, 2008 and
2007, the Company recorded royalty expense of $172,045 and $75,000,
respectively.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
On
April
27, 2007, Antik Denim, LLC (“Antik”), a California limited liability company and
our wholly-owned subsidiary, executed a License Agreement (the “Mercier License
Agreement”) dated to be effective as of April 18, 2007, by and between Antik and
Mercier SARL, a company formed under the laws of France (“Mercier”). Pursuant to
terms of the Mercier License Agreement, Antik granted an exclusive right and
license to use the Antik Denim trademark for the manufacture, marketing,
promotion, sale, distribution and other exploitation of denim and sportswear
apparel in Europe. Compensation for use of the Antik Denim trademark will
consist of a royalty calculated as 10% of Mercier’s net sales arising from
products bearing the Antik Denim trademark. The Mercier License Agreement has
an
initial term of twenty (20) months, and includes four (4) one (1)-year extension
options available to Mercier to the extent it achieves specified minimum net
sales. Mercier has agreed to guarantee payment of royalties on an identified
minimum net sales amount of $2.5 million during the initial twenty (20) month
term, and on identified minimum net sales amounts ranging from $2.5 million
to
$10 million over the eligible extension terms. In connection with these minimum
net sales, the Mercier License Agreement provides for an upfront minimum
guarantee advance of $250,000 which has been received by the Company and of
which $112,500 is recorded as deferred revenue as of March 31, 2008, and an
aggregate of minimum royalty payments of $2.5 million for the years 2009 though
2012 assuming the Mercier License Agreement is renewed at the end of
2008.
Legal
proceedings:
On
July
17, 2006, Taverniti Holdings, LLC (THL), an independent entity not owned
or
controlled by us, and Jimmy Taverniti, an individual, filed an action in
the
United States District Court for the Central District of California (Case
No.
CV06-4522 DDP) against Henri Levy alleging that defendant has infringed THL’s
mark J. TAVERNITI and further infringed Mr. Taverniti’s commercial publicity
rights, by defendant’s adoption and use of the mark TAVERNITY. We have been
informed that in a counter-claim against THL, defendant has also named our
company and Taverniti as purported counter defendants. As it relates to
Taverniti and our company, the counter claim seeks only a declaration of
rights,
to the effect that Taverniti and our company have conspired with THL to defeat
defendant’s alleged rights in his TAVERNITY mark, and a further declaration that
as a result of such alleged misconduct, neither Taverniti nor our company
have
any enforceable rights in the TAVERNITI SO JEANS mark. It does not seek any
monetary relief against either Taverniti or our company.
We
have
taken the position that neither Taverniti nor our company can properly be
added
as new parties to this lawsuit by naming us as counter defendants, and that
we
can only be named as third party defendants. The defendant has not, as yet,
served either Taverniti or us with the counter claim, and so we are not yet
formally parties to the case. At such time, if ever, that the defendant takes
the necessary action to formally serve us with the counter claim, we intend
to
deny all the material charging allegations of the defendant’s claim for
declaratory relief and to vigorously defend against his claims. At this time,
we
are unable to express an opinion whether it is likely that the defendant
will
take such actions, or whether, if he does, it is likely or unlikely that
he will
be able to prevail against us on his claim for declaratory relief.
In
2007, DF
produzioni SPA filed an action in the Court of Bergamo, Italy, against Taverniti
and the Company seeking to ascertain the defendants’ liability for alleged
serious failures in the context of an oral distribution/supply agreement
between
the parties; the reimbursement of approximately €660,208 in damages or such
other amount determined by the court as compensatory for amounts outstanding
alleged to equal approximately €286,008; and to reduce the price of the supply
to the plaintiff in an amount commensurate with the alleged damage caused
by the
defendants’ conduct. The first hearing is scheduled for June 11, 2008, and the
Company is required to file its appearance brief with its counterclaims at
least
20 days prior to the hearing date. While management believes that the Company
has successful counterclaims against the plaintiff, it is unable at this
time to
express an opinion whether it is likely that the plaintiff will be able to
prevail against the Company on its claims.
On,
August 4, 2008, the Company was served with a complaint filed in the Superior
Court of the State of California County of Los Angeles, District Court, by
LIT
Commerce Distribution Center, LLC, the owner of the Company’s former premises,
alleging that the Company breached a lease agreement regarding its former
premises and seeking damages in an amount not less than $1.25 million plus
interest and attorneys’ fees. The Company intends to vigorously defend the
lawsuit. The Company also recently learned of a $205,782.24 judgment LIT
Commerce Distribution Center, LLC obtained against it without its knowledge
regarding the former premises. The Company’s legal counsel in this matter will
seek to overturn the judgment in the immediate future. While management believes
that the Company has successful counterclaims against the plaintiff, it is
unable at this time to express an opinion whether it is likely that the
plaintiff will be able to prevail against the Company on its
claims.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
NOTE
13 - SUBSEQUENT EVENTS
Amendment
to Senior Secured Convertible Notes
On
July
30, 2008, the Company entered into an Amendment Agreement (“Amendment
Agreement”) to the Securities Purchase Agreement dated March 5, 2008 (the
“Securities Purchase Agreement”) with Gemini Master Fund, Ltd. as described in
Note 8 (the “Investor”), pursuant to which the Company issued a thirty-month
senior secured convertible note in the principal amount of $2,000,000 (the
“Existing Note”), and a five-year warrant to purchase an aggregate of 875,000
shares of the Company’s common stock (the “Existing Warrant”). The transactions
contemplated by the Amendment Agreement closed on August 12, 2008.
Under
the
terms of the Amendment Agreement, the Company and the Investor agreed, in
exchange for the Investor’s waiver of certain breaches under the Existing Note,
to exchange the Existing Note for an amended and restated 8% senior secured
convertible note (“Amended and Restated Note”), and to exchange the Existing
Warrant for an amended and restated warrant (“Amended and Restated Warrant”).
The Amended and Restated Note has an aggregate principal amount of $2,500,000
and a term of approximately thirty months commencing from March 5, 2008. The
Amended and Restated Warrant has a term of five years commencing from March
5,
2008 and entitles the Investor to initially purchase an aggregate of 2,187,500
shares of the Company’s common stock (subject to adjustment as provided in the
Amended and Restated Warrant, including pursuant to economic anti-dilution
adjustments) at an exercise price of $0.40 per share.
The
Amended and Restated Note carries interest at 8% per annum on the
unpaid/unconverted principal balance, and is secured on a second priority basis
against all of the assets of the Company. One-twenty-fourth of the principal
amount of the Amended and Restated Note, and accrued but unpaid interest, are
due and payable monthly in 24 installments beginning on October 1, 2008. These
installment payments can be made in cash or through the issuance of stock
provided that certain equity conditions (as further set forth in the Amended
and
Restated Note) are met. The Amended and Restated Note is convertible, at the
option of the Investor prior to its maturity, into approximately 6,250,000
shares of the Company’s common stock (subject to adjustment as provided in the
Amended and Restated Note, including pursuant to economic anti-dilution
adjustments), based on a conversion price equal to $0.40 per share.
Additionally, beginning March 5, 2009, the Company can require the Investor
to
convert the Amended and Restated Note into shares of the Company’s common stock
if the volume-weighted average price (as determined pursuant to the Amended
and
Restated Note) of the common stock for any 20 out of 30 consecutive trading
days
exceeds $0.80 and certain equity conditions (as further set forth in the Amended
and Restated Note) are met.
The
Amended and Restated Note and the Amended and Restated Warrant provide that
if
the Company has not obtained stockholder approval, the Company may not issue,
upon conversion or exercise of the Amended and Restated Note and the Amended
and
Restated Warrant, as applicable, a number of shares of the Company’s common
stock which, when aggregated with any shares of the Company’s common stock
issued on or after March 5, 2008 and prior to expiration of the Amended and
Restated Warrant and the maturity of the Amended and Restated Note (A) in
connection with the conversion of the Amended and Restated Note or as payment
of
principal, interest or liquidated damages, (B) in connection with the exercise
of the Amended and Restated Warrant, and (C) in connection with any warrants
issued to any registered broker-dealer as a fee in connection with the issuance
of the securities pursuant to the Securities Purchase Agreement, would exceed
19.99% of the number of shares of the Company’s common stock outstanding on
March 4, 2008.
BLUE
HOLDINGS, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR
THE THREE MONTHS ENDED MARCH 31, 2008 AND 2007
(UNAUDITED)
On
July
30, 2008, the Company obtained the written consent of holders of a majority
of
the outstanding shares of the Company’s capital stock to the transactions
contemplated under the Amendment Agreement and intends to file an information
statement to effectuate the actions approved therein in the immediate
future.
The
Amended and Restated Note and the Amended and Restated Warrant also reduced
to
$0.30 the minimum trading price for the Company’s common stock in connection
with revisions to one of the equity conditions included therein. Except for
the
provisions described above, the terms of the Amended and Restated Note and
Amended and Restated Warrant are the same as those of the Existing Note and
Existing Warrant, respectively.
Also
in
connection with the Amendment Agreement, the Company and its previously engaged
placement agent agreed, in exchange for the placement agent’s waiver of certain
breaches under the original note in the principal amount of $86,400 issued
to
the placement agent (the “Agent Note”), to exchange the Agent Note for an
amended and restated 8% senior convertible note in the principal amount of
$108,000 (convertible into 270,000 shares of the Company’s common stock at a per
share price of $0.40) with terms substantially similar to the Amended and
Restated Note (other than the grant of a security interest) (the “Amended and
Restated Agent Note”), and to exchange of the warrant to purchase 150,000 shares
of the Company’s common stock originally issued to the placement agent, for a
new warrant to purchase 244,500 shares of the Company’s common stock, with terms
substantially similar to the Amended and Restated Warrant (the “Amended and
Restated Agent Warrant”).
The
Amended
and Restated Note, the Amended and Restated Warrant, the Amended and Restated
Agent Note and the Amended and Restated Agent Warrant were issued promptly
following the fifteenth day after the filing of a Notification Form: Listing
of
Additional Shares with the Nasdaq Stock Market.
Closure
of Retail Stores
During
the month of June, 2008, the Company decided to close its retail operations.
Accordingly, the San Francisco store was assigned to an unrelated retailer
and
its operations ceased effective August 1, 2008. The Company is currently working
to assign or otherwise dispose of the Los Angeles store. The Company estimates
that it will incur a loss of $528,617 related to closure of the stores, that
will be reported in the period ending June 30, 2008.
Other
On
September 15, 2008, the Company received notification from the Nasdaq Hearings
Panel (the “Panel”) that the Panel had determined to delist the Company’s shares
from the Nasdaq Capital Market and suspend trading of those shares effective
at
the open of business on Wednesday, September 17, 2008. The Company’s common
stock is now quoted on the Pink Sheets electronic over-the-counter market
maintained by the Pink OTC Markets, Inc.
ITEM
2. MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Forward-Looking
Statements
Statements
made in this Form 10-Q (the “Quarterly
Report”) that are not historical or current facts are “forward-looking
statements” made pursuant to the safe harbor provisions of Section 27A of the
Securities Act of 1933, as amended (the “Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). We intend that
such forward-looking statements be subject to the safe harbors for such
statements. We wish to caution readers not to place undue reliance on any such
forward-looking statements, which speak only as of the date made. Any
forward-looking statements represent management’s best judgment as to what may
occur in the future. The forward-looking statements included herein are based
on
current expectations that involve numerous risks and uncertainties. Assumptions
relating to the foregoing involve judgments with respect to, among other things,
future economic, competitive and market conditions and future business
decisions, all of which are difficult or impossible to predict accurately and
many of which are beyond our control. Although we believe that the assumptions
underlying the forward-looking statements are reasonable, any of the assumptions
could be inaccurate and, therefore, there can be no assurance that the
forward-looking statements included in this Quarterly Report will prove to
be
accurate. In light of the significant uncertainties inherent in the
forward-looking statements included herein, the inclusion of such information
should not be regarded as a representation by us or any other person that our
objectives and plans will be achieved. We disclaim any obligation subsequently
to revise any forward-looking statements to reflect events or circumstances
after the date of such statement or to reflect the occurrence of anticipated
or
unanticipated events.
The
words
“we,” “us,” “our,” and the “Company,” refer to Blue Holdings, Inc. The words or
phrases “may,” “will,” “expect,” “believe,” “anticipate,” “estimate,”
“approximate,” or “continue,” “would be,” “will allow,” “intends to,” “will
likely result,” “are expected to,” “will continue,” “is anticipated,”
“estimate,” “project,” or similar expressions, or the negative thereof, are
intended to identify “forward-looking statements.” Actual results could differ
materially from those projected in the forward looking statements as a result
of
a number of risks and uncertainties, including but not limited to: (a) our
failure to implement our business plan within the time period we originally
planned to accomplish; and (b) other risks that are discussed in this Quarterly
Report or included in our previous filings with the Securities and Exchange
Commission (“SEC”).
Description
of Business
Overview
Blue
Holdings, Inc. designs, develops, markets and distributes high end fashion
jeans, apparel and accessories under the brand name names Antik
Denim,
Yanuk,
U, and
Taverniti
So Jeans.
We plan
to also design, develop, market and distribute jeans and accessories under
other
brands that we may license or acquire from time to time. Our products currently
include jeans, jackets, belts, purses and T-shirts. We currently sell our
products in the United States, Canada, Japan and the European Union directly
to
department stores and boutiques and through distribution arrangements in certain
foreign jurisdictions. We are headquartered in Commerce, California and maintain
two showrooms in New York and Los Angeles. We opened a retail store in Los
Angeles during August 2005 and another in San Francisco in September 2006,
both
of which, management has determined, will be closed as soon as reasonably
possible.
Corporate
Background
We
were
incorporated in the State of Nevada on February 9, 2000 under the name Marine
Jet Technology Corp. From our inception through January 2005, we focused on
developing and marketing boat propulsion technology. Between January and
February 2005, we entered into separate transactions whereby, among other
matters, Keating Reverse Merger Fund, LLC (“KRM Fund”), an existing stockholder
of the Company, agreed to purchase a substantial majority of our outstanding
common stock, and Intellijet Marine, Inc., a company formed by our former
majority stockholder and principal executive officer and director, Jeff P.
Jordan, acquired all of our boat propulsion technology assets and assumed all
of
our then existing liabilities.
Between
February 4, 2005 and April 29, 2005, we existed as a public “shell” company with
nominal assets.
Significant
Developments
On
March
5, 2008, we entered into a Securities Purchase Agreement (the “Securities
Purchase Agreement”) with an institutional investor pursuant to which we issued
a $2.0 million thirty-month senior secured convertible note (the “Existing
Note”), and a five-year warrant to purchase an aggregate of 875,000 shares (the
“Existing Warrant”), to the investor. Pursuant to the terms of the Securities
Purchase Agreement, we had
the
option to issue additional convertible notes in the aggregate principal amount
of up to $1,000,000 and additional warrants to purchase up to an aggregate
of
437,500 shares of common stock. The Existing Note carried interest at 8% per
annum on the unpaid/unconverted principal balance, and was secured on a second
priority basis against all of our assets. One-twenty-fourth of the principal
amount of the Existing Note, and accrued but unpaid interest, were due and
payable monthly in 24 installments beginning on first day of each calendar
month, commencing on the first day of the first full calendar month occurring
after the date which was six months following the original issue date. These
installment payments could be made in cash or through the issuance of stock
provided that certain equity conditions (as further set forth in the Existing
Note) were met. The Existing Note was convertible into approximately 2,500,000
shares of our common stock, based on a conversion price equal to $0.80 per
share. The additional convertible notes issuable pursuant to the terms of the
Securities Purchase Agreement would have been convertible into an aggregate
maximum of an additional 1,250,000 shares of common stock based on a conversion
price of $0.80 per share.
On
July
30, 2008, we entered into an Amendment Agreement (“Amendment Agreement”) to the
Securities Purchase Agreement pursuant to which we agreed to exchange the
Existing Note for an amended and restated 8% senior secured convertible note
(“Amended and Restated Note”), and to exchange the Existing Warrant for an
amended and restated warrant (“Amended and Restated Warrant”), in consideration
of the investor’s waiver of certain breaches under the Existing Note. The
transactions contemplated by the Amendment Agreement closed on August 12, 2008.
The Amended and Restated Note has substantially the same terms as the Existing
Note except that it has an aggregate principal amount of $2,500,000 and is
convertible, at the option of the investor prior to its maturity, into
approximately 6,250,000 shares of our common stock (subject to adjustment as
provided in the Amended and Restated Note, including pursuant to economic
anti-dilution adjustments), based on a conversion price equal to $0.40 per
share. Additionally, beginning March 5, 2009, we can require the Investor to
convert the Amended and Restated Note into shares of our common stock if the
volume-weighted average price (as determined pursuant to the Amended and
Restated Note) of our common stock for any 20 out of 30 consecutive trading days
exceeds $0.80 and certain equity conditions (as further set forth in the Amended
and Restated Note) are met.
The
Amended and Restated Warrant has substantially the same terms as the Existing
Warrant except that it entitles the investor to initially purchase an aggregate
of 2,187,500 shares of our common stock (subject to adjustment as provided
in
the Amended and Restated Warrant, including pursuant to economic anti-dilution
adjustments) at an exercise price of $0.40 per share.
In
conjunction with the issuance of the Existing Note, Mr. Paul Guez, our majority
stockholder converted $1.4 million of net advances made to us, subsequent to
December 31, 2007, into 1,750,000 shares of our common stock. The conversion
price was $0.80 per share, which represented the market price on the date of
conversion.
In
early
May 2008, Mr. Guez informed us of claims for sums he believed were due and
owing
him pursuant to advances made to and payments made on behalf of our company
during fiscal 2007 that were separate from a revolving line of credit advanced
by Mr. Guez. In light of this dispute, our Audit Committee conducted an internal
investigation which revealed accounting errors in the our related party accounts
pertaining to payables due to Mr. Guez and his affiliated entities in the
aggregate amount of $2,009,435, and which resulted in a revised amount due
Mr.
Guez of $1,398,842 as of December 31, 2007 under the above discussed line of
credit. As such, we determined that it was necessary to restate its previously
filed December 31, 2007 financial statements. As of March 31, 2008, the amount
due Mr. Guez under the revolving line of credit was $1,618,093.
On
September 23, 2008, the parties entered into a Settlement Agreement and Mutual
Release pursuant
to which we rescinded Mr. Guez’s conversion of $1,400,000 of net advances made
to us into 1,750,000 shares of our common stock, Mr. Guez forgave $700,000
of
indebtedness under our line of credit with him (described below), we issued
an
8% Senior Secured Convertible Note with a 30-month term and a per share
conversion price of $0.40 to Mr. Guez in the principal amount of approximately
$1,618,093 in settlement of all amounts owed to Mr. Guez and his affiliates
as
of the date of the settlement (other than certain amounts outside of the line
of
credit accrued during fiscal 2008 and set forth in the settlement agreement),
we
issued a Warrant to Mr. Guez to purchase 1,415,832 shares of our common stock
at
a per share exercise price of $0.40 and a term of 5 years, and we, along with
Mr. Guez, mutually released each other from existing claims.
On
September 15, 2008, we received notification from the Nasdaq Hearings Panel
(the
“Panel”) that the Panel had determined to delist our shares from the Nasdaq
Capital Market and suspend trading of those shares effective at the open of
business on Wednesday, September 17, 2008. Our common stock is now quoted on
the
Pink Sheets electronic over-the-counter market maintained by the Pink OTC
Markets, Inc., and we anticipate that our common stock will be quoted on the
OTC
Bulletin Board in the near future provided that a market maker files the
appropriate application with, and such application is cleared by, the
NASD.
Results
of Operations
The
following table sets forth, for the periods indicated, certain data derived
from
our condensed consolidated statements of operations and certain such data
expressed as a percentage of net sales:
|
|
Three
Months Ended March 31,
|
|
|
|
2008
|
|
2007
|
|
Net
Sales
|
|
$
|
8,554,119
|
|
$
|
8,440,222
|
|
Gross
Profit
|
|
$
|
753,438
|
|
$
|
4,832,026
|
|
Percentage
of net sales
|
|
|
9
|
%
|
|
57
|
%
|
Selling,
distribution & administrative expenses
|
|
$
|
4,855,762
|
|
$
|
4,520,568
|
|
Percentage
of net sales
|
|
|
57
|
%
|
|
54
|
%
|
Net
loss before provision for income taxes
|
|
$
|
(4,555,545
|
)
|
$
|
(26,686
|
)
|
Percentage
of net sales
|
|
|
-53
|
%
|
|
0
|
%
|
Net
loss
|
|
$
|
(4,555,545
|
)
|
$
|
(26,686
|
)
|
Percentage
of net sales
|
|
|
-53
|
%
|
|
0
|
%
|
Three
Months Ended March 31, 2008 vs. 2007
During
the first quarter, net sales, and in particular gross margin, were impacted
by
our strategic decision to reduce excess inventory through increased sales volume
of discounted merchandise and substantially increased markdown levels. In
addition, poor product assortment, late deliveries and the softening of the
denim market had a significant impact on both net sales and gross margin. Net
sales increased slightly from $8.4 million for the three months ended March
31,
2007 to $8.6 million for the three months ended March 31, 2008. The sales were
negatively impacted due to the recessionary economic climate, weak premium
denim
market and lack of any material European distribution. Secondly, we are still
recovering from our third and fourth quarter delivery problems, which have
continued to hinder the Company’s performance.
Gross
profit for the three months ended March 31, 2008 decreased to $0.75 million
from
$4.83 million in the three months ended March 31, 2007. The decrease in gross
profit was largely due to heavy discounts on sale of $2 million of old inventory
from prior seasons, and also due to production inefficiencies resulting in
diluted gross profit. During the first quarter, the Company experienced a
dramatic reduction in the price at which it could sell its off-price product.
There is a rather restricted avenue of distribution for off-price denim product
and that market at this time is deluged with excess inventory, resulting in
substantially lower selling prices.
Selling,
distribution and administrative expenses for the three months ended March 31,
2008 totaled $4.86 million compared with $4.52 million for the three months
ended March 31, 2007. The principal components in the first quarter of 2008
were
payroll and related costs of $1.58 million (compared to $1.75 million in the
first quarter last year), advertising and trade show expenses of $0.44 million
($0.52 million in the same period of 2007), and professional fee expenses of
0.33 million ($0.51 million in the same period of 2007). The first quarter
of
2008 was adversely impacted by design and sampling costs totaling $0.39 (versus
$0.09 million in the previous year), including writeoff of $0.25 million of
samples previously valued as inventory. Also, credit and collection costs of
$0.49 million in the first quarter of 2008 (versus $0.14 million in the previous
year) increased, largely due to a charge of $0.30 million taken as a reserve
against due from factor.
Net
Loss
after provision for taxes in the first quarter of 2008 was $4.56 million or
53%
of net sales compared to $0.027 million or 0 % of net sales in the first quarter
of 2007. Basic and diluted loss per share increased to $0.171 from $0.005 in
the
same period of last year. For the three months ended March 31, 2008, the Company
provided $0 million for income tax compared to $0 million for the three months
ended March 31, 2007.
Liquidity
and Capital Resources
The
accompanying condensed consolidated financial statements have been prepared
in
conformity with accounting principles generally accepted in the United States
of
America, which contemplate continuation of the Company as a going concern.
However, we utilized cash of $1.6 million in operating activities during the
three months ended March 31, 2008, and had a stockholders’ deficiency of
$5,548,601 at March 31, 2008. The deficit was primarily due to the quarterly
operating loss of $4.56 million, $1.49 million in accounts receivable, as well
as reductions of other current liabilities totaling $0.255 million. These uses
of cash were partially offset by a decrease in inventories of $4.2 million,
a
reduction in prepaid expenses and other current assets of $0.54 million and
an
increase in accounts payable of $0.068 million. Net cash provided by financing
activities was $1.6 million due to proceeds from issuance of convertible notes
of $2.1 million, an increase in advances from majority stockholder of $0.9
million, less a reduction in short term borrowings of $1.4 million. These
factors raise substantial doubt about our ability to continue as a going
concern. The condensed consolidated financial statements do not include any
adjustments relating to the recoverability and classification of recorded asset
amounts, or amounts and classification of liabilities that might result from
this uncertainty. Our independent registered public accounting firm has included
an explanatory paragraph expressing doubt about our ability to continue as
a
going concern in their audit report for the fiscal year ended December 31,
2007
(as restated).
Our
primary source of liquidity is expected to be cash flow generated from
operations, cash and cash equivalents currently on hand, and working capital
attainable through both our factor and our majority stockholder. We have already
in 2008 sought to, and will continue to seek to, finance future capital needs
through various means and channels, such as issuance of long-term debt or sale
of equity securities. While we anticipate a tax recovery and refund in the
range
of $1.4 million during 2008, we have agreed to deliver the amount recovered
to
our factor.
On
March
5, 2008, we entered into a Securities Purchase Agreement (the “Securities
Purchase Agreement”) with an institutional investor pursuant to which we issued
a $2.0 million thirty-month senior secured convertible note (the “Existing
Note”), and a five-year warrant to purchase an aggregate of 875,000 shares (the
“Existing Warrant”), to the investor. Pursuant to the terms of the Securities
Purchase Agreement, we had
the
option to issue additional convertible notes in the aggregate principal amount
of up to $1,000,000 and additional warrants to purchase up to an aggregate
of
437,500 shares of common stock. The Existing Note carried interest at 8% per
annum on the unpaid/unconverted principal balance, and was secured on a second
priority basis against all of our assets. One-twenty-fourth of the principal
amount of the Existing Note, and accrued but unpaid interest, were due and
payable monthly in 24 installments beginning on first day of each calendar
month, commencing on the first day of the first full calendar month occurring
after the date which was six months following the original issue date. These
installment payments could be made in cash or through the issuance of stock
provided that certain equity conditions (as further set forth in the Existing
Note) were met. The Existing Note was convertible into approximately 2,500,000
shares of our common stock, based on a conversion price equal to $0.80 per
share. The additional convertible notes issuable pursuant to the terms of the
Securities Purchase Agreement would have been convertible into an aggregate
maximum of an additional 1,250,000 shares of common stock based on a conversion
price of $0.80 per share.
On
July
30, 2008, we entered into an Amendment Agreement (“Amendment Agreement”) to the
Securities Purchase Agreement pursuant to which we agreed to exchange the
Existing Note for an amended and restated 8% senior secured convertible note
(“Amended and Restated Note”), and to exchange the Existing Warrant for an
amended and restated warrant (“Amended and Restated Warrant”), in consideration
of the investor’s waiver of certain breaches under the Existing Note. The
transactions contemplated by the Amendment Agreement closed on August 12, 2008.
The Amended and Restated Note has substantially the same terms as the Existing
Note except that it has an aggregate principal amount of $2,500,000 and is
convertible, at the option of the investor prior to its maturity, into
approximately 6,250,000 shares of our common stock (subject to adjustment as
provided in the Amended and Restated Note, including pursuant to economic
anti-dilution adjustments), based on a conversion price equal to $0.40 per
share. Additionally, beginning March 5, 2009, we can require the Investor to
convert the Amended and Restated Note into shares of our common stock if the
volume-weighted average price (as determined pursuant to the Amended and
Restated Note) of our common stock for any 20 out of 30 consecutive trading
days
exceeds $0.80 and certain equity conditions (as further set forth in the Amended
and Restated Note) are met. The Amended and Restated Warrant has substantially
the same terms as the Existing Warrant except that it entitles the investor
to
initially purchase an aggregate of 2,187,500 shares of our common stock (subject
to adjustment as provided in the Amended and Restated Warrant, including
pursuant to economic anti-dilution adjustments) at an exercise price of $0.40
per share.
In
conjunction with the issuance of the Existing Note, Mr. Paul Guez, our majority
stockholder converted $1.4 million of net advances made to us, subsequent to
December 31, 2007, into 1,750,000 shares of our common stock. The conversion
price was $0.80 per share, which represented the market price on the date of
conversion. On September 23, 2008, the parties entered into a Settlement
Agreement and Mutual Release pursuant to which we rescinded Mr. Guez’s
conversion of $1,400,000 of net advances made to us into 1,750,000 shares of
our
common stock, Mr. Guez forgave $700,000 of indebtedness under our line of credit
with him as of March 31, 2008 (described below), we issued an 8% Senior Secured
Convertible Note with a 30-month term and a per share conversion price of $0.40
to Mr. Guez in the principal amount of approximately $1,618,093 in settlement
of
all amounts owed to Mr. Guez and his affiliates as of the date of the settlement
(other than certain amounts outside of the line of credit accrued during fiscal
2008 and set forth in the settlement agreement), we issued a Warrant to Mr.
Guez
to purchase 1,415,832 shares of our common stock at a per share exercise price
of $0.40 and a term of 5 years, and we, along with Mr. Guez, mutually released
each other from existing claims.
We
use a
factor, FTC Commercial Corp., for working capital and credit administration
purposes. Under the various factoring agreements entered into separately by
Blue
Holdings, Antik and Taverniti So Jeans, LLC (“Taverniti”), the factor purchases
all the trade accounts receivable assigned by us and assumes all credit risk
with respect to those accounts approved by it.
The
factor agreements provide that we can obtain an amount up to 90% of the value
of
our purchased customer invoices, less a reserve of 10% of unpaid accounts
purchased and 100% of all accounts that are disputed. The factor agreements
renew
automatically,
subject to 120 days’ termination notice from any party. We receive amounts
against purchased customer invoices on a recourse basis or a non-recourse basis
under these agreements. Amounts received against customer invoices purchased
on
a recourse basis are classified as “short-term borrowings” and amounts received
against customer invoices purchased on a non-recourse basis are reflected on
a
net basis against such receivables purchased by the factor in “due from factor”
on the balance sheets included in our financial statements.
In
addition, the factor also makes available to all three companies a combined
line
of credit up to the lesser of $2.4 million and
50%
of the value of eligible raw materials and finished goods. As
of
March 31, 2008, the factor made advances to us of $12,396,782 of which we drew
down $4.50 million against inventory, $1.25 million against accounts receivable
and $5.65 million against personal guarantees of Paul Guez, our Chairman and
majority stockholder, and the living trust of Paul and Elizabeth Guez. As we
are
in an over-advance position, we have agreed with the factor that we will pledge
to them the income tax receivable of approximately $1,400,000. Furthermore,
we
have agreed with the factor that approximately $2,500,000 of outstanding
receivables owed to us and included in outstanding accounts receivable at March
31, 2008 will be paid directly to the factor by the customer in monthly payments
of $250,000 that are due through approximately April 2009 to reduce amounts
outstanding under the factor agreements.
From
time
to time, our majority stockholder, Mr. Paul Guez, has made advances to us to
support our working capital needs. These advances were non-interest bearing.
On
July 1, 2006, Mr. Guez converted the advances to a line of credit in an
agreement with us. The line of credit allows us to borrow from him up to a
maximum of $3 million at an annual interest rate of 6%. We may repay the
advances in full or in part at any time until the credit line expires on
December 31, 2008. During the three months ended March 31, 2008, Mr. Guez made
$919,251 of advances to us under the credit line.
On
March
5, 2008, we entered into an agreement with Mr. Guez whereby Mr. Guez agreed
to
cancel $1,400,000 of indebtedness under the revolving line in consideration
of
the issuance of 1,750,000 shares of the Company’s common stock. In early May
2008, Mr. Guez informed us of claims for sums he believed were due and owing
him
pursuant to advances made to and payments made on our behalf during fiscal
2007
that were separate from the revolving line. In light of this dispute, our Audit
Committee conducted an internal investigation which revealed accounting errors
in the Company’s related party accounts pertaining to payables due to Mr. Guez
and his affiliated entities in the aggregate amount of $2,009,435, and which
resulted in a revised amount due Mr. Guez of $1,398,842 as of December 31,
2007
under the line of credit agreement. As of March 31, 2008, the balance of these
advances was $1.6 million.
Critical
Accounting Policies
Estimates
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of
the financial statements and the reported amounts of revenues. On an ongoing
basis, we evaluate estimates, including those related to returns, discounts,
bad
debts, inventories, intangible assets, income taxes, contingencies and
litigations. We base our estimates on historical experience and on various
assumptions that are believed to be reasonable under the circumstances, the
results of which form the basis for making judgments about the carrying values
of assets and liabilities that are not readily apparent from other sources.
Actual results may differ from these estimates under different assumptions
or
conditions.
Revenue
Revenue
is recognized when merchandise has been shipped against a customer’s
written purchase order, the risk of ownership has passed, selling price has
been
fixed and determined and collectibility is reasonably assured either through
payment received, or fulfillment of all the terms and conditions of the
particular purchase order. Revenue is recorded net of estimated returns, charge
backs and markdowns based on management’s estimates and historical
experience.
Accounts
Receivable - Allowance for Returns, Discounts and Bad
Debts:
We
evaluate our ability to collect accounts receivable and the circumstances
surrounding chargebacks (disputes from the customer) based upon a combination
of
factors. In circumstances where we are aware of a specific customer’s
inability to meet its financial obligations (such as in the case of bankruptcy
filings or substantial downgrading by credit sources), a specific reserve for
bad debts is taken against amounts due to reduce the net recognized receivable
to the amount reasonably expected to be collected. For all other customers,
we
recognize reserves for bad debts and uncollectible chargebacks based on our
historical collection experience. If our collection experience deteriorates
(for
example, due to an unexpected material adverse change in a major customer’s
ability to meet its financial obligations to us), the estimates of the
recoverability of amounts due could be reduced by a material
amount.
Inventories
Inventories
are stated at the lower of cost or market. Cost is determined on the first-in,
first-out (“FIFO”)
method.
Recent
Accounting Pronouncements and Developments
References
to the “FASB”, “SFAS” and “SAB” herein refer to the “Financial Accounting
Standards Board”, “Statement of Financial Accounting Standards”, and the “SEC
Staff Accounting Bulletin”, respectively.
In
December 2007, the FASB issued FASB Statement No. 141 (R), “Business
Combinations” (FAS 141(R)), which establishes accounting principles and
disclosure requirements for all transactions in which a company obtains control
over another business. Statement 141 (R) applies prospectively to business
combinations for which the acquisition date is on or after the beginning of
the
first annual reporting period beginning on or after December 15, 2008. Earlier
adoption is prohibited.
In
December 2007, the FASB issued SFAS No. 160, “Non-controlling Interests in
Consolidated Financial Statements, an amendment of ARB No. 51”. SFAS No. 160
establishes accounting and reporting standards that require that the ownership
interests in subsidiaries held by parties other than the parent be clearly
identified, labeled, and presented in the consolidated statement of financial
position within equity, but separate from the parent’s equity; the amount of
consolidated net income attributable to the parent and to the non-controlling
interest be clearly identified and presented on the face of the consolidated
statement of income; and changes in a parent’s ownership interest while the
parent retains its controlling financial interest in its subsidiary be accounted
for consistently. SFAS No. 160 also requires that any retained non-controlling
equity investment in the former subsidiary be initially measured at fair value
when a subsidiary is deconsolidated. SFAS No. 160 also sets forth the disclosure
requirements to identify and distinguish between the interests of the parent
and
the interests of the non-controlling owners. SFAS No. 160 applies to all
entities that prepare consolidated financial statements, except not-for-profit
organizations, but will affect only those entities that have an outstanding
non-controlling interest in one or more subsidiaries or that deconsolidate
a
subsidiary. SFAS No. 160 is effective for fiscal years, and interim periods
within those fiscal years, beginning on or after December 15, 2008. Earlier
adoption is prohibited. SFAS No. 160 must be applied prospectively as of the
beginning of the fiscal year in which it is initially applied, except for the
presentation and disclosure requirements. The presentation and disclosure
requirements are applied retrospectively for all periods presented.
In
March
2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments
and Hedging Activities*an amendment of FASB Statement No. 133” (SFAS 161). This
Statement requires enhanced disclosures about an entity’s derivative and hedging
activities, including (a) how and why an entity uses derivative instruments,
(b)
how derivative instruments and related hedged items are accounted for under
SFAS
No. 133, “Accounting for Derivative Instruments and Hedging Activities” (SFAS
133), and its related interpretations, and (c) how derivative instruments and
related hedged items affect an entity’s financial position, financial
performance, and cash flows. SFAS 161 is effective for financial statements
issued for fiscal years and interim periods beginning after November 15, 2008.
We
do not
believe that the adoption of the above recent pronouncements will have a
material effect on our consolidated results of operations, financial position,
or cash flows.
Off-Balance
Sheet Arrangements
Financial
instruments that potentially subject the Company to off-balance sheet risk
consist of factored accounts receivable. The Company sells certain of its trade
accounts receivable to a factor and is contingently liable to the factor for
merchandise disputes and other customer claims.
As
of
March 31, 2008, the factor holds $1.58 million of accounts receivable purchased
from us on a without recourse basis and has made advances to us of $1.250,000
against those receivables, resulting in a net balance amount Due from Factor
of
$ 225,827. The Company has accounted for the sale of receivables to the factor
in accordance with SFAS No.140, “Accounting for the Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities.”
RISK
FACTORS
YOU
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AND ALL OTHER INFORMATION
CONTAINED IN THIS DESCRIPTION BEFORE PURCHASING SHARES OF OUR COMMON STOCK
OR
OTHER SECURITIES. INVESTING IN BLUE HOLDINGS’
COMMON
STOCK INVOLVES A HIGH DEGREE OF RISK. THE RISKS AND UNCERTAINTIES DESCRIBED
BELOW ARE NOT THE ONLY ONES FACING US. ADDITIONAL RISKS AND UNCERTAINTIES THAT
WE ARE NOT AWARE OF, OR THAT WE CURRENTLY DEEM IMMATERIAL, ALSO MAY BECOME
IMPORTANT FACTORS THAT AFFECT US. IF ANY OF THE FOLLOWING EVENTS OR OUTCOMES
ACTUALLY OCCURS, OUR BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION WOULD
LIKELY SUFFER. AS A RESULT, THE TRADING PRICE OF OUR COMMON STOCK COULD DECLINE,
AND YOU MAY LOSE ALL OR PART OF THE MONEY YOU PAID TO PURCHASE OUR COMMON
STOCK.
Risks
Related to Our Business
We
may require additional capital in the future.
We
may
not be able to fund our future growth or react to competitive pressures if
we
lack sufficient funds. In
the
future, we may need to raise additional funds through equity or debt financings
or collaborative relationships, including in the event that we lose our
relationship with our factor. This additional funding may not be available
or,
if available, it may not be available on commercially reasonable terms. In
addition, any additional funding may result in significant dilution to existing
stockholders. If adequate funds are not available on commercially acceptable
terms, we may be required to curtail our operations or obtain funds through
collaborative partners that may require us to release material rights to our
products.
We
may be unable to continue as a going concern if we do not successfully raise
additional capital or if our sales decrease substantially.
If
we are
unable to successfully raise the capital we need, or experience significant
reductions in sales, we may need to reduce the scope of our business to fully
satisfy our future short-term liquidity requirements. If we cannot raise
additional capital or reduce the scope of our business, we may be otherwise
unable to achieve our goals or continue our operations. During
the three months ended March 31, 2008, we had a net loss of $4,555,545 and
utilized cash of $1,578,494 in operating activities, and had a stockholders’
deficiency of $5,548,601 at March 31, 2008. These factors raise substantial
doubt about our ability to continue as a going concern. In addition,
our auditors
have included in their report on our financial statements for the year ending
December 31, 2007 an explanatory paragraph expressing substantial doubt about
our ability to continue as a going concern.
We
have a limited operating history, making it difficult to evaluate whether we
will operate profitably.
Antik
and
Taverniti,
our
wholly-owned subsidiaries, were formed in September 2004 to design, develop,
manufacture, market, distribute and sell high end fashion jeans, apparel and
accessories. As a result, we do not have a meaningful historical record of
sales
and revenues nor an established business track record. While our management
believes that we have an opportunity to be successful in the high end fashion
jean market, there can be no assurance that we will be successful in
accomplishing our business initiatives, or that we will achieve any significant
level of revenues, or continue to recognize net income, from the sale of our
products.
Unanticipated
problems, expenses and delays are frequently encountered in increasing
production and sales and developing new products, especially in the current
stage of our business. Our ability to continue to successfully develop, produce
and sell our products and to generate significant operating revenues will depend
on our ability to, among other matters:
· |
successfully
market, distribute and sell our products or enter into agreements
with
third parties to perform these functions on our behalf;
and
|
· |
obtain
the financing required to implement our business
plan.
|
Given
our
limited operating history, our license agreements with Yanuk Jeans,
LLC,
our acquisition of Taverniti, and our lack of long-term sales history and other
sources of revenue, there can be no assurance that we will be able to achieve
any of our goals and develop a sufficiently large customer base to be
profitable.
Failure
to manage our growth and expansion could impair our business.
Management
believes that we are poised for reasonable
growth by diversifying our sales to a higher proportion of department store
business and by maintaining focus on our core brands. However, no assurance
can
be given that we will be successful in maintaining or increasing our sales
in
the future. Any future growth in sales will require additional working capital
and may place a significant strain on our management, management information
systems, inventory management, sourcing capability, distribution facilities
and
receivables management. Any disruption in our order processing, sourcing or
distribution systems could cause orders to be shipped late, and under industry
practices, retailers generally can cancel orders or refuse to accept goods
due
to late shipment. Such cancellations and returns would result in a reduction
in
revenue, increased administrative and shipping costs and a further burden on
our
distribution facilities.
Additionally,
we intend from time to time to acquire and/or license other businesses and
brands, as applicable, as we deem appropriate. If we are unable to properly
integrate any business or brands we acquire and/or license, this could adversely
affect our results of operation and financial condition.
The
loss of Paul Guez, Glenn S. Palmer or our lead designers would have an adverse
effect on our future development and could significantly impair our ability
to
achieve our business objectives.
Our
success is largely dependent upon the expertise and knowledge of our Chairman,
Paul Guez, our
Chief
Executive Officer and President, Glenn S. Palmer, and our lead designers, and
our ability to continue to hire and retain other key personnel. The loss of
Mr.
Guez, Mr. Palmer or any of our other key personnel, could have a material
adverse effect on our business, development, financial condition, and operating
results. We do not maintain “key person” life insurance on any of our management
or key personnel, including Messrs. Guez and Palmer.
We
currently own or license, and operate, a limited number of principal brands.
If
we are unsuccessful in marketing and distributing those brands or in executing
our other strategies, our results of operations and financial condition will
be
adversely affected.
While
our
goal is to employ a multi-brand strategy that will ultimately diversify the
fashion and other risks associated with reliance on a limited product line,
we
currently operate, directly and through our wholly-owned subsidiaries Antik
and
Taverniti, a limited number of principal brands, most of which are being
operated pursuant to very recent license or acquisition agreements. If we are
unable to successfully market and distribute our branded products, or if the
recent popularity of premium denim brands decreases, or if we are unable to
execute on our multi-brand strategy to acquire and/or license additional
companies and/or brands, as applicable, identified by our management from time
to time, our results of operations and financial condition will be adversely
affected.
Our
operating results may fluctuate significantly.
Management
expects that we will experience substantial variations in our net sales and
operating results from quarter to quarter. We believe that the factors which
influence this variability of quarterly results include:
· |
the
timing of our introduction of new product
lines;
|
· |
the
level of consumer acceptance of each new product
line;
|
· |
general
economic and industry conditions that affect consumer spending and
retailer purchasing;
|
· |
the
availability of manufacturing
capacity;
|
· |
the
seasonality of the markets in which we
participate;
|
· |
the
timing of trade shows;
|
· |
the
product mix of customer orders;
|
· |
the
timing of the placement or cancellation of customer
orders;
|
· |
quotas
and other regulatory matters;
|
· |
the
occurrence of charge backs in excess of
reserves;
|
· |
the
timing of expenditures in anticipation of increased sales and actions
of
competitors; and
|
· |
the
value of the dollar in relation to other
currencies.
|
As
a
result of fluctuations in our revenue and operating expenses that may occur,
management believes that period-to-period comparisons of our results of
operations are not a good indication of our future performance. It is possible
that in some future quarter or quarters, our operating results will be below
the
expectations of securities analysts or investors. In that case, our common
stock
price could fluctuate significantly or decline.
The
loss of business from any significant customer would affect our results of
operations.
We
have
one customer who accounted for approximately 48%
of
our total receivables at March 31, 2008 and 40% of our sales for the quarter
ended March 31, 2008. A decrease in business from or loss of any significant
customer would have a material adverse effect on our results of operations.
Additionally, certain retailers, including some of our customers, have
experienced in the past, and may experience in the future, financial
difficulties which increase the risk of extending credit to such retailers
and
the risk that financial failure will eliminate a customer entirely. These
retailers have attempted to improve their own operating efficiencies by
concentrating their purchasing power among a narrowing group of vendors. There
can be no assurance that we will remain a preferred vendor for our existing
customers. Further, there can be no assurance that our factor will approve
the
extension of credit to certain retail customers in the future. If a customer’s
credit is not approved by the factor, we could assume the collection risk on
sales to the customer itself, require that the customer provide a letter of
credit, or choose not to make sales to the customer.
Our
business is subject to risks associated with importing
products.
A
portion
of our import operations are subject to tariffs imposed on imported products
and
quotas imposed by trade agreements. In addition, the countries in which our
products are imported may from time to time impose additional new duties,
tariffs or other restrictions on their respective imports or adversely modify
existing restrictions. Adverse changes in these import costs and restrictions,
or our suppliers’
failure
to comply with customs or similar laws, could harm our business. We cannot
assure that future trade agreements will not provide our competitors with an
advantage over us, or increase our costs, either of which could have an adverse
effect on our business and financial condition.
Our
operations are also subject to the effects of international trade agreements
and
regulations such as the North American Free Trade Agreement, and the activities
and regulations of the World Trade Organization. Generally, these trade
agreements benefit our business by reducing or eliminating the duties assessed
on products or other materials manufactured in a particular country. However,
trade agreements can also impose requirements that adversely affect our
business, such as limiting the countries from which we can purchase raw
materials and setting duties or restrictions on products that may be imported
into the United States from a particular country.
Our
ability to import raw materials in a timely and cost-effective manner may also
be affected by problems at ports or issues that otherwise affect transportation
and warehousing providers, such as labor disputes. These problems could require
us to locate alternative ports or warehousing providers to avoid disruption
to
our customers. These alternatives may not be available on short notice or could
result in higher transit costs, which could have an adverse impact on our
business and financial condition.
Our
dependence on independent manufacturers and suppliers of raw materials reduces
our ability to control the manufacturing process, which could harm our sales,
reputation and overall profitability.
We
depend
on independent contract manufacturers and suppliers of raw materials to secure
a
sufficient supply of raw materials and maintain sufficient manufacturing and
shipping capacity in an environment characterized by declining prices, labor
shortages, continuing cost pressure and increased demands for product innovation
and speed-to-market. This dependence could subject us to difficulty in obtaining
timely delivery of products of acceptable quality. In addition, a
contractor’s
failure to ship products to us in a timely manner or to meet the required
quality standards could cause us to miss the delivery date requirements of
our
customers. The failure to make timely deliveries may cause our customers to
cancel orders, refuse to accept deliveries, impose non-compliance charges
through invoice deductions or other charge-backs, demand reduced prices or
reduce future orders, any of which could harm our sales, reputation and overall
profitability.
We
do not
have long-term contracts with any of our independent contractors and any of
these contractors may unilaterally terminate their relationship with us at
any
time. While management believes that there exists an adequate supply of
contractors to provide products and services to us, to the extent we are not
able to secure or maintain relationships with independent contractors that
are
able to fulfill our requirements, our business would be harmed.
We
have
initiated standards for our suppliers, and monitor our independent contractors’
compliance with applicable labor laws, but we do not control our contractors
or
their labor practices. The violation of federal, state or foreign labor laws
by
one of our contractors could result in us being subject to fines and our goods
that are manufactured in violation of such laws being seized or their sale
in
interstate commerce being prohibited. To date, we have not been subject to
any
sanctions that, individually or in the aggregate, have had a material adverse
effect on our business, and we are not aware of any facts on which any such
sanctions could be based. There can be no assurance, however, that in the future
we will not be subject to sanctions as a result of violations of applicable
labor laws by our contractors, or that such sanctions will not have a material
adverse effect on our business and results of operations.
We
may not be able to adequately protect our intellectual property
rights.
The
loss
of or inability to enforce our trademarks or any of our other proprietary or
licensed designs, patents, know-how and trade secrets could adversely affect
our
business. If any third party copies or otherwise gains access to our trademarks
or other proprietary rights, or develops similar products independently, it
may
be costly to enforce our rights and we would not be able to compete as
effectively. Additionally, the laws of foreign countries may provide inadequate
protection of intellectual property rights, making it difficult to enforce
such
rights in those countries.
We
may
need to bring legal claims to enforce or protect our intellectual property
rights. Any litigation, whether successful or unsuccessful, could result in
substantial costs and diversions of resources. In addition, notwithstanding
the
rights we have secured in our intellectual property, third parties may bring
claims against us alleging that we have infringed on their intellectual property
rights or that our intellectual property rights are not valid. Any claims
against us, with or without merit, could be time consuming and costly to defend
or litigate and therefore could have an adverse affect on our
business.
Our
business is growing more international and can be disrupted by factors beyond
our control.
We
have
been reducing our reliance on domestic contractors and expanding our use of
offshore manufacturers as a cost-effective means to produce our products. During
the quarter
ended March 31, 2008, we sourced a significant majority of our finished products
from suppliers located outside the United States and we also continued to
increase our purchase of fabrics outside the United States. In addition, we
have
been increasing our international sales of product primarily through our
licensees and distributors.
As
a
result of our increasing international operations, we face the possibility
of
greater losses from a number of risks inherent in doing business in
international markets and from a number of factors which are beyond our control.
Such factors that could harm our results of operations and financial condition
include, among other things:
· |
Political
instability or acts of terrorism, which disrupt trade with the countries
in which our contractors, suppliers or customers are
located;
|
· |
Local
business practices that do not conform to legal or ethical
guidelines;
|
· |
Adoption
of additional or revised quotas, restrictions or regulations relating
to
imports or exports;
|
· |
Additional
or increased customs duties, tariffs, taxes and other charges on
imports;
|
· |
Significant
fluctuations in the value of the dollar against foreign
currencies;
|
· |
Increased
difficulty in protecting our intellectual property rights in foreign
jurisdictions;
|
· |
Social,
legal or economic instability in the foreign markets in which we
do
business, which could influence our ability to sell our products
in these
international markets; and
|
· |
Restrictions
on the transfer of funds between the United States and foreign
jurisdictions.
|
Risks
Related to Our Industry
Our
sales are heavily influenced by general economic cycles.
Apparel
is a cyclical industry that is heavily dependent upon the overall level of
consumer spending. Purchases of apparel and related goods tend to be highly
correlated with cycles in the disposable income of our consumers. Our customers
anticipate and respond to adverse changes in economic conditions and uncertainty
by reducing inventories and canceling orders. As a result, any substantial
deterioration in general economic conditions, increases in interest rates,
acts
of war, terrorist or political events that diminish consumer spending and
confidence in any of the regions in which we compete, could reduce our sales
and
adversely affect our business and financial condition.
Our
business is highly competitive and depends on consumer spending
patterns.
The
apparel industry is highly competitive. We face a variety of competitive
challenges including:
· |
anticipating
and quickly responding to changing consumer
demands;
|
· |
developing
innovative, high-quality products in sizes and styles that appeal
to
consumers;
|
· |
competitively
pricing our products and achieving customer perception of value;
and
|
· |
the
need to provide strong and effective marketing
support.
|
We
must successfully gauge fashion trends and changing consumer preferences to
succeed.
Our
success is largely dependent upon our ability to gauge the fashion tastes of
our
customers and to provide merchandise that satisfies retail and customer demand
in a timely manner. The apparel business fluctuates according to changes in
consumer preferences dictated in part by fashion and season. To the extent
we
misjudge the market for our merchandise,
our
sales may be adversely affected. Our ability to anticipate and effectively
respond to changing fashion trends depends in part on our ability to attract
and
retain key personnel in our design, merchandising and marketing staff.
Competition for these personnel is intense, and we cannot be sure that we will
be able to attract and retain a sufficient number of qualified personnel in
future periods.
Our
business may be subject to seasonal trends resulting in fluctuations in our
quarterly results, which could cause uncertainty about our future performance
and harm our results of operations.
In
the
experience of our management, operating results in the high end fashion denim
industry have been subject to seasonal trends when measured on a quarterly
basis. These
trends are dependent on numerous factors, including:
· |
the
markets in which we operate;
|
· |
economic
conditions; and
|
· |
numerous
other factors beyond our control.
|
Other
Risks Related to our
Stock
Our
sale of securities in any equity or debt financing could result in dilution
to
our stockholders and have a material adverse effect on our
earnings.
Any
sale
of shares by us in future private placement or other offerings could result
in
dilution to our existing stockholders
as a direct result of our issuance of additional shares of our capital stock.
In
addition, our business strategy may include expansion through internal growth,
by acquiring complementary businesses, by acquiring or licensing additional
brands, or by establishing strategic relationships with targeted customers
and
suppliers. In order to do so, or to fund 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 results of operations.
Insiders
own a significant portion of our common stock, which could limit our
stockholders’ ability to influence the outcome of key
transactions.
As
of
October
2, 2008, our executive officers and directors beneficially owned approximately
69.9% of the outstanding shares of our common stock. As of October 2, 2008,
our
chairman, Paul Guez, and his affiliates collectively owned approximately 68.2%
of the outstanding shares of our common stock. We also issued 1,000,000 Series
A
convertible preferred shares to Mr. Guez in satisfaction of $2,556,682 of
advances to us by Mr. Guez. The Series A preferred shares are convertible into
4,623,589 shares of common stock and vote with our common stock on an
as-converted basis on all matters presented to our stockholders. Accordingly,
our executive officers and key personnel have the ability to affect the outcome
of, or exert considerable 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 our company or otherwise
discouraging or preventing a potential acquirer from attempting to obtain
control of our company. 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.
Our
stock price has been volatile.
Our
common stock is quoted on the Pink
Sheets electronic over-the-counter market maintained by the Pink OTC Markets,
Inc., and there can be substantial volatility in the market price of our common
stock. The market price of our common stock has been, and is likely to continue
to be, subject to significant fluctuations due to a variety of factors,
including quarterly variations in operating results, operating results which
vary from the expectations of securities analysts and investors, changes in
financial estimates, changes in market valuations of competitors, announcements
by us or our competitors of a material nature, loss of one or more customers,
additions or departures of key personnel, future sales of common stock and
stock
market price and volume fluctuations. In addition, general political and
economic conditions such as a recession, or interest rate or currency rate
fluctuations may adversely affect the market price of our common
stock.
In
addition, the stock market in general has experienced extreme price and volume
fluctuations that have affected the market price of our common stock. Often,
price fluctuations are unrelated to operating performance of the specific
companies whose stock is affected. In the past, following periods of volatility
in the market price of a company’s stock, securities class action litigation has
occurred against the issuing company. If we were subject to this type of
litigation in the future, we could incur substantial costs and a diversion
of
our management’s attention and resources, each of which could have a material
adverse effect on our revenue and earnings. Any adverse determination in this
type of litigation could also subject us to significant
liabilities.
Absence
of dividends could reduce our attractiveness to investors.
Some
investors favor companies that pay dividends, particularly in general downturns
in the stock market. We have not declared or paid any cash dividends on our
common stock. We currently intend to retain any future earnings for funding
growth, and we do not currently anticipate paying cash dividends on our common
stock in the foreseeable future. Because we may not pay dividends, your return
on an investment in our common stock likely depends on your selling such stock
at a profit.
Our
Board is authorized to issue preferred stock, which may make it difficult for
any party to acquire us and adversely affect the price of our common
stock.
Under
our
articles of incorporation, our Board of Directors has the power to authorize
the
issuance of up to 5,000,000 shares of preferred stock and to determine the
price, rights, preferences, privileges and restrictions, including voting
rights, of those shares without further vote or action by the stockholders.
Accordingly, our Board of Directors may issue preferred stock with terms that
could have preference over and adversely affect the rights of holders of our
common stock.
On
November 28, 2007 we issued 1,000,000 shares of New Series A Preferred to Mr.
Guez in consideration for (i) the cancellation of the $2,556,682 of advances
made to us by Mr. Guez and (ii) an additional cash investment of $125,000.
The
shares of New Series A Preferred are convertible into 4,623,589 shares of our
common stock based on a conversion formula equal to the price per share
($2.681682) divided by the conversion price ($0.58) multiplied by the total
number of shares of New Series A Preferred issued, subject to adjustment in
accordance with the provisions of the certificate of designations for the New
Series A Preferred. The New Series A preferred shares accrue cumulative
dividends at the annual rate of 6% of the purchase price in preference to the
common stock. Upon our liquidation or dissolution the New Series A preferred
shares are entitled to receive, prior to any distribution to the holders of
our
common stock, 100% of the purchase price plus all accrued but unpaid
dividends.
The
issuance of any preferred stock may:
· |
make
it difficult for any party to acquire us, even though an acquisition
might
be beneficial to our stockholders;
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· |
delay,
defer or prevent a change in control of our
company;
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· |
discourage
bids for the common stock at a premium over the market price of our
common
stock;
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· |
adversely
affect the voting and other rights of the holders of our common stock;
and
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· |
discourage
acquisition proposals or tender offers for our
shares.
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The
provisions allowing the issuance of preferred stock could limit the price that
investors might be willing to pay in the future for shares of our common
stock.
Our
common stock is subject to the SEC’s penny stock rules. Therefore,
broker-dealers may experience difficulty in completing customer transactions
and
trading activity in our securities may be adversely affected.
If
at any
time a company has net tangible assets of $2,000,000
or less and the common stock has a market price per share of less than $5.00,
transactions in the common stock may be subject to the “penny stock” rules
promulgated under the Exchange Act. Under these rules, broker-dealers who
recommend such securities to persons other than institutional accredited
investors must:
· |
make
a special written suitability determination for the
purchaser;
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· |
receive
the purchaser’s written agreement to a transaction prior to
sale;
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· |
provide
the purchaser with risk disclosure documents which identify certain
risks
associated with investing in “penny stocks” and which describe the market
for these “penny stocks” as well as a purchaser’s legal remedies;
and
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· |
obtain
a signed and dated acknowledgment from the purchaser demonstrating
that
the purchaser has actually received the required risk disclosure
document
before a transaction in a “penny stock” can be
completed.
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As
our
common stock is subject to these rules, broker-dealers may find it difficult
to
effectuate customer transactions and trading activity in our securities may
be
adversely affected. As a result, the market price of our securities may be
depressed, and stockholders may find it more difficult to sell their shares
of
our common stock.
ITEM
3. QUANTATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not
applicable.
ITEM
4. CONTROLS
AND PROCEDURES
Controls
and Procedures
We
maintain disclosure controls and procedures that are designed to ensure that
information required to be disclosed is recorded, processed, summarized and
reported within the time periods specified by the SEC and that such information
is accumulated and communicated to management, including our chief executive
officer (CEO) and chief financial officer (CFO), as appropriate, to allow for
timely decisions regarding required disclosure. In designing and evaluating
our
disclosure controls and procedures, we recognize that any controls and
procedures, no matter how well designed and operated, can provide only
reasonable assurance of achieving the desired control objectives, and management
is required to apply its judgment in evaluating the cost-benefit relationship
of
possible controls and procedures.
Management,
with participation by our CEO and CFO, has designed our disclosure controls
and
procedures to provide reasonable assurance of achieving the desired objectives.
As required by SEC Rule 13a-15(b), in connection with filing this report on
Form 10-Q, management conducted an evaluation, with the participation of
our CEO and CFO, of the effectiveness of the design and operation of our
disclosure controls and procedures, as such term is defined under
Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as of
March 31, 2008, the end of the period covered by this report.
Our
management, with the participation of our CEO and CFO, evaluated the
effectiveness of the design and operation of our disclosure controls and
procedures and concluded that, because of the material weaknesses in our
internal control over financial reporting discussed below, our disclosure
controls and procedures were not effective as of March 31, 2008.
The
Public Company Accounting Oversight Board’s Auditing Standard No. 2 defines
a material weakness as a significant deficiency, or a combination of significant
deficiencies, that results in there being a more than remote likelihood that
a
material misstatement of the annual or interim financial statements will not
be
prevented or detected. Management identified the following material weaknesses
in internal control over financial reporting in connection with this
assessment:
Ineffective
Oversight of Financial Reporting.
We have
not provided an appropriate level of oversight of the financial reporting
process and have not appropriately monitored our system of internal control.
Our
monitoring of management’s assessment of internal control over financial
reporting did not result in appropriate actions taken by management to remedy
the deficiencies in the process to assess internal control over financial
reporting.
Ineffective
Financial Statement Closing and Reporting Processes and
Procedures.
Our
management has not established with appropriate rigor the accounting policies,
procedures, and documentation necessary to close our reporting periods and
report our results of operations in an efficient and timely manner. In
particular, our management has not established adequate policies, processes
and
procedures to maintain and support certain balance sheet accounts, including
related party accounts, or to reconcile detail ledgers to the general
ledger.
Our
management also identified a significant deficiency in our information
technology infrastructure relating to the lack of appropriate general and
application controls and documentation, generally, and the integration between
our internally developed software and our general ledger,
specifically.
Lack
of Appropriate Accounting Policies and Procedures.
Our
management has not established with appropriate rigor the accounting policies,
procedures, and documentation of significant judgments and estimates made by
management in the preparation of the financial statements, including accounting
policies related to revenue recognition and accounting for stock options and
warrants. Our management has also not established with appropriate rigor the
policies and procedures necessary to cause personnel to adhere to previously
established accounting policies, including accounting policies for setting
allowances or reserves against accounts receivable and inventory.
Lack
of Appropriate Accounting Personnel.
Our
management has not appropriately assessed the risk to reliable financial
reporting related to the effects of unfilled key financial reporting positions.
With the departure of certain key staff in December 2007, and with the
resignation of our Chief Financial Offer, effective September 10, 2008, our
management has concluded that we will continue to lack the financial expertise
necessary to report our results of operations on a timely basis until such
positions are filled.
Changes
in Internal Control over Financial Reporting
There
has
not been any material change in our internal control over financial reporting
during the three months ended March 31, 2008
that
has materially affected, or is reasonably likely to materially affect our
internal control over financial reporting, except for the remediation changes
discussed below.
We
are
actively remedying the material weaknesses and significant deficiencies
identified above. Management is actively recruiting to fill the open accounting
positions, and is evaluating staffing of the accounting department. We have
taken immediate steps to seek a Chief Financial Officer candidate and are in
the
process of interviewing several individuals. In the meantime, we have engaged
a
consultant to act as our interim chief accounting officer to assist with our
financial reporting and internal accounting functions. Additionally, existing
accounting policies and procedures will be enhanced, and policies will be
developed to address identified gaps.
PART
II
ITEM
1. LEGAL
PROCEEDINGS
On,
August 4, 2008, we were served
with a complaint filed in the Superior Court of the State of California County
of Los Angeles, District Court, by LIT Commerce Distribution Center, LLC, the
owner of our former premises, alleging that we breached a lease agreement
regarding our former premises and seeking damages in an amount not less than
$1.25 million plus interest and attorneys’ fees. We intend to vigorously defend
the lawsuit. We also recently learned of a $205,782.24 judgment LIT Commerce
Distribution Center, LLC obtained against us without our knowledge regarding
the
former premises. Our legal counsel in this matter will seek to overturn the
judgment in the immediate future. While management believes that we have
successful counterclaims against the plaintiff, it is unable at this time to
express an opinion whether it is likely that the plaintiff will be able to
prevail against us on its claims.
ITEM
4. SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
On
March
5, 2008, a stockholder who owned of record 16,028,757 shares of our common
stock
and 1,000,000 shares of our Series A Convertible Preferred Stock (which are
convertible into 4,623,589 shares of our common stock), representing
approximately 61.1% of the then outstanding shares of our common stock, all
of
the outstanding shares of our Series A Convertible Preferred Stock, and 66.9%
of
the then outstanding shares of our common stock and Series A Convertible
Preferred Stock, voting together as a single class on an as-converted basis,
approved and ratified by written consent our issuance of up to an aggregate
of
$3,129,600 of thirty-month senior secured convertible notes, and five-year
warrants to purchase up to an aggregate of 1,462,500 shares of our common
stock.
On
March
21, 2008, a stockholder who owned of record 16,028,757 shares of our common
stock and 1,000,000 shares of our Series A Convertible Preferred Stock (which
are convertible into 4,623,589 shares of our common stock), representing
approximately 62.1% of the then outstanding shares of our common stock, all
of
the outstanding shares of our Series A Convertible Preferred Stock, and 66.9%
of
the then outstanding shares of our common stock and Series A Convertible
Preferred Stock, voting together as a single class on an as-converted basis,
approved by written consent a reverse split of our currently outstanding common
stock at a ratio ranging from 1-for-1.5 to 1-for-2.5, to be determined at the
discretion of our board of directors, with special treatment for certain of
our
stockholders to preserve round lot stockholders and the rounding up for
fractional interests.
ITEM
6. EXHIBITS
See
attached Exhibit Index.
SIGNATURES
In
accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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BLUE
HOLDINGS, INC. |
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Date: October
3, 2008 |
By: |
/s/ David
Lasell |
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David
Lasell |
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Interim
Chief Accounting Officer |
Exhibit
Index
Exhibit
Number
|
|
Description
of Exhibit
|
|
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10.1
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|
Termination
and Release Agreement dated February 6, 2008 by and between Antik
Denim,
LLC and North Star International, Inc. Incorporated by reference
to
Exhibit 10.63 to the Registrant’s Annual Report on Form 10-K (File #
000-33297), filed with the Securities and Exchange Commission on
April 15,
2008.
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10.2
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|
Securities
Purchase Agreement dated March 5, 2008, by and between the Registrant
and
the purchasers signatory thereto. Incorporated by reference to Exhibit
10.1 to the Registrant’s Current Report on Form 8-K (File # 000-33297),
filed with the Securities and Exchange Commission on March 7,
2008.
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|
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10.3
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|
Form
of 8% Secured Convertible Note. Incorporated by reference to Exhibit
10.2
to the Registrant’s Current Report on Form 8-K (File # 000-33297), filed
with the Securities and Exchange Commission on March 7,
2008.
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10.4
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|
Form
of Warrant. Incorporated by reference to Exhibit 10.3 to the Registrant’s
Current Report on Form 8-K (File # 000-33297), filed with the Securities
and Exchange Commission on March 7, 2008.
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10.5
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|
Form
of Lock-Up Agreement. Incorporated by reference to Exhibit 10.4 to
the
Registrant’s Current Report on Form 8-K (File # 000-33297), filed with the
Securities and Exchange Commission on March 7, 2008.
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10.6
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Security
Agreement dated March 5, 2008, by and between the Registrant, Antik
Denim,
LLC, Taverniti So Jeans, LLC, Gemini Master Fund, Ltd. and Gemini
Strategies, LLC. Incorporated by reference to Exhibit 10.5 to the
Registrant’s Current Report on Form 8-K (File # 000-33297), filed with the
Securities and Exchange Commission on March 7, 2008.
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10.7
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IP
Security Agreement dated March 5, 2008, by and between the Registrant,
Antik Denim, LLC, Taverniti So Jeans, LLC, Gemini Master Fund, Ltd.
and
Gemini Strategies, LLC. Incorporated by reference to Exhibit 10.6
to the
Registrant’s Current Report on Form 8-K (File # 000-33297), filed with the
Securities and Exchange Commission on March 7, 2008.
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10.8
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|
Subsidiary
Guarantee dated March 5, 2008, executed by each of Antik Denim, LLC
and
Taverniti So Jeans, LLC. Incorporated by reference to Exhibit 10.7
to the
Registrant’s Current Report on Form 8-K (File # 000-33297), filed with the
Securities and Exchange Commission on March 7, 2008.
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10.9
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|
Common
Stock Purchase Agreement dated March 5, 2008, by and between the
Registrant and Paul Guez. Incorporated by reference to Exhibit 10.8
to the
Registrant’s Current Report on Form 8-K (File # 000-33297), filed with the
Securities and Exchange Commission on March 7, 2008.
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31.1
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|
Certification
of Principal Executive Officer pursuant to Securities Exchange Act
Rules
13a-14(a) and 15d-14(a) as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
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31.2
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Certification
of Principal Financial Officer pursuant to Securities Exchange Act
Rules
13a-14(a) and 15d-14(a) as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
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32.1
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Certification
of Principal Executive Officer pursuant to 18 U.S.C. Section 1350,
as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
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32.2
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Certification
of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
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