Item
1. Business
Overview
We
began operations in 2016 as a subscription-based e-commerce company. We make shopping easy, convenient, and accessible for parents by
delivering, in a box, fashionable and personalized outfits for kids. kidpik provides kids clothing subscription boxes for boys and girls
of varying sizes from toddler to youth that include mix-&-match coordinated outfits that are personalized based on each member’s
style preferences. We focus on providing entire outfits from head-to-toe (including shoes) by designing each seasonal collection in-house
from concept to box.
Our
mission statement is “To change the way parents shop for their kids by delivering outfits that make their kids confident and happy.”
We
take a partially integrated approach allowing us to design, merchandise and procure each seasonal collections with outfit coordination
in mind from the beginning of the process and to deliver what we believe is a beneficial customer experience in terms of style, quality,
value, curation, and outfit coordination.
We
save parents time by delivering personalized, mix-&-match outfits curated by our team of seasoned stylists, that are ready
to wear right out-of-the-box. Members shop from the comfort of their home and have a week to decide what to keep, return or exchange.
We
acquire most of our new members primarily though social media marketing where we continuously explore new ads, new audiences, new channels,
and by expanding into new product lines such as adding boys clothing and toddler sizes. We attribute the positive engagement of our members
to having solved the following two pain points for parents and kids:
Difficulty
of selecting fashionable outfits that match: Parents do not always have the expertise to put together stylized, fashionable looks.
Avoiding
challenging in-store shopping experiences: Shopping for children’s clothing in stores and online can be challenging for
parents. It can be time consuming, difficult, and require going to multiple stores and online ecommerce sites, which may result in additional
challenges, including, but not limited to, parents being required to bring their children with them to go shopping.
Business
Development
kidpik
began operations in 2016, focused on personalized girls’ fashions sizes 4-14, curated in a box. Our aim was to make it easy for
parents and save time by doing the shopping and styling for them, delivering personalized coordinated outfits (which we call ‘piks’),
allowing them to try-on the clothing, shoes, and accessories in the comfort of their home, and within the context of their kids’
closets. We built our subscription ‘box’ which currently contains seven or eight items — five or six pieces of clothing,
a pair of shoes, and an accessory — to create mix-&-match personalized outfits. Our subscription boxes are available
on kidpik.com.
After
launching with our girls’ subscription box for sizes 4-14 in 2016, we have continued to expand our product offering and marketing
channels. We expanded into boys’ clothes, added larger sizes up to 16 for apparel and 6 youth for shoes, added toddler sizes down
to 2T and 3T for apparel and 7 and 8 toddler shoes, launched shop.kidpik.com, where we sell our seasonal collection individually including
pre-styled outfits, pre-styled boxes and gift cards, and expanded to sell on Amazon.com as Fulfilled by Amazon and Fulfilled by
Merchant for pre-packs and individual items and Walmart as Fulfilled by Merchant.
We
have also added new features and products to our core subscription service including add-on items, kidpik koins (our loyalty program),
and on-demand boxes.
Initial
Public Offering
In
November 2021, the Company completed an initial public offering (the “IPO”), in which the Company issued and sold
2,117,647 shares of its authorized common stock for $8.50 per share for net proceeds of $16.1 million, after deducting underwriting discounts
and commissions, and offering costs.
Products
We
offer all apparel categories including tops, bottoms, cardigans, jackets, dresses, and swimwear, in knit and woven fabrications. Shoes
are available from size 7 toddler to size 6 youth, including sneakers, boots, sandals, and dress shoes. Accessories include sunglasses,
jewelry, bags, socks, hats, and hair goods, among other items.
We
create coordinating and matching outfits from head-to-toe, providing parents a convenient, time saving, and stress-free shopping experience,
while offering kids the excitement of unboxing and the opportunity to discover their own unique style.
Our
personalized service and fashion boxes are primarily marketed towards parents and grandparents for their children and grandchildren.
Our in-house team designs, merchandises, and procures all of our apparel, shoes, and accessories to our specifications.
As
of the date of this Report, we provide e-commerce services only throughout the contiguous United States and Army Post Offices (APOs)
and Fleet Post Offices (FPOs).
Our
Strengths
We
believe that we have five core strengths that helps kidpik thrive in the still emerging subscription-based e-commerce industry and
which give us a competitive advantage:
● |
kidpik
CEO, Ezra Dabah, and his senior team led The Children’s Place retail stores for 17 years from 1990 to 2007 |
|
○ |
Ezra
Dabah, as CEO of the Children’s Place retail stores, and key members of his current senior team at kidpik, led The Children’s
Place growth from approximately 150 to 1,200 stores and revenue growth from approximately $150 million to over $2 billion. The executive
team collectively have 150+ years of childrenswear experience across design, merchandising, procurement, retail, brand building,
e-commerce, creative and marketing. |
● |
Robust
member and merchandising dataset |
|
○ |
We
believe that the combination of our robust member and merchandising data sets helps us to improve revenue and profit utilizing predictive
proprietary information. This data set provides insights that allows us to refine and improve the personalized shopping experience. |
● |
Highly
adaptable proprietary technological infrastructure and algorithm |
|
○ |
We
believe that the combination of our robust member dataset and refined proprietary technology offers us a highly competitive advantage
in a marketplace with considerable barriers to entry due to the complexity and length of time in building internal internet technology
(IT) systems that can adequately support and scale our subscription growth. |
● |
Deep
expertise in the childrenswear industry leads to a superior subscription business model |
|
○ |
We
believe we have a competitive advantage over our subscription-based e-commerce clothing competitors based on our teams’ extensive
knowledge and experience of the childrenswear market, and of implementing, optimizing, and executing, strong internal processes with
our in-house design, merchandising, and procurement teams. |
● |
Design
and integration model |
|
○ |
Our
integration process allows us to control all style specifications, including stitching detail, findings, hardware, color, sizing
and fit, across all our apparel, shoe, and accessory categories. This ensures fit and color consistency, complete outfit coordination,
quality value equation and takes over the challenging aspects of the shopping experience from our members. |
How
kidpik Works
We
are a “subscription” service with no monthly subscription or styling fees.
New
members take a 3-minute style quiz which provides us information about silhouettes, colors, prints, fits, favorite looks, and other style
preferences their kids like to wear. Members then select a box delivery frequency that works best for them – every 4, 6, or 12
weeks, and enter their shipping and payment information. In conjunction with our proprietary algorithm, our stylists select, three coordinating
outfits personalized to each child’s style preferences. We send this information to our warehouse, where we pick and pack the order,
ensuring that each box is packed consistently and in a manner that is intended to make opening the box an exciting event. The surprise
box of personalized fashion is shipped and delivered to the member door. Members pay no styling, shipping, return or exchange fees, for
their ‘boxes’ and only pay for what they keep.
What’s
in a Box
Most
Kidpik fashion subscription boxes contain eight items —six items of apparel, a pair of shoes and an accessory, which creates mix
& match outfits, from head-to-toe. For our current members we have recently expanded our subscription box offerings, introducing
a twelve -items box option. Members are informed they have 7 days to decide what to keep or return and complete the process by checking
out online. Returns or exchanges of any items are easy and free. They simply put the items into the provided pre-paid bag and drop it
in a USPS mailbox.
Membership
We
define active subscriptions as an individual child in a member’s account who is due to receive future boxes. One member can have
multiple subscriptions.
Business
Strategy
We
seek to capitalize on the advantages of being a digital first subscription-ecommerce fashion brand. We plan to achieve this goal by executing
our business strategy:
1. |
Creating
a strong value equation for consumers of quality and price, our partial integration allows us to capitalize on what we believe is
a significant price sensitive childrenswear market. Focusing on controlling the product and process from concept to box, which allows
us to price competitively while having our products under our own kidpik label reinforces the value of our brand to consumers and
gives us the opportunity to market our brand through other third-party platforms and retail outlets. |
2. |
Delivering
personalized and styled outfits directly to a member’s door provides a seamless and easy experience for our members allowing
us to connect with parents and kids emotionally, driving a stronger brand connection. |
3. |
Investing
in our data science and technology platforms to continuously drive a positive and frictionless member experience to increase lifetime
value. |
We
believe effectively executing our business strategy will allow us to successfully pursue our goals to become one of the top players in
the children’s clothing subscription industry. We believe focusing on personalization of fashion outfits at a value will set us
apart from other children’s clothing subscription players. By delivering a consistent and seamless member experience it allows
us to build trust and continue to expand our product lines into our members households. Below is a discussion of how we plan to capitalize
upon our business strategy.
Members & Marketing Channels
Our
first member was acquired on January 20, 2016, and we shipped our first curated girl’s fashion box on March 18, 2016. We believe
we drove many of our member acquisitions through Facebook and Instagram Ads, Google Ads, email, affiliates, public relations, influencer
marketing and search engine optimization (SEO), along with referrals from current members, word of mouth, and through family, friends,
and communities. Beginning in 2021, we expanded our advertising to include YouTube, Snapchat, TikTok, Pinterest, and digital co-branded
collaborations.
In
the age of digital ads and e-commerce, we believe that social proof (a psychological and social phenomenon wherein people copy the actions
of others in an attempt to undertake behavior in a given situation) is an important factor for buying or signing up for a product and
displaying user generated content (UGC) in our marketing ads has had a role in the increase of member acquisition. We believe that our
commitment to growing new channels, together with public relations, influencer marketing, and brand ambassador programs will help drive
our growth.
We aggressively tests different ad creatives, audiences’ images, and landing pages to find what the most
successful experience is for a given audience. This continuous testing provides us an opportunity to stay on top of the trends and adapt
our strategy as the situation changes.
Add-on
Items
In
2021, we launched add-on items, which allows members to add items to their next box. We remind members of this option before their box
is styled, by sending an email featuring items available to be added. We have found that this increases the average transaction size
and our average profit per box.
Member
Referral Program
We
incentivize active members to refer their family and friends to kidpik by extending a discount to their friends on their first box and
awarding them a dollars-off credit when their friends make a purchase.
During
certain promotional periods, kidpik will reward active members immediately after the friend subscribes to kidpik rather than waiting
to reward them until the referred member makes a purchase, and offer additional incentives and rewards.
Member
Loyalty Program
We
offer the opportunity for members to earn ‘kidpik koins,’ which are part of our loyalty program. Koins are rewarded to members
based on certain actions such as keeping the whole box, referring friends, and can be redeemed for free items in our online kidpik koin
marketplace. Redeemed items are shipped for free in the member’s next box. We launched this program in October 2020, and it has
already been used by thousands of our members.
Brand
Ambassador Program
In
November 2020, we introduced our influencer program, whereby we have pre-selected influencers and have provided free seasonal boxes
to said influencers in exchange for recurring seasonal social media posts about kidpik boxes and our products. Each influencer is
assigned a unique promo code and affiliate link and earns a monetary commission when their followers subscribe to kidpik. In
February of 2022, we have started a program that gives influencers the ability to earn commission on shop purchases of individual items and pre-styled boxes with no subscription required on
shop.kidpik.com.
In
addition to our influencer program, in February of 2022, we launched a consumer-facing brand influencer program, supported by a third-party
platform. Through this program, we inspire everyday consumers to act as influencers and to create content promoting kidpik to be shared
with their friends and followers. Each consumer brand influencer is assigned a unique promo code and referral link and earns either monetary
commission or a credit to their account upon registering a new subscription or completion of a sale.
Blog
In
addition to our subscription and e-commerce websites, we run and manage a brand blog, www.kidpik.com/blog, where we have built a
lifestyle around the kidpik brand through articles, activities, and posts, which helps to establish a brand voice and attract
new members. Consumers and members can discover more about the kidpik brand story, learn fashion and lifestyle tips, and are
treated to virtual events and craft projects designed for our target audience that offer fun for the entire family. Our
blog allows us to host long form content and share information about new launches, digital co-branded collaborations, and brand
events. The blog also hosts a library of articles that is updated to enhance our brand and serve as a host to SEO
keyword searches designed to strategically increase our SEO rankings.
Large
Social Media Community
We
have garnered a substantial number of social media followers across various platforms, particularly Facebook and Instagram. As of March
31, 2023, we had over 533,000 likes on Facebook and 123,000 followers on Instagram (a like and follow may be done by the same person).
A consistent stream of user generated content, also known as UGC, is published to Facebook and Instagram by our members, which is then
republished to our social media accounts, ads, emails, and more which we have found helps build social proof and trust for people to
subscribe with kidpik. This UGC content accounts for some of our best performing brand assets in terms of conversion, engagement and
also generates awareness through our members’ respective channels when they share about their experience with kidpik. We believe
our thoughtful unboxing experience inspires members to capture the moment and share it with us and their friends.
Design
& Integration Model
We
believe we have a competitive advantage over our subscription-based e-commerce clothing competitors based on our teams’ extensive
knowledge and experience of the childrenswear and footwear industries, and of implementing, optimizing, and executing in-house strong
internal processes with our design, merchandising, and procurement teams.
All
of our apparel and shoes are developed by our in-house design team in New York City. Seasonally, our design team develops a sample
line, mostly created in our own sample room in China, allowing for style and trend flexibility, ensuring quality, consistency of
fit, and outfit coordination. Our design, and merchandising teams continuously collaborate to ensure that the customer preferences,
market trends, and product offerings are being met and we are maintaining our core fashion values. Our merchandising team also
analyzes trends and feedback, as well as historical data to identify essential styles, replenishment, and quantities to support the
business needs. Our design, merchandising, and styling teams work to build a collection where each style can be merchandised
together to create beautiful mix-&-match outfits. Our production team works directly with suppliers and factories to produce our
finalized styles, ensuring each style is made to all of our detailed specifications including quality, color, sizing, and fit. We
rely on a limited number of suppliers and factories where we contract to manufacture our products and while we have long-standing
relations with them, we do not have long-term contracts with these parties. For the year ended December 31, 2022, two vendors
accounted for approximately 48% of inventory purchases. For the year ended January 1, 2022, three vendors accounted for
approximately 49% of inventory purchases. Our production team also coordinates and provides specific instruction on all packing and
shipping requirements to ensure efficiencies. Our products are shipped from our manufacturers directly to our distribution center in
California, which handles all our warehousing, fulfillment, packing, outbound shipping, returns, and exchanges.
This
process ensures consistency of style, quality, fit, and color along with complete outfit coordination beginning with style development
to final box coordination. The process also allows us to cater to each of our members’ unique style, color, print, sparkle, fit,
and other preferences as well as lifestyle categories including girly, active, classic, urban, and trendy across boys, girls, and toddlers
since we design and merchandise these preferences.
Our
internal design process allows us to control all style specifications, including color, sizing and fit, across all our apparel, shoe,
and accessory categories. This ensures consistency, complete outfit coordination, and takes over the challenging aspects of the shopping
experience from our members, as everything mixes and matches, from head-to-toe. Inconsistency of sizing and color differentiation is
something we have found can be very frustrating when shopping for kids’ clothes from different brands.
We
contract to manufacture with vendors for the products we sell. As of December 31, 2022, we procured merchandise from more than 28 vendors.
In the event these vendors decide to terminate their relationships with us or cease supplying products, such vendors may be difficult
to replace and/or the products they supply us may be more expensive or of lesser quality. It can take a significant amount of time and
resources to identify, develop and maintain relationships with vendors. The termination of, or material changes to, arrangements with
key vendors, disagreements with key vendors as to payment or other terms, or the failure of a key supplier or vendor to meet its contractual
obligations to us may require us to contract with alternative vendors. If we have to replace key vendors, we may be subject to pricing
or other terms less favorable than those we currently enjoy, and it may be difficult to identify and secure relationships with alternative
vendors that are able to meet our volume requirements and quality or other standards. If we cannot replace or engage vendors who meet
our specifications and standards in a short period of time, we could encounter increased expenses, shortages of items, disruptions, or
delays in customer shipments. If this were to occur, we could experience delays in shipments, cancellations, and a reduction in sales
revenue, any of which could materially adversely affect our business, financial condition and operating results.
Pricing
Strategy
The
childrenswear apparel and footwear market is one of necessity, and therefore it is very price sensitive as kids regularly out-grow their
clothes. Through our integration model, we control the entire process from design to merchandising, procurement and fulfillment, to offer
a balanced value equation of price, quality, and fashion. This allows us to negotiate the costs directly with the suppliers, avoiding
having to pay middlemen markups, enabling us to pass that savings along to our members in this very price sensitive childrenswear marketplace.
Technology
Processes
We
scale and do our best to stay ahead of the competition by putting technical innovation and execution at the heart of our business. Over
the past seven years, we have invested heavily in our proprietary technology and algorithm capabilities and built a robust infrastructure
that we believe is positioned accordingly to meet the thriving clothing subscription industry. Our model collects consumer data through
an interactive quiz that allows us to deliver a unique and personalized experience in every box. As members keep and return items, our
algorithm refines its understanding of individual preferences which improves personalization.
Our
members provide us with dozens of initial data points that include sizes, style preferences, dislikes, and fits, that we use to personalize
and style their boxes. This personalized data is refined over time by member feedback. This data is paired with our in-house algorithmic
software to match members with the best combinations of outfits. The algorithm combines initial data from various sources including the
style quiz, feedback given or received via product actions (i.e., returns), member box reviews, product and box-level data, target climate
and seasonal information, price-related feedback, along with other proprietary information. It uses this data to generate outfit combinations
designed to maximize keep rate results along several spectra including: member satisfaction, profit maximization and overall inventory
optimization.
Most
of our internal systems and development tools are fully custom-built and designed specifically for our unique business model. These systems
allow us extensive flexibility and the ability to quickly and decisively respond to ever-changing business and technological needs. Building
proprietary tools are necessary as the technical complexity of the clothing subscription business currently cannot be managed by off-the-shelf
solutions. We believe that our years of proprietary technology development have only served to widen the gap between us and any potential
competitors who may seek to enter the space.
Warehouse
systems include features such as optimal pick path mapping and just-in-time replenishment of inventory from backstock, allowing pickers
to operate with maximum efficiency and ensuring necessary inventory is always available in active picking locations. The system also
manages a year-round cycle counting process, maintaining consistent inventory integrity which eliminates the need for an annual physical
inventory.
Consumer
facing applications include our website and mobile site, both built and managed internally. Members can interact with our service, update
their style preferences, change payment methods, update delivery frequency, pause or skip a box, select add-ons, checkout for orders
and seamlessly exchange items for different sizing. Multiple member retention and experience features have been built into the application
as well, including refer-a-friend, loyalty (kidpik koins), add-on marketplace, and our influencer/ambassador gateways.
We
have developed a powerful in-house application that affords our stylists and merchandising teams’ complete visibility and control
over our product line. This allows styling to occur virtually and efficiently. An intuitive, easy-to-use interface allows for millions
of potential outfit combinations to be created and properly tagged with dozens of data markers for usage by our proprietary algorithm.
The application is fully integrated with our customer relationship management (CRM) database and inventory system and provides up-to-date
visibility to inventory levels and consumer feedback.
Subscription
and Children’s Apparel Industry Trends
According
to 2023 estimates by Statista, in its Children’s Apparel Report 2022, revenue in the children’s apparel segment will
total approximately $267 billion in 2023, of which approximately $53 billion is forecasted to be generated in the United States and is
projected to grow at a compounded annual growth rate (CAGR) of 2.46% through 2027.
Pursuant
to a February 2022 study by The Subscribed Institute, subscription businesses have consistently outperformed sales revenue growth of
non-subscription businesses. Zuora, Inc., a leading subscription management platform provider, in its February 2022, bi-annual Subscription
Economy Index™ (SEI), noted that subscription businesses have grown by 4.6x faster than the S&P 500 over the past decade, driven
by an increase in consumer demand for the use of subscription services. The childrenswear apparel market is one of necessity, and consequently
is very price sensitive as children regularly out-grow their clothes and shoes. Through our integration model, we control the majority
of the process from design to merchandising, procurement and fulfillment. This allows us to negotiate the costs directly with the suppliers,
avoiding having to pay middlemen markups. We believe that this integration process allows us to offer lower prices and obtain higher
margins resulting in a strong value equation of price, quality and fashion.
We
are devoted to improving personalization and experience aspects for our members and plan to continue to develop new technologies and
implement new marketing strategies to stay at the forefront of subscription personalization.
Competition
The
childrenswear market is highly competitive and price sensitive. We compete directly with other subscription clothing services. We also
compete with department stores, mass merchants, discount stores, specialty chains and other retail stores, including their online platforms,
brick-and-mortar locations, and other e-commerce companies selling children’s apparel.
Competitive
Advantage
We
believe we have a competitive advantage over online and brick-and-mortar sellers who do not offer curated, personalized fashion, fully
coordinated outfits delivered free, and do not offer the convenience that our subscription service provides.
We
further believe that the combination of our robust client dataset and refined proprietary technology offers us a competitive advantage
in a marketplace with considerable barriers to entry, due to the complexity of building IT systems that can adequately support this type
of clothing subscription process and the algorithm involved in yielding member personalization and satisfaction.
Sourcing
Our
clothing, shoes and accessories are manufactured under our own kidpik brand name and are produced according to our own specifications.
We have long-standing relationships with our manufacturers; however, we have no long-term contractual agreements. We produce
our goods in two countries, China and Turkey. In 2021, we experienced delivery delays due to nationwide supply chain issues and COVID-19.
Our top six factories account for over 68% of our production and, combined, have been with us for over five years on average, despite
the fact that we have only been in operation for only a little over seven years. We look at various points of criteria before choosing
factories - cost, product quality, social and safety conditions, reliability, minimum order quantity, technical skills, and lead times
(order to delivery). We test each style with a third party to ensure that it is compliant with the Consumer Product Safety Improvement
Act (CPSIA) requirements. As the goods arrive at our warehouse, we inspect each style, color, and size to make sure that all products
meet our standards and specifications, prior to shipping to customers.
We
have a team of product buyers with years of experience. We have the knowledge and expertise in building each style’s cost from
the bottom up.
Organizational
History
We
were formed as “ER18 LLC”, a Delaware limited liability company on April 16, 2015, in connection with the filing of
a Certificate of Formation with the Secretary of State of Delaware. On August 24, 2015, we filed a Certificate of Amendment to our Certificate
of Formation with the Secretary of State of Delaware, changing our name to Kidpik LLC. On August 18, 2016, pursuant to the filing of
a Certificate of Conversion from a Limited Liability Company to a Corporation pursuant to Section 265 of the Delaware General Corporation
Law, we converted from a Delaware limited liability company to a Delaware corporation (the “Conversion”). Immediately
prior to the Conversion, Ezra Dabah (our current Chief Executive Officer and Chairman), his wife and their children owned 100% of the
limited liability company interests. Immediately subsequent to the Conversion, Mr. and Mrs. Dabah and their children owned 671,000 shares
of common stock.
On
January 14, 2019, we filed an Amended and Restated Certificate of Incorporation with the Secretary of State of Delaware, which had been
approved by the stockholders, which among other things, affected a 10-for-1 forward stock split of our outstanding common stock and increased
our authorized common stock from 1,500 shares of common stock no par value per share, to 10,000 shares of common stock, no par value
per share.
On
May 9, 2021, the stockholders approved the filing of a Second Amended and Restated Certificate of Incorporation, which was subsequently
filed with the Secretary of State of Delaware on May 10, 2021, which, among other things, effected a 671-for-1 forward split of our outstanding
common stock, increased our authorized common stock to 75 million shares of common stock, $0.001 par value per share, and authorized
25 million shares of “blank check” preferred stock, with a par value of $0.001 per share.
Each
of the forward stock splits discussed above have been retroactively reflected throughout this Report.
Government
Regulation
We
are subject to numerous U.S. federal and state and foreign laws and regulations that affect companies conducting business on the internet.
Many of these laws and regulations are still evolving and being tested in courts, and could be interpreted in ways that could harm our
business. These may involve user privacy, data protection and personal information, the privacy of consumer information and other laws
regarding unfair and deceptive trade practices.
U.S.
federal and state and foreign laws and regulations, which in some cases can be enforced by private parties in addition to government
entities, are constantly evolving and can be subject to significant change. As a result, the application, interpretation, and enforcement
of these laws and regulations are often uncertain, particularly in the new and rapidly evolving industry in which we operate, and may
be interpreted and applied inconsistently from country to country and inconsistently with our current policies and practices.
Our
sales of apparel, shoes and accessories, are also subject to regulation, including in the United States by the Federal Trade Commission
and the Consumer Products Safety Commission (CPSC), as well as various other federal, state, local and foreign regulatory authorities.
These laws and regulations principally relate to the proper labeling, advertising, marketing, manufacture, safety, shipment and disposal
of our products. Because we import our products from abroad, we are also subject to import regulations and regulations relating to trade.
For example, the California Transparency in Supply Chains Act, which became effective on January 1, 2012, requires us to provide certain
information about our efforts to eradicate human trafficking from our supply chain.
Because
we sell children’s products, we are also subject to the Consumer Product Safety Improvement Act, which requires that children’s
products: (a) comply with all applicable children’s product safety rules; (b) be tested for compliance by a CPSC-accepted accredited
laboratory, unless subject to an exception; (c) have a written Children’s Product Certificate that provides evidence of the product’s
compliance; and (d) have permanent tracking information affixed to the product and its packaging where practicable.
To
the best of our knowledge, all of our suppliers and manufacturers adhere to labor and workplace standards and operate in compliance with
all applicable laws, including laws prohibiting child labor, forced labor and unsafe working conditions.
We,
as are many other companies, are also subject to environmental laws, rules and regulations which could affect our operations. We
do not estimate any significant capital expenditures for environmental control matters either in the current fiscal year or in the near
future.
Proposed
or new legislation and regulations could also significantly affect our business. There currently are a number of proposals pending before
federal, state, and foreign legislative and regulatory bodies.
For
more information about laws and regulations applicable to our business, see “Risks Related to Government Regulation.”
Intellectual
Property
Our
intellectual property includes the content of our websites, our registered domain names, our registered and unregistered trademarks,
and certain trade secrets. We believe that our intellectual property is an essential asset of our business and that our registered domain
name and our technology infrastructure will give us a competitive advantage in the marketplace. We plan to rely on a combination of patent
(where applicable), trademark, copyright, trade secret, including federal, state and common law rights in the United States and other
countries, nondisclosure agreements, and other measures to protect our intellectual property. Despite any measures taken to protect our
intellectual property, unauthorized parties may attempt to copy aspects of our products or to obtain and use information that we regard
as proprietary. Our business is affected by our ability to protect against misappropriation and infringement of our intellectual property
and other proprietary rights.
Trademarks
and Copyrights
We
maintain various U.S. federal and foreign (China, Canada, Mexico, the European Union and the United Kingdom) trademarks for our trademarks
and also rely on federal or statutory common law copyright and trade secret protections in relation to our brand name.
Employees
As
of the date of the filing of this Report, we had 25 full-time employees, located in New York and California. Marketing has four employees,
merchandising has four employees, design has three employees, production has two employees, customer service has four employees, IT has
three employees, finance has three employees, and the warehouse has two employees. On
a limited basis, we may use temporary personnel to supplement our workforce as business needs arise. None
of our employees are represented by a labor union or covered by a collective bargaining agreement.
We
are focused on the safety, retention and development of our existing employees and the recruitment of new employees. We promote a holistic
approach to building our team and have created a culture that is inclusive, diverse and high performing. We seek out and hire team members
who bring specialized, functional expertise while able to collaborate effectively across functions. We believe our compensation programs
are competitive relative to others in our industry and are designed to attract, retain and reward personnel through the combination of
cash-based compensation, equity-based compensation and benefits.
Novel
Coronavirus (COVID-19)
In
December 2019, a novel strain of coronavirus, which causes the infectious disease known as COVID-19, was reported in Wuhan, China.
The World Health Organization declared COVID-19 a “Public Health Emergency of International Concern” on January
30, 2020 and a global pandemic on March 11, 2020. In March and April 2020, many U.S. states and local jurisdictions began issuing
‘stay-at-home’ orders. During the majority of March and April 2020, we closed our California warehouse and were not able
to ship products due to stay-at-home orders which were issued in the State of California. We resumed shipping April 17, 2020,
following safety protocols and Centers for Disease Control and Prevention (CDC) guidelines. On an aggregate basis we lost about two
weeks of potential revenue during this period where we were unable to ship products. For the months of March and April 2020, our new
member acquisitions were reduced dramatically. Beginning in early May 2020 through the month of June 2020, our new member
acquisitions grew significantly, most likely due to stay-at-home orders when consumers shifted to shopping online, before leveling
off to expected growth numbers. Consumer trends and the availability of materials have mainly returned to pre-pandemic levels to
date and the Biden administration recently has advised that it intends to end the COVID-19 national and public health emergencies on
May 11, 2023.
Although
COVID-19 has had a major impact on businesses around the world, to date, we have only experienced negative impacts regarding our warehouse
shutdown from March and April 2020, and disruption in delayed arrival of our merchandise due to the pandemic. Since then, our warehouse
returned to working at a full capacity; however, the full extent to which COVID-19 will ultimately impact us depends on future unknowable
developments, including the duration and spread of the virus, as well as potential new seasonal outbreaks, the efficacy of vaccines,
and the willingness of individuals to take such vaccines, all of which are uncertain and cannot be predicted. Additionally, the COVID-19
pandemic and resulting economic disruption has also led to significant volatility in the capital markets, increased inflation and interest
rates. While we have taken measures to preserve our access to liquidity, our cash generated from operations has been negatively impacted
and future cash flows may be impacted by recent economic conditions, volatility in capital markets, inflation and high interest rates.
Emerging
Growth Company under the JOBS Act
As
a company with less than $1.235 billion in revenue during our last fiscal year, we qualify as an “emerging growth company”
under the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. As an emerging growth company, we have elected to take advantage
of reduced reporting requirements and are relieved of certain other significant requirements that are otherwise generally applicable
to public companies. As an emerging growth company:
●
we may present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis
of Financial Condition and Results of Operations;
●
we are exempt from the requirement to obtain an attestation and report from our auditors on whether we maintained effective internal
control over financial reporting under the Sarbanes-Oxley Act;
●
we are permitted to provide less extensive disclosure about our executive compensation arrangements; and
●
we are not required to give our stockholders non-binding advisory votes on executive compensation or golden parachute arrangements.
We
may take advantage of these provisions until January 2, 2027 (the last day of the fiscal year following the fifth anniversary of our
initial public offering) if we continue to be an emerging growth company. We would cease to be an emerging growth company if we have
more than $1.235 billion in annual revenue, have more than $700 million in market value of our shares held by non-affiliates or issue
more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage of some but not all of these
reduced burdens. We have elected to provide two years of audited financial statements. Additionally, we have elected to take advantage
of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act, for complying with new or revised accounting
standards that have different effective dates for public and private companies until the earlier of the date we (i) are no longer an
emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided in Section 7(a)(2)(B)
of the Securities Act.
Controlled
Company
Ezra
Dabah, our Chief Executive Officer and Chairman, our principal stockholder, currently controls approximately 62.2% of the voting power
of our capital stock (based on shares of common stock outstanding as of March 31, 2023), and we are therefore a “controlled
company” as defined under Nasdaq Marketplace Rules. We currently intend to rely on the controlled company exemptions provided
under Nasdaq Marketplace Rules, which permit us to rely on certain exemptions from corporate governance rules, including: (a) an exemption
from the rule that a majority of our board of directors must be independent directors; (b) an exemption from the rule that the compensation
of our chief executive officer must be determined or recommended solely by independent directors; and (c) an exemption from the rule
that our director nominees must be selected or recommended solely by independent directors.
Available
Information
The
Company makes available free of charge through its internet website, https://investor.kidpik.com/sec-filings, its annual reports on Form
10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to these reports filed or furnished pursuant to Section
or 15(d) of the Exchange Act, as soon as reasonably practicable after the Company electronically files such material with, or furnishes
it to, the SEC. Our SEC filings are also available to the public at the SEC’s web site at https://www.sec.gov. Information
contained in, or that can be accessed through, our website is not a part of, and is not incorporated into, this Report.
Further, the Company’s references to website URLs are intended to be inactive textual references only.
Item
1A. Risk Factors
Summary
Risk Factors
Our
business is subject to varying degrees of risk and uncertainty. Investors should consider the risks and uncertainties summarized below,
as well as the risks and uncertainties immediately following this summary. Our business operations could also be affected by factors
that we currently consider to be immaterial or that are unknown to us at the present time. If any of these risks occur, our business,
financial condition, and results of operations could be materially and adversely affected, and the trading price of our common stock
could decline or our common stock could become worthless:
● |
Our
history of losses, our ability to achieve profitability, our need for additional funding and the availability and terms of such funding,
as well as potential dilution caused thereby; |
|
|
● |
Our
ability to execute our growth strategy and scale our operations and risks associated with such growth, our ability to maintain current
members and customers and grow our members and customers; |
|
|
● |
Risks
associated with our supply chain and third-party service providers, interruptions in the supply of raw materials and merchandise,
increased costs of raw materials, products and shipping costs due to inflation, disruptions at our warehouse facility and/or of our
data or information services, issues affecting our shipping providers, and disruptions to the internet, any of which may have a material
adverse effect on our operations; |
|
|
● |
Risks
of changes in consumer spending due to changes in interest rates, increased inflation, declines in economic activity or recessions; |
|
|
● |
Risks
that effect our ability to successfully market our products to key demographics; |
|
|
● |
The
effect of data security breaches, malicious code and/or hackers; |
|
|
● |
Increased
competition and our ability to maintain and strengthen our brand name; |
|
|
● |
Changes
in consumer tastes and preferences and changing fashion trends; |
|
|
● |
Material
changes and/or terminations of our relationships with key vendors; |
|
|
● |
Significant
product returns from customers, excess inventory and our ability to manage our inventory; |
|
|
● |
The
effect of trade restrictions and tariffs, increased costs associated therewith and/or decreased availability of products; |
● |
Our
ability to innovate, expand our offerings and compete against competitors which may have greater resources; |
|
|
● |
Certain
anti-dilutive, drag-along and tag-along rights which may be deemed to be held by a former minority stockholder; |
|
|
● |
Our
significant reliance on related party transactions and loans; |
|
|
● |
The
fact that our Chief Executive Officer, Ezra Dabah, has majority voting control over the Company; |
|
|
● |
If
the use of “cookie” tracking technologies is further restricted, regulated, or blocked, or if changes in technology cause
cookies to become less reliable or acceptable as a means of tracking consumer behavior, the amount or accuracy of internet user information
would decrease, which could harm our business and operating results; |
● |
Our
ability to comply with the covenants of future loan agreements; |
|
|
● |
Our
ability to prevent credit card and payment fraud; |
|
|
● |
The
risk of unauthorized access to confidential information; |
|
|
● |
System
interruptions that impair client access to our website or other performance failures in our technology infrastructure could damage
our business; |
● |
Our
ability to protect our intellectual property and trade secrets, claims from third-parties that we have violated their intellectual
property or trade secrets and potential lawsuits in connection therewith; |
|
|
● |
Our
ability to comply with changing regulations and laws, penalties associated with any non-compliance (inadvertent or otherwise), the
effect of new laws or regulations, our ability to comply with such new laws or regulations, changes in tax rates; |
|
|
● |
Our
reliance on our current management, who are not party to any employment agreements with us; |
|
|
● |
The
outcome of future lawsuits, litigation, regulatory matters or claims; |
|
|
● |
Certain
terms and provisions of our governing documents which may prevent a change of control, and which provide for indemnification of officers
and directors, limit the liability of officers or directors, and provide for the board of director’s ability to issue blank
check preferred stock; |
|
|
● |
The
fact that we have a limited operating history; the effect of future acquisitions on our operations and expenses; |
|
|
● |
Our
significant indebtedness; |
|
|
● |
We
may require additional capital to support business growth, and this capital might not be available or may be available only by diluting
existing stockholders; |
|
|
● |
The
anticipated volatile nature of the trading prices of our common stock and dilution which may be caused by future sales of securities;
and |
|
|
● |
Risks
associated with our status as an “emerging growth company”. |
Risk
Factors
Our
business involves significant risks. You should
carefully consider the following risk factors, in addition to the other information contained in this Report, including the section of
this report captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our
financial statements and related notes. If any of the events described in the following risk factors or the risks described elsewhere
in this Report occurs, our business, operating results and financial condition could be seriously harmed. This Report also contains forward-looking
statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking
statements as a result of factors that are described below and elsewhere in this Report. The risks
and uncertainties described below are not the only ones we face. Additional risk and uncertainties that we are unaware of or that we
deem immaterial may also become important factors that adversely affect our business. The realization of any of these risks and uncertainties
could have a material adverse effect on our reputation, business, financial condition, results of operations, growth and future prospects
as well as our ability to accomplish our strategic objectives. In that event, the market price of our common stock could decline and
you could lose part or all of your investment. Our actual results could differ materially from those anticipated in the forward-looking
statements as a result of specific factors, including the risks and uncertainties described below.
Risks
Related to Our Business and Industry
There
is substantial doubt about our ability to continue as a going concern and we will need additional capital which may not be available
on favorable terms, if at all.
We
have experienced net losses in each year since our inception. We had accumulated deficits of $41,534,445 and $33,919,184 as of December
31, 2022 and January 1, 2022, respectively. In the years ended December 31, 2022 and January 1, 2022, we incurred net losses of $7,615,261
and $5,947,547, respectively. The Company’s ability to continue its operations is dependent upon obtaining new financing for its
ongoing operations and on the Company’s plans to reduce the inventory level. To manage operating cash flows in the near term, the
Company plans to significantly reduce purchases of new inventory and if available, may enter into cash advance or other financing arrangement.
Future financing options available to the Company include equity financings, debt financings or other capital sources, including collaborations
with other companies or other strategic transactions to fund existing operations and execute management’s growth strategy. Equity
financings may include sales of common stock, warrants and/or preferred stock. Such financing may not be available on terms favorable
to the Company or at all. The terms of any financing may adversely affect the holdings or rights of the Company’s stockholders
and may cause significant dilution to existing stockholders. Although management continues to pursue these plans, there is no assurance
that the Company will be successful in obtaining sufficient funding on terms acceptable to the Company to fund continued operations,
if at all, which would have a material adverse effect on its business, financial condition and results of operations, and it could ultimately
be forced to discontinue its operations and liquidate. These matters, when considered in the aggregate, raise substantial doubt about
the Company’s ability to continue as a going concern for a reasonable period of time, which is defined as within one year after
the date that the financial statements are issued. The accompanying financial statements do not contain any adjustments to
reflect the possible future effects on the classification of assets or the amounts and classification of liabilities that might result
from the outcome of this uncertainty. The doubt regarding our potential ability to continue as a going concern may adversely affect our
ability to obtain new financing on reasonable terms or at all. Additionally, if we are unable to continue as a going concern, our stockholders
may lose some or all of their investment in the Company. If we are unable to access additional capital moving forward, it may hurt our
ability to grow and to generate future revenue, or may force us to seek bankruptcy protection and any investment in the Company could
be lost as part of any bankruptcy proceeding.
We
will require additional capital to fund our existing operations and grow, and our inability to obtain such capital, or to adequately
manage our existing capital resources, could materially adversely affect our business, financial condition and operating results.
To
support our existing operations or any future expansion of our business, including our ability to continue to execute our growth strategy,
we must have sufficient capital to continue to make investments and to fund our operations. If required financing is not available, on
favorable terms or at all, we may be unable to operate our business, develop new business or execute on our strategic plan to sustain
net revenue growth, in each case at the rate desired or at all, and our operating results would suffer. Our inability to obtain adequate
capital resources, whether in the form of equity or debt, to adequately manage our existing capital resources, or to fund our business
and strategies would require us to delay, scale back or eliminate some or all of our operations or any future expansion of our business,
which could materially adversely affect our business, financial condition and operating results.
We
have a history of losses, and we may be unable to achieve or sustain profitability.
We
have experienced net losses in each year since our inception. In the years ended December 31, 2022 and January 1, 2022, we incurred net
losses of $7,615,261 and $5,947,547, respectively. We anticipate that we will continue to incur substantial operating expenses in the
foreseeable future as we continue to invest to attract new and retain existing members and attract new customers, invest to further optimize
and drive efficiency in our distribution and fulfillment capabilities, expand our product offerings, and enhance our technology and infrastructure.
These efforts may prove more expensive than we anticipate, and we may not succeed in increasing our net revenue and margins sufficiently
to offset these expenses or at all, which may require us to reduce certain expenditures that could be important to maintaining or increasing
our net revenue and margins. We incur significant expenses in operating our fulfillment center, including personnel costs, obtaining
and storing inventory, and developing our technology. In addition, many of our expenses, including the costs associated with our fulfillment
center, are fixed. We also incur significant expenses associated with the production of merchandise and the shipping of such merchandise
to our warehouse and to members and customers. Accordingly, we may not be able to achieve or maintain profitability, and we may incur
significant losses for the foreseeable future.
We
may be unable to successfully execute our growth strategy. If we fail to retain our existing subscription members and traditional point-of-purchase
e-commerce customers or cost effectively acquire new members and customers or if we fail to achieve profitability, our business would
be materially adversely affected.
Our
growth strategy, and our ability to grow net revenue and operate profitably, may require additional financing and, together with cost
optimization initiatives, will depend largely on our ability to retain existing members (i.e., those persons who have signed up for our
subscription services) and customers (i.e., those persons who have not signed up for subscription services, but who purchase our merchandise
directly from our website or through other e-commerce sites where we offer items for sale (for example, through Amazon.com and Walmart.com),
to cost effectively acquire new members and customers, and to keep members and customers engaged so that they continue to purchase products
from us. If we are unable to retain our existing members and customers, cost effectively acquire new members and customers, or keep members
and customers engaged, our business, financial condition and operating results would be materially adversely affected. While our revenues
for the year ended December 31, 2022, decreased by 24.5% to $16,477,984, compared to $21,834,518 for the year ended January 1, 2022,
a decrease of $5,356,534 from the prior year, partly due to an increase in demand due to COVID-19 in 2021, we cannot assure you that
our number of members, or the revenues generated thereby, will increase in the future. While we experienced an increase in demand in
2021, which we believe is due, in part, to the impact the COVID-19 pandemic had on consumer behaviors, demand decreased in 2022 as COVID-19
restrictions were lifted. We also believe that revenues for 2022 were negatively affected
by changing consumer spending habits impacted by worsening economic conditions, including increases in inflation and interest rates and
declines in market activity.
We
have historically spent significant amounts on advertising and other marketing activities. The majority of our advertisements to date
have been on Facebook Ads and Google Ads. For the years ended December 31, 2022 and January 1, 2022, our marketing expenses were relatively
the same at $3.1 million for both years, representing approximately 18.6% and 14.4% of each year’s net revenue, respectively, and
are included in general and administrative expenses. We may, however, choose to increase or decrease such spending in the future, which
could have a material adverse effect on our results of operations.
As
we continue to refine our marketing strategy to strategically prioritize customer acquisition channels that we believe will be more successful
at attracting customers and members, we may fail to identify channels that accomplish this objective or fail to understand or mitigate
continuing and new negative effects of reducing our marketing expenses or of limiting our investment in historical marketing channels.
Any of these failures may adversely impact our ability to attract or retain potential members and customers, including by making us less
competitive relative to competitors who spend a larger portion of their revenue on marketing.
Our
net revenue in any period is essentially a function of our ability to attract and retain members and customers and the frequency and
size of the orders purchased or placed by those members and customers. If members and customers do not perceive our product offerings
to be of sufficient value and quality, or if we fail to offer new and relevant product offerings, we may not be able to attract or retain
members and customers or engage existing members and customers so that they continue to purchase products from us, which could have a
material adverse effect on our results of operations.
The
children of our current and future customers and members will likely age out of our product offerings.
We
sell our fashion subscription boxes (which we call ‘piks’) for boys and girls, sizes 2T-16. We also sell shoes, from size
7 toddler to size 6 youth, including sneakers, boots, sandals, and dress shoes. Because we do not currently offer sizing above 16 in
our clothing lines and/or above 6 youth in our shoes, it is likely that the children of our current members and customers, and future
customers and members, will age out of our product offerings. For example, the children of any current members or customers, who fit
into the merchandise sizing that we currently offer as of the date of this Report, will likely grow too big for such sizing in the future.
We believe that a size 16 will fit the average child, ages 11-13; however, each child is different. Because children age/size out of
our offerings over time, we are constantly needing to find new members and customers to maintain and expand our revenues.
A
significant portion of our marketing is dependent upon advertisements placed on Facebook, Instagram and other social media platforms
and changes to such social media platforms terms of use, or changes that limit the ability of advertisers to collect and use data to
target and measure advertising, similar to those already adopted, are expected to have a negative impact on our advertising costs and
marketing efforts in the future.
Historically,
we have acquired a significant portion of new members and subscribers through advertisements placed on the Facebook, Instagram and other
social media platforms. In connection therewith we are subject to the terms and conditions of Facebook, Instagram and such other platforms,
which may be changed by such platforms at their sole discretion at any time. If these social media platforms change their standard terms
and conditions in a way that is detrimental to us, our business would be harmed and our operating results would be adversely affected.
Furthermore,
our business may be harmed if any of the social media platforms we advertise on:
● |
discontinue
or limit our access to their platform; |
|
|
● |
modify
their terms of service or other policies which limit our ability to advertise on their platforms; |
|
|
● |
change
how the personal information of its users is made available to advertisers or is able to be shared by users, in furtherance of similar
changes discussed below; |
|
|
● |
establish
more favorable relationships with one or more of our competitors; or |
|
|
● |
develop
or acquire its own competitive offerings. |
Further,
mobile operating system and web browser providers, such as Apple and Google, have implemented product changes to limit the ability of
advertisers to collect and use data to target and measure advertising. For example, Apple made a change in iOS 14 that required apps
to get a user’s opt-in permission before tracking or sharing the user’s data across apps or websites owned by companies other
than the app’s owner. Google intends to further
restrict the use of third-party cookies in its Chrome browser in 2024, consistent with similar
actions taken by the owners of other browsers, such as Apple in its Safari browser, and Mozilla in its Firefox browser. These changes
have reduced and will continue to reduce our ability to efficiently target and measure advertising, in particular through online social
networks, making our advertising less cost effective and successful. We expect to continue to be impacted by these changes.
Finally,
with respect to our email marketing efforts, if we are unable to successfully deliver emails to our clients or if clients do not engage
with our emails, whether out of choice, because those emails are marked as low priority or spam, or for other reasons, our business could
be adversely affected.
Economic
uncertainty may affect consumer purchases of discretionary items, which has affected and may continue to adversely affect demand for
our products.
Our
products may be considered discretionary items for consumers. Factors affecting the level of consumer spending for such discretionary
items include general economic conditions and other factors such as consumer confidence in future economic conditions, fears of recession
and trade wars, the price of energy, fluctuating interest rates, the availability and cost of consumer credit, the availability and timing
of government stimulus programs, levels of unemployment, inflation, and tax rates. Adverse economic conditions, such as a recession,
in the United States, or protracted periods of high inflation or high energy prices may contribute to higher unemployment levels, decreased
consumer spending, reduced credit availability and declining consumer confidence and demand, any of which poses a risk to our business.
Any sustained economic downturn in the United States may cause significant readjustments in both the volume and mix of our product sales
and level of members, which could materially and adversely affect our business, operating results and financial condition. Additionally,
disruptions in the credit and other financial markets and economic conditions could, among other things, impair the financial condition
of one or more of the Company’s vendors, which could have a material adverse effect on the Company’s business, prospects,
results of operations, financial condition and/or cash flows. If we are unable to successfully navigate adverse economic conditions,
including offsetting the impact of high inflation and high energy prices on our business, our business, financial condition, and results
of operations may be adversely affected. Additionally, unfavorable economic conditions have led and in the future may lead, consumers
to delay or reduce purchases of our products. Consumer demand for our products may decline as a result of an economic downturn, recession,
or economic uncertainty in the United States. Our sensitivity to economic cycles and any related fluctuation in consumer demand may have
a material adverse effect on our business, results of operations, and financial condition.
Economic
uncertainty may affect our access to capital and/or increase the costs of such capital.
Global
economic conditions continue to be volatile and uncertain due to, among other things, consumer confidence in future economic conditions,
fears of recession and trade wars, the price of energy, fluctuating interest rates, the availability and cost of consumer credit, the
availability and timing of government stimulus programs, levels of unemployment, increased inflation, tax rates and the ongoing conflict
between the Ukraine and Russia. These conditions remain unpredictable and create uncertainties about our ability to raise capital in
the future. In the event required capital becomes unavailable in the future, or more costly, it could have a material adverse effect
on our business, results of operations, and financial condition.
Our
industry and the broader US economy have experienced higher than expected inflationary pressures in 2022, related to continued supply
chain disruptions, labor shortages and geopolitical instability. Should these conditions persist, our business, results of operations
and cash flows could be materially and adversely affected.
In
2022 we saw significant increases in the costs of labor and certain materials and equipment, and longer lead times for such materials
and equipment, as a result of availability constraints, supply chain disruption, increased demand, labor shortages associated with a
fully employed US labor force, high inflation and other factors. Supply and demand fundamentals have been further aggravated by disruptions
in global energy supply caused by multiple geopolitical events, including the ongoing conflict between Russia and Ukraine. Recent supply
chain constraints and inflationary pressures have in the past, and may in the future, adversely impact our operating costs, as a result,
our business, financial condition, results of operations and cash flows could be materially and adversely affected.
The
termination of, or material changes to, our relationships with key vendors could materially adversely affect our business, financial
condition and operating results, which could be exacerbated due to our reliance on a small number of vendors for a significant portion
of our inventory.
We
contract to manufacture with vendors for the products we sell. For the year ended December 31, 2022, two vendors accounted for
approximately 48% of inventory purchases. For the year ended January 1, 2022, three vendors accounted for approximately 49% of inventory purchases. In the
event these vendors decide to terminate their relationships with us or cease supplying products, such vendors may be difficult to
replace and/or the products they supply us may be more expensive or of lesser quality. It can take a significant amount of time and
resources to identify, develop and maintain relationships with vendors. The termination of, or material changes to, arrangements
with key vendors, disagreements with key vendors as to payment or other terms, or the failure of a key supplier or vendor to meet
its contractual obligations to us may require us to contract with alternative vendors. If we have to replace key vendors, we may be
subject to pricing or other terms less favorable than those we currently enjoy, and it may be difficult to identify and secure
relationships with alternative vendors that are able to meet our volume requirements and quality or other standards. If we cannot
replace or engage vendors who meet our specifications and standards in a short period of time, we could encounter increased
expenses, shortages of items, disruptions or delays in customer shipments. Such affects could be further exacerbated due to our
reliance on a small number of vendors for the majority of our inventory purchases. If any of the above were to occur, we could
experience delays in shipments, cancellations and a reduction in sales revenue, any of which could materially adversely affect our
business, financial condition and operating results.
Our
business and results of operations could be adversely affected by natural disasters, public health crises, political crises, negative
global climate patterns, or other catastrophic events.
Natural
disasters, such as hurricanes, tornadoes, floods, earthquakes, wildfires, and other extreme weather conditions; unforeseen public health
crises, such as pandemics and epidemics (including, for example, the ongoing COVID-19 pandemic); political crises, such as terrorist
attacks, war, labor unrest, and other political instability; negative global climate patterns, especially in water stressed regions;
or other catastrophic events or disasters occurring in or impacting the areas in which fulfilment center, corporate offices or our vendors’
manufacturing facilities are located, whether occurring in the United States or internationally, could disrupt our and our vendors’
operations. Additionally, climate change may increase both the frequency and severity of extreme weather conditions and natural disasters,
and the physical changes prompted by climate change could result in increased regulation or changes in consumer preferences.
In
particular, these types of events could impact our supply chain from or to the impacted region and could impact our ability or other
third parties to operate our websites or distribution center. These types of events could also negatively impact consumer spending in
the impacted regions or, depending upon the severity, globally. Disasters occurring at our vendors’ manufacturing facilities could
impact our reputation and our customers’ perception of our brand. To the extent any of these events occur, our business and results
of operations could be adversely affected.
In
February 2022, in response to the military conflict between Russia and Ukraine, the United States and other North Atlantic Treaty Organization
member states, as well as non-member states, announced targeted economic sanctions on Russia, including certain Russian citizens and
enterprises, and the continuation of the conflict may trigger additional economic and other sanctions. The potential impact of the conflict
and any resulting bans, sanctions and boycotts on our business is uncertain at the current time due to the fluid nature of the conflict
as it is unfolding. The potential impacts could include supply chain and logistics disruptions, macro financial impacts resulting from
the exclusion of Russian financial institutions from the global banking system, volatility in foreign exchange rates and interest rates,
inflationary pressures on raw materials and energy and heightened cybersecurity threats. We have no current operations in Russia or Ukraine;
however, we do not and cannot know if the conflict, which is unfolding in real-time, could escalate and result in broader economic and
security concerns which could adversely affect our business, financial condition or results of operations.
Our
results of operations and future revenues could be materially and adversely affected by future pandemics and diseases.
During
the majority of March and April 2020, we closed our California warehouse due to stay-at-home orders which were issued in the State
of California. We resumed shipping on April 17, 2020, following safety protocols and Centers for Disease Control and Prevention
(CDC) guidelines, which we strictly adhered to. On an aggregate basis we lost about two weeks of potential revenue during this
period where we were unable to ship products. For the months of March and April 2020, our new member acquisitions were reduced
dramatically. Beginning in early May 2020, and through the month of June 2020, our new member acquisitions grew significantly, most
likely due to stay-at-home orders when consumers shifted to shopping online, before leveling off to expected growth numbers.
Consumer trends and the availability of materials have mainly returned to pre-pandemic levels to date and the Biden administration
has advised that it intends to end the COVID-19 national and public health emergencies on May 11, 2023.
If
the use of “cookie” tracking technologies is further restricted, regulated or blocked, or if changes in technology cause
cookies to become less reliable or acceptable as a means of tracking consumer behavior, the amount or accuracy of internet user information
we collect would decrease, which could harm our business and operating results.
Cookies
are small data files that are sent by websites and stored locally on an internet user’s computer or mobile device. Some of our
third parties, collect data via cookies that are used to track the behavior of visitors to our sites, provide a more personal and interactive
experience and increase the effectiveness of our marketing. However, internet users can easily disable, delete and block cookies directly
through browser settings or through other software, browser extensions or hardware platforms that physically block cookies from being
created and stored.
Privacy
regulations and policies by device operating systems, such as iOS or Android, restrict how we deploy our cookies and this could potentially
increase the number of internet users that choose to proactively disable cookies on their systems. Users can decide to opt out of nearly
all cookie data creation, which could negatively impact our operating results. We may have to develop alternative systems to determine
our consumers’ behavior, customize their online experience or efficiently market to them if consumers block cookies or regulations
introduce additional barriers to collecting cookie data.
System
interruptions that impair client access to our website or other performance failures in our technology infrastructure could damage our
business.
The
satisfactory performance, reliability, and availability of our website, internal applications, and technology infrastructure are critical
to our business. We rely on our website to engage with our clients and sell them merchandise. We also rely on a host of internal custom-built
applications to run critical business functions, such as styling, merchandise purchasing, warehouse operations, and order fulfillment.
In addition, we rely on a variety of third-party, cloud-based solution vendors for key elements of our technology infrastructure. These
systems are vulnerable to damage or interruption. Interruptions may also be caused by a variety of incidents, including human error,
our failure to update or improve our proprietary systems, cyber attacks, fire, flood, earthquake, power loss, or telecommunications failures.
These risks are exacerbated by hybrid remote workforce. Any failure or interruption of our website, internal business applications, or
our technology infrastructure could harm our ability to serve our clients, which would adversely affect our business and operating results.
Our
business, including our costs and supply chain, which is subject to risks associated with sourcing, manufacturing and warehousing.
We
currently source all of the merchandise we offer from third-party vendors, and as a result we may be subject to price fluctuations or
demand disruptions. Our operating results would be negatively impacted by increases in the prices of our merchandise, and we have no
guarantees that prices will not rise in the future. In addition, as we expand into new categories and product types, we expect that we
may not have strong purchasing power in these new areas, which could lead to higher prices than we have historically seen in our current
categories. We may not be able to pass increased prices on to members, which could adversely affect our operating results. Moreover,
in the event of a significant disruption in the supply of the fabrics or raw materials used in the manufacture of the merchandise we
offer, the vendors that we work with might not be able to locate alternative suppliers of materials of comparable quality at an acceptable
price. For example, natural disasters have in the past increased raw material costs, impacting pricing with certain of our vendors, and
caused shipping delays for certain of our merchandise. Any delays, interruption, damage to or increased costs in the manufacture of the
merchandise we offer could result in higher prices to acquire the merchandise or non-delivery of merchandise altogether, and could adversely
affect our operating results. We are also subject to risks associated with inflation and increasing costs of raw materials, manufacturing
or vendor costs. We are also subject to risks associated with inflation and increasing costs of raw materials, manufacturing or vendor
costs.
In
addition, we cannot guarantee that merchandise we receive from vendors will be of sufficient quality or free from damage, or that such
merchandise will not be damaged during shipping, while stored in our distribution center or when returned by customers. While we take
measures to ensure merchandise quality and avoid damage, including evaluating vendor product samples, conducting inventory inspections
and inspecting returned product, we cannot control merchandise while it is out of our possession. We may incur additional expenses and
our reputation could be harmed if members and potential members believe that our merchandise is not of high-quality or may be damaged.
Increased
competition presents an ongoing threat to the success of our business.
We
expect competition for our services to increase in the future. We compete with other clothing subscription delivery companies, online
clothing stores and traditional brick and mortar clothing stores. We believe that our ability to compete depends upon many factors both
within and beyond our control, including:
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our
marketing efforts; |
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the
flexibility and variety of our product offerings relative to our competitors, and our ability to timely launch new product initiatives; |
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the
quality and price of products offered by us and our competitors; |
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our
reputation and brand strength relative to our competitors; |
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customer
satisfaction; |
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consumer
tastes and preferences, which change from time to time; |
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the
size and composition of our customer base; |
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the
convenience of the experience that we provide; |
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our
ability to comply with, and manage the costs of complying with, laws and regulations applicable to our business; |
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our
ability to cost-effectively source and distribute the products we offer and to manage our operations, including as a result of increasing
inflation; |
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the
styling of our products; and |
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the
coordination of items we ship in each box. |
Some
of our current competitors have, and potential competitors may have, longer operating histories, larger or more efficient fulfillment
infrastructures, greater technical capabilities, significantly greater financial, marketing and other resources and larger customer bases
than we do. In addition, business combinations and consolidation in and across the industries in which we compete could further increase
the competition we face and result in competitors with significantly greater resources and customer bases than us. Further, some of our
other current or potential competitors may be smaller, less regulated, and have a greater ability to reposition their product offerings
than we do. These factors may allow our competitors to derive greater sales and profits from their existing customer base, acquire members
and customers at lower costs, respond more quickly than we can to changes in consumer demand and tastes, or otherwise compete with us
effectively, which may adversely affect our business, financial condition and operating results. These competitors may engage in more
extensive research and development efforts, undertake more far-reaching marketing campaigns and adopt more aggressive pricing policies,
which may allow them to build larger customer bases or generate additional sales more effectively than we do.
Furthermore,
companies with greater resources or more well-known brand names may attempt to compete with us, and as a result, we may lose current
or potential members and customers and may be unable to generate sufficient revenues to support our operations, any one of which could
have a material adverse effect on our ability to grow and our results of operations.
If
we fail to successfully improve our customer experience, including by continuing to develop new product offerings and enhancing our existing
product offerings, our ability to retain existing members and customers and attract new members and customers, may be materially adversely
affected.
Our
members and customers have a wide variety of options for purchasing clothes, and consumer tastes and preferences may change from time
to time. Our ability to retain existing members and customers, attract new members and customers and increase customer engagement with
us will depend in part on our ability to successfully improve our customer experience, including by continuing to create and introduce
new product offerings, improving upon and enhancing our existing product offerings and strengthening our members’ interactions
with our brand and products. If new or enhanced product offerings are unsuccessful, we may be unable to attract or retain members and
customers and our operating results could be materially adversely affected. Furthermore, new or shifting customer demands, tastes or
interests, superior competitive offerings or a deterioration in our product offering quality or our ability to bring new or enhanced
product offerings to market quickly and efficiently could negatively affect the attractiveness of our products and the economics of our
business and require us to make substantial changes to and additional investments in our product offerings or business model.
Our
business depends on our brand, and any failure to maintain, protect or enhance our brand, including as a result of events outside our
control, could materially adversely affect our business.
We
believe that we have developed a strong and trusted brand, and we believe our future success depends on our ability to maintain and grow
the value of the “kidpik” brand. Maintaining, promoting and positioning our brand and reputation will depend on, among
other factors, the success of our marketing and merchandising efforts and our ability to provide a consistent, high-quality customer
experience. Any negative publicity, regardless of its accuracy, could materially adversely affect our business. Brand value is based
in large part on perceptions of subjective qualities, and any incident that erodes the loyalty of our members and customers or suppliers,
including adverse publicity or a governmental investigation or litigation, could significantly reduce the value of our brand and significantly
damage our business.
The
value of our brand also depends on effective customer support to provide a high-quality customer experience, which requires significant
personnel expense. If not managed properly, this expense could impact our profitability. Failure to manage or train our own or outsourced
customer support representatives properly, or our inability to hire sufficient customer support representatives could result in lower-quality
customer support and/or increased customer response times, compromising our ability to handle customer complaints effectively.
Changes
in consumer tastes and preferences or in consumer spending and other economic or financial market conditions could materially adversely
affect our business and our inability to develop and introduce new merchandise offerings in a timely and cost-effective manner may damage
our business, financial condition and operating results.
The
largest portion of our revenue today comes from the sale of girls’ apparel. In the Summer of 2020, we expanded our merchandise
offering to boys and in the Spring of 2021, we introduced Toddler for boys and girls in sizes 2T and 3T. We continue to explore additional
offerings to serve our existing members and to attract new members. However, any new offerings may not have the same success, or gain
traction as quickly, as our current offerings. Our operating results may be materially adversely affected by changes in consumer tastes
and preferences. Our future success depends in part on our ability to anticipate the tastes, shopping habits, trends and lifestyle preferences
of consumers and to offer products that appeal to consumer tastes and preferences. Consumer tastes and preferences may change from time
to time and can be affected by a number of different trends and other factors that are beyond our control. Our competitors may react
more efficiently and effectively to these changes than we can. If we fail to anticipate, identify or react to changes and trends, or
to introduce new and improved product offerings on a timely basis, we may experience reduced demand for our product offerings, which
could materially adversely affect our business, financial condition and operating results.
In
addition, the business of selling clothing products over the internet, and more specifically, selling such products as part of a subscription
model, is dynamic and continues to evolve. Our market segment has grown significantly, and this growth may not continue or may decline,
including specifically with respect to the subscription model portion of the industry. If members and customers cease to find value in
this model or otherwise lose interest in our product offerings or our business model generally, we may not acquire new members and customers
in numbers sufficient to sustain growth in our business or retain existing members and customers at rates consistent with our business
model, our business, financial condition and operating results could be materially adversely affected.
Furthermore,
preferences and overall economic conditions that impact consumer confidence and spending, including discretionary spending, could have
a material impact on our business. Economic conditions affecting disposable consumer income such as employment levels, business conditions,
slower growth or recession, market volatility and related uncertainty, negative financial news, changes in housing market conditions,
the availability of credit, interest rates, tax rates, new or increased tariffs, fuel and energy costs, the effect of natural disasters
or acts of terrorism, and other matters, including as a result of increasing interest rates and high inflation and their impact on economic
conditions, could reduce consumer spending or cause consumers to shift their spending to lower-priced alternatives, each of which could
materially adversely affect our business, financial condition and operating results.
In
addition to an adverse impact on demand for our products, uncertainty about, or a decline in, economic conditions, could have a significant
impact on our suppliers, logistics providers and other business partners, including resulting in financial instability, inability to
obtain credit to finance operations and insolvency. Our vendors and their manufacturing and assembly activities are located outside the
United States, and as a result our operations and performance depend on both global and regional economic conditions. These and other
economic factors could materially adversely affect our business, financial condition and operating results.
Changes
in clothing and footwear costs and availability could materially adversely affect our business.
The
future success of our business depends in part on our ability to anticipate and react to changes in clothing and footwear costs and availability.
We are susceptible to increases in clothing costs as a result of factors beyond our control, such as general economic conditions, market
changes, increased competition, general risk of inflation, exchange rate fluctuations, seasonal fluctuations, shortages or interruptions,
weather conditions, changes in global climates, shipping delays, global demand, public health crises, such as pandemics and epidemics,
generalized infectious diseases, changes in law or policy, declines in fertile or arable lands suitable for growing textiles, the availability
of synthetic fabrics, product recalls and government regulations. For example, any renewed negative impact of the COVID-19 pandemic,
future pandemic or diseases or climate change on the availability of natural or man-made fabrics and other clothing or footwear materials
could materially and adversely affect our business, financial condition and operating results. We generally do not have long-term supply
contracts or guaranteed purchase commitments with our suppliers. Additionally, inflation, which has recently increased and is still higher
than it has been in the last several years, can have both a short-term and a long-term impact on us because of increasing costs of materials,
shipping and labor, which may impact our ability to maintain satisfactory margins. We have experienced increases in our product manufacturing
costs and other expenses due to inflation. Increases in inflation may not be matched by rises in income, which also could have a negative
impact on spending by our customers. Increases in manufacturing and other product and shipping costs due to inflation, like those currently
being experienced, will require us to raise prices or cut other expenses to maintain current margins, and any required increase in the
pricing of our products may be met with decreased demand, which could materially adversely affect our margins, revenues and results of
operations.
We
may be unable to scale our operations fast enough to bring down our cost of sales and generate revenues sufficient to support our operations.
We
believe that in general, the faster we are able to scale up our operations, the lower our cost of sales, as a percentage of revenue,
will be, as we believe that certain economics of scale exist with our operations. If we are unable to grow our business fast enough to
take advantage of these economies of scale, our operations may suffer, and we may not be profitable.
Our
acquisition, sales and shipping operations require us to manage and communicate with vendors, partners and third parties all over the
world.
Our
operations require us to keep in contact with, and communicate with, vendors, partners and third parties all over the world. Our failure
to effectively communicate which such parties, either due to issues with connectivity, communication issues, or changes in time zones,
among others, could have a material adverse effect on our ability to complete our business plan, expand our operations, manage our sales
and growth, and meet customer needs. As a result, such failure could have a material adverse effect on our operations, revenues and future
growth.
Disruptions
in our warehouse operations could adversely affect sales and customer satisfaction.
We
currently receive, package and ship merchandise at our warehouse located in Southern California. We depend on the orderly operation of
our warehouse, and will in the future depend on additional warehouses, to distribute our products. Although we believe that our receiving
and distribution process is efficient, unforeseen disruptions in operations due to fires, hurricanes, earthquakes or other catastrophic
events, labor issues or other shipping problems may result in delays in the delivery of products to our warehouse(s), delays in shipping
products to members and customers, or delays in such members and customers receiving products on a timely basis, which could adversely
affect sales and the satisfaction of our members and customers. Separately, if we are unable to adequately staff our warehouse(s) or
if the cost of such staffing is higher than historical or projected costs, our margins may be negatively affected. In addition, warehousing
comes with potential risks, such as workplace safety issues and employment claims for the failure or alleged failure to comply with labor
laws or laws respecting union organizing activities. Any such issues may result in delays in shipping times or packing quality, and our
reputation and operating results may be harmed.
We
have recently experienced shipping delays to and from our customers as a result of our shipping vendors’ challenges fulfilling
higher eCommerce shipping demand, which has impacted our results of operations.
Natural
disasters or other catastrophic events could negatively affect our business, financial condition, and results of operations.
Natural
disasters, such as hurricanes, typhoons or earthquakes, could negatively affect our operations and financial performance. Such events
could result in physical damage to our warehouse or future warehouses, the temporary closure of our warehouse or future warehouses, the
temporary lack of an adequate work force at a warehouse, the temporary or long-term disruption in the supply of products from some local
or overseas suppliers, the temporary disruption in the transport of goods to or from overseas, delays in the delivery of goods to our
warehouse or future warehouses, and the temporary reduction in the availability of products in our warehouse or future warehouses. Public
health issues, whether occurring in the U.S. or abroad, could disrupt our operations, disrupt the operations of suppliers or have an
adverse impact on consumer spending and confidence levels. These events could also reduce demand for our products or make it difficult
or impossible to receive products from suppliers or ship products to members and customers. We may be required to suspend operations
in some or all of our locations, which could have a material adverse effect on our business, financial condition and results of operations.
We
face risks associated with product returns and the costs of such returns which could reduce our net revenues and results of operations.
Our
members and customers are able to return products which we ship to them for free. If we do not do a good job anticipating the upcoming
trends or ship items to members that do not fit their style and receive a higher return rate than expected, we could lose money on shipping
costs and could have to find ways to unload excess inventory at prices below those anticipated. Although we maintain a reserve for returns,
we could be forced to accept substantial product returns beyond such reserve in the future, which would be costly, not just due to the
excess inventory that would create, but because we have to pay the costs of shipping and returns. Product returns that exceed our reserves
could harm our business and financial results. From time to time our products are damaged in transit, which can increase return rates
and harm our brand.
We
rely upon independent third-party transportation providers for substantially all of our product shipments and are subject to increased
shipping costs as well as the potential inability of our third-party transportation providers to deliver on a timely basis.
We
currently rely upon independent third-party transportation providers for substantially all of our product shipments, including shipments
to and from all of members and customers, and currently rely on FedEx SmartPost shipping in connection with U.S. Postal Service for substantially
all of our shipping needs. Our utilization of these delivery services (and more specifically, FedEx via the U.S. Post Office) for shipments
is subject to risks which may impact a shipping company’s ability to provide delivery services that adequately meet our shipping
needs, including risks related to employee strikes, labor and capacity constraints, port security considerations, trade policy changes
or restrictions, military conflicts, acts of terrorism, accidents, natural disasters and inclement weather. In addition, our clothing,
shoes and accessories are currently manufactured under our own brand name in only two countries, China and Turkey. Accordingly, any delays
in production and added costs in China or Turkey could have a more significant impact on our results of operations. Any interruption
in services provided by our shipping companies could cause temporary disruptions in our business, a loss of sales and profits, and other
material adverse effects. In addition, we are subject to increased shipping costs when fuel prices increase, as we use expedited means
of transportation such as air freight. If we change the shipping company we use, we could face logistical difficulties that could adversely
affect deliveries, and we would incur costs and expend resources in connection with such change. Moreover, we may not be able to obtain
terms as favorable as those received from our current independent third-party transportation provider which, in turn, would increase
our costs.
Our
gross margins could be adversely affected if we are unable to manage our inventory effectively.
The
nature of the apparel and footwear industry requires us to carry a significant amount of inventory. Merchandise usually must be ordered
well in advance of the season and frequently before apparel trends are confirmed by customer purchases. We must enter into contracts
for the purchase and manufacture of merchandise well in advance of the applicable selling season. As a result, we are vulnerable to demand
and pricing shifts and to sub-optimal selection and timing of merchandise purchases. If sales do not meet expectations (for example,
due to decreased demand due to deteriorating economic conditions or recessions), too much inventory may cause excessive markdowns and,
therefore, lower-than-planned margins. We have not always predicted member’s and customers’ preferences with accuracy and
may have issues predicting preferences in the future. Our failure to accurately predict market trends and manage our inventory may require
us to write-down future inventory or sell such inventory at a loss.
Our
ability to source our merchandise could be negatively impacted if new trade restrictions are imposed or existing trade restrictions become
more burdensome.
The
United States and China and Turkey, where our products are manufactured, may impose additional quotas, duties, tariffs, or other restrictions
or regulations, or may adversely adjust prevailing quota, duty, or tariff levels. These restrictions or regulations could have an adverse
effect on our financial statements for the period or periods for which the applicable final determinations are made. Countries impose,
modify, and remove tariffs and other trade restrictions in response to a diverse array of factors, including global and national economic
and political conditions, which make it impossible for us to predict future developments regarding tariffs and other trade restrictions.
Trade restrictions, including tariffs, quotas, embargoes, safeguards, and customs restrictions, could increase the cost or reduce the
supply of products available to us or may require us to modify our supply chain organization or other current business practices, any
of which could harm our business, financial condition, and results of operations. We are dependent on international trade agreements
and regulations. If the United States were to withdraw from or materially modify certain international trade agreements, our business
could be adversely affected.
In
recent years, the U.S. government has imposed increased
tariffs on certain imports from China. Additional tariffs may be imposed on other imports from China in the future, including on items
that we import. While it is too early to predict how the recently enacted and proposed tariffs on items imported from China will impact
our business, such tariffs could require us to increase prices, which could reduce the competitiveness of our products or, if we do not
increase prices, result in lower gross margin on products sold. In either case, increased tariffs or trade restrictions implemented by
the United States or other countries in connection with a global trade war could have a material adverse effect on our business, financial
condition and results of operations.
Our
business is highly dependent upon our ability to identify and respond to new and changing fashion trends, customer preferences, and other
related factors. Our inability to identify and respond to these new trends may lead to inventory markdowns and write-offs, which could
adversely affect us and our brand image.
Our
success depends in large part upon our ability to effectively identify and respond to changing fashion trends and consumer demands and
to translate market trends into desired product offerings. Our failure to identify and react appropriately to new and changing fashion
trends or tastes, to accurately forecast demand for certain product offerings, could lead to, among other things, excess or insufficient
amounts of inventory, markdowns, write-offs, and lower product margins, any of which could materially adversely affect our business.
Because our success depends significantly on our brand image, damage to our brand image as a result of our failure to identify and respond
to changing fashion trends could have a material negative impact on us. We often place orders for products ahead of when the product
will be sold. Therefore, we are vulnerable to changes in consumer preference and demand, and pricing shifts, between the time we design
and order our products and when the merchandise will be sold. There can be no assurance that we will be able to adequately and timely
respond to the preferences of our members and customers. The failure of any of our product offerings to appeal to our members and customers
could have a material adverse effect on our business, results of operations, and financial condition.
Our
business is sensitive to overall levels of consumer spending, particularly in the children’s apparel market.
Both
retail and wholesale consumer demand for children apparel and accessories, is affected by the overall level of consumer spending. Overall
spending in the market is affected by a number of factors, including birth rate fluctuations and general economic conditions. In addition,
discretionary consumer spending is affected by a number of factors, such as the weather, the overall economy and employment levels, stock
market returns, inflation, interest rates, uncertainty in the political climate, gasoline and utility costs, business conditions, availability
of consumer credit, tax rates, the availability of tax credits, interest rates, levels of consumer indebtedness, foreign currency exchange
rates, and overall levels of consumer confidence. Reductions, or lower-than-expected growth, in the level of discretionary or overall
end consumer spending may have a material adverse effect on our sales and results of operations. Furthermore, any increases in consumer
discretionary spending during times of crisis may be temporary, such as those related to government stimulus programs. Economic conditions
in certain regions may also be affected by natural disasters, such as hurricanes, tropical storms, earthquakes, and wildfires; other
public health crises; and other major unforeseen events. These and other social, political and economic factors could adversely affect
demand for our products, which would negatively impact our business, results of operations and financial condition. Furthermore, economic
conditions in certain regions may also be affected by natural disasters, such as hurricanes, tropical storms, earthquakes, and wildfires;
public health crises; and other major unforeseen events.
We
may be unable to maintain a high level of engagement with our members and customers and increase their spending with us, which could
harm our business, financial condition, or operating results.
Most
of our revenue comes from repeat purchases by active members and subscribers. If existing members and customers no longer find our service
and products appealing or appropriately priced, they may make fewer purchases and may stop using our service. Even if our existing members
and customers continue to find our service and products appealing, they may decide to reduce the frequency of shipments and purchase
fewer products over time as their demand for new apparel declines. A decrease in the number of members and customers, a decrease in customer
spending on the products we offer, or our inability to attract high-quality members and customers could negatively affect our operating
results. Further, we believe that our future success will depend in part on our ability to increase sales to our existing members and
customers over time and, if we are unable to do so, our business may suffer.
Our
ability to grow our operations and revenues depends on our ability to attract new members and customers.
Our
ability to grow our operations and revenues depends on our ability to cost-effectively attract new members and customers. To do that,
we must appeal to and acquire members and customers who have historically used other means to purchase children’s apparel, shoes,
and accessories, such as traditional brick-and-mortar apparel retailers or the websites of our competitors. We also face competition
for members and customers from other retailers who offer or plan to offer similar services as ours. We reach new members and customers
through paid marketing, referral programs, organic word of mouth, email, and other methods of discovery, such as mentions in the press
or internet search engine results. Although we expect to increase marketing spend over time, our marketing activity and spend may vary
from period to period and we may adjust our marketing strategy or spend within a period if we are not achieving the intended results
or if we believe the return-on-investment is not favorable, which may result in faster or slower rates of active client growth in any
given period. Moreover, new members and customers may not purchase from us as frequently or spend as much with us as existing members
and customers, and the revenue generated from new members and customers may not be as high as the revenue generated from our existing
members and customers.
We
have historically been significantly reliant on related party relationships and loans.
Prior
to our IPO, our operating expenses were significantly supplemented by related party loans and equity purchases from Ezra Dabah, our Chief
Executive Officer and Chairman and his family, all of which have since been converted into equity or repaid. We also sublease our corporate
office and our California fulfillment center from Nina Footwear Corp., which is 86.36% owned by Ezra Dabah and his family including Moshe
Dabah, our Vice President, Chief Operating Officer and Chief Technology Officer, and Secretary, and which entity Mr. Ezra Dabah serves
as Chief Executive Officer and member of the Board of Directors of (“Nina Footwear”). Nina Footwear also provides
us administrative and executive support services under a Management Services Agreement in consideration for 0.75% of our monthly net
sales. For the years ended December 31, 2022 and January 1, 2022, the total fees payable to Nina Footwear pursuant to the Management
Services Agreement were $110,836 and $150,697, respectively, and are included in general and administrative expenses. In the event the
sublease agreements are terminated, we may not be able to find comparable office and fulfillment center arrangements and/or the costs
of such arrangements may be significantly higher than those charged by Nina Footwear. Furthermore, we may be unable to support our operations
if Ezra Dabah and his family members stop loaning us money. As of December 31, 2022 and January 1, 2022, there was $1,107,665 and $913,708
due to Nina Footwear, respectively. Additionally, in the event the Management Services Agreement was terminated, our costs may increase,
and we may be unable to cost effectively obtain the services currently provided by Nina Footwear. While we believe that all related party
agreements are on terms similar to, or more favorable to, the Company than we would obtain from third parties, such significant related
party relationships may be perceived negatively by potential stockholders or investors. Our significant related party relationships and
transactions, the terms of such relationships and transactions, and/or the termination of any such relationships or transactions, may
have a material adverse effect on our results of operations moving forward.
We
have one former minority stockholder of the Company, who may be deemed to hold anti-dilution, drag-along and tag-along rights, which
have no termination date.
Pursuant
to certain prior Investment Agreements and Conversion Agreements entered into with the majority of our current stockholders prior to
our IPO, such stockholders were granted preemptive, anti-dilution, drag-along and tag-along rights. On May 12, 2021, the Company and
each then stockholder of the Company, except for one minority stockholder, entered into a Covenant Termination and Release Agreement,
whereby each executing stockholder, in consideration for $10, agreed to terminate any and all preemptive rights, anti-dilutive rights,
tag-along, drag-along or other special stockholder rights which they held as a result of the terms of any prior Investment Agreements
or Conversion Agreements, and release the Company from any and all liability or obligations in connection with any such rights. However,
one non-related stockholder of the Company who then held 147,620 shares of common stock (2.7% of the Company’s current outstanding
common stock), pursuant to a January 14, 2019 Conversion Agreement, did not execute such Covenant Termination and Release Agreement.
Although the shares originally held by such stockholder were subsequently transferred, the language regarding the termination of anti-dilution,
drag-along and tag-along rights is not. As such, although the Company believes that all rights were terminated upon the transfer of the
shares originally held by such minority stockholder, it is possible that such minority stockholder continues to hold contractual drag-along
rights (providing for rights to be dragged along in any transaction relating to the sale of a majority of the Company’s outstanding
shares or assets, or the sale of 50% or more of the outstanding common stock of the Company, or any merger or consolidation of the Company,
on the same terms, and subject to the same conditions, as other sellers) and tag-along rights (to tag-along with any transaction proposed
by Ezra Dabah, our Chief Executive Officer and Chairman, or his affiliates with a third party, on the same terms and in the same proportion,
as Ezra Dabah and his affiliates), as well as stockholder adjustment rights, whereby if the Company ever issues shares of capital stock
(or any securities convertible into or exchangeable or exercisable for capital stock, or any options, warrants or other rights to purchase,
subscribe for or otherwise acquire capital stock), at a price per share less than $3.3870749 per share, the Company is required to issue
such stockholder a number of additional shares of common stock equal to the difference between (i) 147,620 shares of common stock and
(ii) $500,000, divided by the dilutive price. Such anti-dilutive rights, drag-along and tag-along rights, to the extent they continue
to apply, will have no expiration date. As discussed above, it is the Company’s belief that such rights expired automatically upon
the transfer of the shares of stock originally held by such stockholder, however, in the event such anti-dilutive rights are deemed to
apply and triggered, it could cause significant dilution to existing stockholders. Furthermore, such anti-dilution, tag-along and drag-along
rights, or the risk that such rights continue to apply, may make the Company less desirable for an acquisition, which may otherwise be
beneficial to stockholders, may complicate future offerings and/or may result in the value of the Company’s securities having trading
prices less than a similarly situated company which did not have outstanding anti-dilution, tag-along and drag-along rights, or risks
that such rights apply.
The
ability of certain key employees to devote adequate time to us are critical to the success of our business, and failure to do so may
adversely affect our revenues and as a result could materially adversely affect our business, financial condition and results of operations.
We
must retain the services of our key employees and strategically recruit and hire new talented employees to obtain customer transactions
that generate most of our revenues. Mr. Ezra Dabah also serves as the Chief Executive Officer and director of our Company since April
2015 (and Chairman since October 2021). Ezra Dabah also serves as the Chief Executive Officer and member of the Board of Directors of
Nina Footwear, a wholesaler of women’s and kids’ shoes and accessories (a position he has held since 2012). Mr. Moshe Dabah
is currently Chief Operating Officer and Chief Technology Officer of the Company and has served as Vice President of the Company since
July 2019. Since January 2021, Moshe Dabah has served as the Secretary of Nina Footwear. Nina Footwear is 86.36% owned by Ezra Dabah
and his family. Ezra Dabah spends approximately 80% of his time on Company matters and approximately 20% of his time as Chief Executive
Officer and director of Nina Footwear and Moshe Dabah spends approximately 90% of his time on Company matters and approximately 10% of
his time as the Secretary of Nina Footwear. As a result, these key employees dedicate only a portion of their professional efforts to
our business and operations, and there is no contractual obligation for them to spend a specific amount of their time with us. These
key employees may not be able to dedicate adequate time to our business and operations and we could experience an adverse effect on our
operations due to the demands placed on our management team by their other professional obligations. In addition, these key employees’
other responsibilities could cause conflicts of interest with us.
Risks
Relating to Data and Information Systems
Disruptions
in our data and information systems could harm our reputation and our ability to run our business.
We
rely extensively on data and information systems for our supply chain, order processing algorithm, fulfillment operations, financial
reporting, human resources and various other operations, processes and transactions. Furthermore, a significant portion of the communications
between, and storage of personal data of, our personnel, members, customers and suppliers depend on information technology. Our data
and information systems are subject to damage or interruption from power outages, computer and telecommunications failures, computer
viruses, security breaches (including breaches of our transaction processing or other systems that could result in the compromise of
confidential customer data), catastrophic events, data breaches and usage errors by our employees or third-party service providers. Our
data and information technology systems may also fail to perform as we anticipate, and we may encounter difficulties in adapting these
systems to changing technologies or expanding them to meet the future needs of our business. If our systems are breached again, damaged
or cease to function properly, we may have to make significant investments to fix or replace them, suffer interruptions in our operations,
incur liability to our members, customers and others or face costly litigation, and our reputation with our members and customers may
be harmed. We also rely on third parties for a majority of our data and information systems, including for third-party hosting and payment
processing. If these facilities fail, or if they suffer a security breach or interruption or degradation of service, a significant amount
of our data could be lost or compromised and our ability to operate our business and deliver our product offerings could be materially
impaired. In addition, various third parties, such as our suppliers and payment processors, also rely heavily on information technology
systems, and any failure of these systems could also cause loss of sales, transactional or other data and significant interruptions to
our business. Any material interruption in the data and information technology systems we rely on, including the data or information
technology systems of third parties, could materially adversely affect our business, financial condition and operating results.
Our
business has in the past been, and may in the future be, subject to data security risks, including security breaches.
We,
or our third-party vendors on our behalf, collect, process, store and transmit substantial amounts of information, including information
about our members and customers. We take steps to protect the security and integrity of the information we collect, process, store or
transmit, but there is no guarantee that inadvertent or unauthorized use or disclosure will not occur or that third parties will not
gain unauthorized access to this information despite such efforts. Security breaches, computer malware, computer hacking attacks and
other compromises of information security measures have become more prevalent in the business world and may occur on our systems or those
of our vendors in the future. We were subject to a ransomware attack in July 2020. The attack was exacted on equipment located at our
executive offices located at 200 Park Avenue South, New York, New York 10003. The attackers gained access to the network via virtual
private network (VPN) and proceeded to encrypt local desktop computers and servers connected to that domain. There was no exposure of
our customer database or primary system servers which host our website in the attack, as they are not located at our corporate offices.
By the following day, the threat had been mitigated and office systems were decrypted a few days later. Large internet companies and
websites have from time to time disclosed sophisticated and targeted attacks on portions of their websites, and an increasing number
have reported such attacks resulting in breaches of their information security. We and our third-party vendors are at risk of suffering
from similar attacks and breaches (similar to the July 2020 breach described above). Although we take steps to maintain confidential
and proprietary information on our information systems, these measures and technology may not adequately prevent security breaches and
we rely on our third-party vendors to take appropriate measures to protect the security and integrity of the information on those information
systems. Because techniques used to obtain unauthorized access to or to sabotage information systems change frequently and may not be
known until launched against us, we may be unable to anticipate or prevent these attacks. In addition, a party who is able to illicitly
obtain a customer’s identification and password credentials may be able to access the customer’s account and certain account
data.
Any
actual (similar to the attack described above) or suspected security breach or other compromise of our security measures or those of
our third-party vendors, whether as a result of hacking efforts, denial-of-service attacks, viruses, malicious software, break-ins, phishing
attacks, social engineering or otherwise, could harm our reputation and business, damage our brand and make it harder to retain existing
members and customers or acquire new ones, require us to expend significant capital and other resources to address the breach, and result
in a violation of applicable laws, regulations or other legal obligations. Our insurance policies may not cover, or may not be adequate
to reimburse us for, losses caused by any such security breach.
We
rely on email and other messaging services to connect with our existing and potential members and customers. Our members and customers
may be targeted by parties using fraudulent spoofing and phishing emails to misappropriate passwords, payment information or other personal
information or to introduce viruses through Trojan horse programs or otherwise through our members’ and customers’ computers,
smartphones, tablets or other devices. Despite our efforts to mitigate the effectiveness of such malicious email campaigns through product
improvements, spoofing and phishing may damage our brand and increase our costs. Any of these events or circumstances could materially
adversely affect our business, financial condition and operating results.
Our
websites have in the past encountered, and may in the future encounter, technical problems and service interruptions.
Our
websites have in the past encountered, and may in the future experience, slower response times or interruptions as a result of increased
traffic or other reasons. These delays and interruptions resulting from failure to maintain internet service connections to our site
have in the past and may in the future frustrate visitors and reduce our future web site traffic, which could have a material adverse
effect on our business.
Our
business is exposed to risks associated with credit card and other online payment chargebacks and fraud.
A
majority of our revenue is processed through credit cards and other online payments (including PayPal). If our refunds or chargebacks
increase, our processors could require us to create reserves, increase fees or terminate their contracts with us, which would have an
adverse effect on our financial condition. Our failure to limit fraudulent transactions conducted on our websites, such as through the
use of stolen credit card numbers, could also subject us to liability and adversely impact our reputation. Under credit card association
rules, penalties may be imposed at the discretion of the association for inadequate fraud protection. Any such potential penalties would
be imposed on our credit card processor by the association. However, we face the risk that we may fail to maintain an adequate level
of fraud protection and that one or more credit card associations or other processors may, at any time, assess penalties against us or
terminate our ability to accept credit card payments or other form of online payments from members and customers, which would have a
material adverse effect on our business, financial condition and operating results.
We
could also incur significant fines or lose our ability to give members and customers the option of using credit cards to pay for our
products if we fail to follow payment card industry data security standards, even if there is no compromise of customer information.
Although we believe we are in compliance with payment card industry data security standards and do not believe there has been a compromise
of customer information, it is possible that at times we have not, or may not be, in full compliance with these standards. Accordingly,
we could be fined, which could impact our financial condition, or our ability to accept credit and debit cards as payment could be suspended,
which would cause us to be unable to process payments using credit cards. If we are unable to accept credit card payments, our business,
financial condition and operating results may be adversely affected.
In
addition, we could be liable if there is a breach of the payment information. Online commerce and communications depend on the secure
transmission of confidential information over public networks. We rely on encryption and authentication technology to authenticate and
secure the transmission of confidential information, including cardholder information. However, this technology may not prevent breaches
of the systems we use to protect cardholder information. In addition, some of our partners also collect or possess information about
our members and customers, and we may be subject to litigation or our reputation may be harmed if our partners fail to protect our members’
and customers’ information or if they use it in a manner inconsistent with our policies and practices. Data breaches can also occur
as a result of non-technical issues. Under our contracts with our processors, if there is unauthorized access to, or disclosure of, credit
card information we store, we could be liable to the credit card issuing banks for their cost of issuing new cards and related expenses.
There
may be losses or unauthorized access to or releases of confidential information, including personally identifiable information, that
could subject the Company to significant reputational, financial, legal and operational consequences.
The
Company’s business requires it to use, transmit and store confidential information including, among other things, personally identifiable
information (“PII”) with respect to the Company’s members, customers and employees. The Company devotes significant
resources to network and data security, including through the use of encryption and other security measures intended to protect its systems
and data. But these measures cannot provide absolute security, and losses or unauthorized access to or releases of confidential information
could occur and could materially adversely affect the Company’s reputation, financial condition and operating results. The Company’s
business also requires it to share confidential information with third parties. Although the Company takes steps to secure confidential
information that is provided to third parties, such measures are not always effective and losses or unauthorized access to or releases
of confidential information occur and could materially adversely affect the Company’s reputation, financial condition and operating
results.
For
example, the Company may experience a security breach impacting the Company’s information technology systems that compromises the
confidentiality, integrity or availability of confidential information. Such an incident could, among other things, impair the Company’s
ability to attract and retain members and customers for its products and services, impact the Company’s stock price, materially
damage supplier relationships, and expose the Company to litigation or government investigations, which could result in penalties, fines
or judgments against the Company.
Under
payment card rules and obligations, if cardholder information is potentially compromised, the Company could be liable for associated
investigatory expenses and could also incur significant fees or fines if the Company fails to follow payment card industry data security
standards. The Company could also experience a significant increase in payment card transaction costs or lose the ability to process
payment cards if it fails to follow payment card industry data security standards, which would materially adversely affect the Company’s
reputation, financial condition and operating results.
Risks
Related to Government Regulation
Our
business is subject to a wide variety of U.S. and foreign government laws and regulations. These laws and regulations, as well as any
new or changed laws or regulations, could disrupt our operations or increase our compliance costs. Failure to comply with such laws and
regulations could have a further adverse impact on our business.
We
are subject to a wide variety of laws and regulations relating to the markets in which we operate or to various aspects of our business.
Laws and regulations at the foreign, federal, state and local levels frequently change, and we cannot always reasonably predict the impact
from, or the ultimate cost of compliance with, future regulatory or administrative changes. Changes in law, the imposition of new or
additional regulations or the enactment of any new or more stringent legislation that impacts employment and labor, trade, advertising
and marketing practices, pricing, consumer credit offerings, product testing and safety, transportation and logistics, health care, tax,
accounting, privacy and data security, health and safety, financial crimes and sanctions or environmental issues, among others, could
require us to change the way we do business and could have a material adverse impact on our sales, profitability, cash flows and financial
condition. Moreover, our production, marketing, advertising and other business practices could become the subject of proceedings before
regulatory authorities or the subject of claims by other parties that could require us to alter or end those practices or adopt new practices
that are not as effective or are more expensive.
In
addition, our operations are subject to federal, state, provincial and local laws and regulations relating to pollution, environmental
protection, occupational health and safety and labor and employee relations. New or different laws or regulations could increase direct
compliance costs for us or may cause our vendors to raise the prices they charge us because of increased compliance costs. Further, the
adoption of a multi-layered regulatory approach to any one of the state or federal laws or regulations to which we are currently subject,
particularly where the layers are in conflict, could require alteration of our processes which may adversely impact our business. We
may not be in complete compliance with all such requirements at all times and, even when we believe that we are in complete compliance,
a regulatory agency may determine that we are not. Our operations could also be impacted by a number of pending legislative and regulatory
proposals in the United States and other countries to address global climate change. These actions could increase costs associated with
our operations, including costs for raw materials, pollution control equipment and transportation. Because it is uncertain what laws
will be enacted, we cannot predict the potential impact of such laws on our business, financial condition, and results of operations.
Additionally, our operations and those of our suppliers are subject to foreign exchange, tariff, environmental, tax and regulatory compliance
risks, among others, which could have a material adverse effect on our business, financial condition, and results of operations.
As
a distributor of consumer products, we are subject to the Consumer Products Safety Act, which empowers the Consumer Products Safety Commission
(CPSC) to exclude from the market products that are found to be unsafe or hazardous. We are also subject to the Consumer Product Safety
Improvement Act, which requires that children’s products: (a) comply with all applicable children’s product safety rules;
(b) be tested for compliance by a CPSC-accepted accredited laboratory, unless subject to an exception; (c) have a written Children’s
Product Certificate that provides evidence of the product’s compliance; and (d) have permanent tracking information affixed to
the product and its packaging where practicable. Under certain circumstances, the Consumer Products Safety Commission could require us
to repurchase or recall one or more of our products. In addition, laws regulating certain consumer products exist in some cities and
states in which we sell our products, and more restrictive laws and regulations may be adopted in the future. Any repurchase or recall
of our products could be costly to us and could damage our reputation. If we were required to remove, or we voluntarily removed, our
products from the market, our reputation could be tarnished and we could have large quantities of products that we are unable to sell.
Several
states currently have laws in effect that are similar to, and, in certain cases, more restrictive than, these federal laws. Compliance
with all of these regulations is costly and time-consuming. Inadvertent violation of any of these regulations could cause us to incur
fines and penalties and may also lead to restrictions on our ability to manufacture and sell our products and services and to import
or export the products we sell. All of which could have a negative effect on revenues or gross profit.
Government
regulation of the internet and e-commerce is evolving, and unfavorable changes or failure by us to comply with these regulations could
substantially harm our business and results of operations.
We
are subject to general business regulations and laws as well as regulations and laws specifically governing the internet and e-commerce.
Existing and future regulations and laws could impede the growth of the internet, e-commerce or mobile commerce. These regulations and
laws may involve taxes, tariffs, privacy and data security, anti-spam, content protection, electronic contracts and communications, consumer
protection and internet neutrality. It is not clear how existing laws governing issues such as property ownership, sales and other taxes,
and consumer privacy apply to the internet as the vast majority of these laws were adopted prior to the advent of the internet and do
not contemplate or address the unique issues raised by the internet or e-commerce. It is possible that general business regulations and
laws, or those specifically governing the internet or e-commerce, may be interpreted and applied in a manner that is inconsistent from
one jurisdiction to another and may conflict with other rules or our practices. We cannot be sure that our practices have complied, comply
or will comply fully with all such laws and regulations. Any failure, or perceived failure, by us to comply with any of these laws or
regulations could result in damage to our reputation, a loss in business and proceedings, or actions against us by governmental entities
or others. Any such proceeding or action could hurt our reputation, force us to spend significant amounts in defense of these proceedings,
distract our management, increase our costs of doing business, decrease the use of our sites by members, customers and suppliers and
may result in the imposition of monetary liability. We may also be contractually liable to indemnify and hold harmless third parties
from the costs or consequences of non-compliance with any such laws or regulations. In addition, it is possible that governments of one
or more countries may seek to censor content available on our websites or may even attempt to completely block access to our websites.
Adverse legal or regulatory developments could substantially harm our business. In particular, in the event that we are restricted, in
whole or in part, from operating in one or more countries, our ability to retain or increase our customer base may be adversely affected,
and we may not be able to maintain or grow our net revenue and expand our business as anticipated.
Failure
to comply with federal, state and foreign laws and regulations relating to privacy, data protection and consumer protection, or the expansion
of current or the enactment of new laws or regulations relating to privacy, data protection and consumer protection, could adversely
affect our business and our financial condition.
A
variety of federal, state and foreign laws and regulations govern the collection, use, retention, sharing and security of consumer data.
Laws and regulations relating to privacy, data protection and consumer protection are evolving and subject to potentially differing interpretations.
These requirements may be interpreted and applied in a manner that is inconsistent from one jurisdiction to another or may conflict with
other rules or our practices. As a result, our practices may not have complied or may not comply in the future with all such laws, regulations,
requirements and obligations. Any failure, or perceived failure, by us to comply with any federal, state or foreign privacy or consumer
protection-related laws, regulations, industry self-regulatory principles, industry standards or codes of conduct, regulatory guidance,
orders to which we may be subject or other legal obligations relating to privacy or consumer protection could adversely affect our reputation,
brand and business, and may result in claims, investigations, proceedings or actions against us by governmental entities or others or
other liabilities or require us to change our operations.
We
collect, store, process, and use personal information and other customer data, and we rely on third parties that are not directly under
our control to manage certain of these operations and to collect, store, process and use payment information. Our members’ and
customers’ personal information may include names, addresses, phone numbers, email addresses, payment card data, and payment account
information, as well as other information. Due to the volume and sensitivity of the personal information and data we and these third
parties manage, the security features of our information systems are critical. If our security measures, some of which are managed by
third parties, are breached or fail, unauthorized persons may be able to access sensitive customer data, including payment card data.
As discussed above, our network has previously been breached by hackers via a virtual private network (VPN) and while they encrypted
certain local desktop computers and servers connected to that domain, there was no exposure of our customer database or primary system
servers which host our website in the attack. If we or our independent service providers or business partners experience a breach of
systems that collect, store or process our members’ and customers’ sensitive data, our brand could be harmed, sales of our
products could decrease, and we could be exposed to claims, losses, administrative fines, litigation or regulatory and governmental investigations
and proceedings. Any such claim, investigation, proceeding or action could hurt our reputation, brand and business, force us to incur
significant expenses in defense of such proceedings, distract our management, increase our costs of doing business, result in a loss
of members, customers and suppliers and may result in the imposition of monetary penalties and administrative fines. Depending on the
nature of the information compromised, we may also have obligations to notify users, law enforcement, or payment companies about the
incident and may need to provide some form of remedy, such as refunds, for the individuals affected by the incident.
Privacy
laws, rules, and regulations are constantly evolving in the United States and abroad and may be inconsistent from one jurisdiction
to another. We expect that new industry standards, laws and regulations will continue to be proposed regarding privacy, data
protection and information security in many jurisdictions, including the California Consumer Privacy Act of 2018, which went
effective January 1, 2020, the California Consumer Privacy Rights Act, which goes effective on January 1, 2023, the Colorado Privacy
Act, which goes effective on July 1, 2023 and the Virginia Consumer Data Protection Act, which went effective January 1, 2023. We
cannot yet determine the impact such future laws, regulations and standards may have on our business. Complying with these evolving
obligations is costly. For instance, expanding definitions and interpretations of what constitutes “personal
data” (or the equivalent) within the United States and elsewhere may increase our compliance costs. Any failure to comply
could give rise to unwanted media attention and other negative publicity, damage our customer and consumer relationships and
reputation, and result in lost sales, claims, administrative fines, lawsuits or regulatory and governmental investigations and
proceedings and may harm our business and results of operations.
Outside
of the United States, there are many countries with data protection laws, and new countries are adopting data protection legislation
with increasing frequency. Many of these laws may require consent from members and customers for the use of data for various purposes,
including marketing, which may reduce our ability to market our products. There is no harmonized approach to these laws and regulations
globally. Consequently, we will increase our risk of non-compliance with applicable foreign data protection laws and regulations if we
expand internationally. We may need to change and limit the way we use personal information in operating our business and may have difficulty
maintaining a single operating model that is compliant. Compliance with such laws and regulations will result in additional costs and
may necessitate changes to our business practices and divergent operating models, limit the effectiveness of our marketing activities,
adversely affect our business and financial condition, and subject us to additional liabilities.
In
addition, various federal, state and foreign legislative and regulatory bodies, or self-regulatory organizations, may expand current
laws or regulations, enact new laws or regulations or issue revised rules or guidance regarding privacy, data protection and consumer
protection. Further regulation and interpretation of existing regulation of cookies and similar technologies may lead to broader restrictions
on our marketing and personalization activities and may negatively impact our efforts to understand users’ internet usage, as well
as the effectiveness of our marketing and our business generally. Such regulations may have a negative effect on businesses, including
ours, that collect and use online usage information for consumer acquisition and marketing, it may increase the cost of operating a business
that collects or uses such information and undertakes online marketing, it may also increase regulatory scrutiny and increase potential
civil liability under data protection or consumer protection laws. Any such changes may force us to incur substantial costs or require
us to change our business practices. This could compromise our ability to pursue our growth strategy effectively and may adversely affect
our ability to acquire members and customers or otherwise harm our business, financial condition, and operating results.
We
may experience fluctuations in our tax obligations and effective tax rate, which could adversely affect our business, results of operations,
and financial condition.
We
are subject to taxes in every jurisdiction in which we operate. We record tax expense based on current tax liabilities and our estimates
of future tax liabilities, which may include reserves for estimates of probable settlements of tax audits. At any one-time, multiple
tax years are subject to audit by various taxing jurisdictions. The results of these audits and negotiations with taxing authorities
may affect the ultimate settlement of these issues. Further, our effective tax rate in a given financial statement period may be materially
impacted by changes in tax laws, changes in the mix and level of earnings by taxing jurisdictions, or changes to existing accounting
rules or regulations. Fluctuations in our tax obligations and effective tax rate could adversely affect our business, results of operations,
and financial condition.
Our
failure to collect state or local sales, use or other similar taxes could result in substantial tax liabilities, including for past sales,
as well as penalties and interest, and our business could be materially adversely affected.
On
June 21, 2018, the U.S. Supreme Court decided, in South Dakota v. Wayfair, Inc., that state and local jurisdictions may, at least
in certain circumstances, enforce a sales and use tax collection obligation on remote vendors that have no physical presence in such
jurisdiction. As a result, all states require sales and use tax collection by remote vendors and/or by online marketplaces. The details
and effective dates of these collection requirements vary from state to state. It is possible that one or more jurisdictions may assert
that we have liability for periods for which we have not collected sales, use or other similar taxes, and if such an assertion or assertions
were successful it could result in substantial tax liabilities, including for past sales as well as penalties and interest, which could
materially adversely affect our business, financial condition and operating results.
Our
reliance on overseas manufacturing, including vendors located in jurisdictions presenting an increased risk of bribery and corruption,
exposes us to legal, reputational and supply chain risk through the potential for violations of federal and international anti-corruption
law.
We
derive our merchandise from third-party manufacturing in foreign countries and territories, including countries and territories perceived
to carry an increased risk of corrupt business practices. The U.S. Foreign Corrupt Practices Act, or the FCPA, prohibits U.S. corporations
and their representatives from offering, promising, authorizing or making payments to any foreign government official, government staff
member, political party or political candidate in an attempt to obtain or retain business abroad. Likewise, the SEC, the U.S. Department
of Justice, OFAC, the U.S. Department of State, as well as other foreign regulatory authorities continue to enforce economic and trade
regulations and anti-corruption laws across industries. U.S. trade sanctions relate to transactions with designated foreign countries
and territories as well as specially targeted individuals and entities that are identified on U.S. and other government blacklists, and
those owned by them or those acting on their behalf. Notwithstanding our efforts to conduct our operations in material compliance with
these regulations, our international vendors could be determined to be our “representatives” under the FCPA, which could
expose us to potential liability for the actions of these vendors under the FCPA. If we or our vendors were determined to have violated
OFAC regulations, the FCPA, the U.K. Bribery Act of 2010, or any of the anti-corruption and anti-bribery laws in the countries and territories
where we and our vendors do business, we could suffer severe fines and penalties, profit disgorgement, injunctions on future conduct,
securities litigation, bans on transacting certain business, and other consequences that may have a material adverse effect on our business,
financial condition and results of operations. In addition, the costs we may incur in defending against any anti-corruption investigations
stemming from our or our vendors’ actions could be significant. Moreover, any actual or alleged corruption in our supply chain
could carry significant reputational harms, including negative publicity, loss of good will, and decline in share price.
We
incur significant costs to ensure compliance with U.S. and NASDAQ reporting and corporate governance requirements.
We
incur significant costs associated with our public company reporting requirements and with applicable U.S. and NASDAQ corporate governance
requirements, including requirements under the Sarbanes-Oxley Act of 2002 and other rules implemented by the SEC and NASDAQ. We expect
all of these applicable rules and regulations to significantly increase our legal and financial compliance costs compared to prior periods
before our IPO and to make some activities more time consuming and costly. We also expect that these applicable rules and regulations
may make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to accept
reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be
more difficult for us to attract and retain qualified individuals to serve on our Board of Directors or as executive officers.
Risks
Related to Management and Directors
Ezra
Dabah, our Chief Executive Officer and member of our Board of Directors, exercises majority voting control over us, which limits your
ability to influence corporate matters and could delay or prevent a change in corporate control.
Ezra
Dabah, our Chief Executive Officer and Chairman, our principal stockholder, currently controls approximately 62.7% of the voting power
of our capital stock. As a result, Mr. Dabah can influence our management and affairs and control the outcome of matters submitted to
our stockholders for approval, including the election of directors and any sale, merger, consolidation, or sale of all or substantially
all of our assets.
Mr.
Dabah acquired his shares of common stock for substantially less than the current trading prices of our shares of common stock, and may
have interests, with respect to his common stock, that are different from other holders of our common stock and the concentration of
voting power held by Mr. Dabah may have an adverse effect on the price of our common stock.
In
addition, this concentration of ownership might adversely affect the market price of our common stock by: (1) delaying, deferring or
preventing a change of control of our Company; (2) impeding a merger, consolidation, takeover or other business combination involving
our Company; or (3) discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of our Company.
Because Mr. Dabah can control the stockholder vote, investors may find it difficult or impossible to replace Mr. Dabah (and such persons
as he may appoint from time to time) as members of our management if they disagree with the way our business is being operated. Additionally,
the interests of Mr. Dabah may differ from the interests of the other stockholders and thus result in corporate decisions that are adverse
to other stockholders.
Ezra
Dabah, our Chief Executive Officer and member of our Board of Directors beneficially owns greater than 50% of our outstanding shares
of common stock, which means we are deemed a “controlled company” under the rules of Nasdaq.
Pursuant
to the terms of a voting agreement, Mr. Dabah individually, currently controls approximately 62.7% of the voting power of our capital
stock. As a result, Mr. Dabah, our Chief Executive Officer and member of our Board of Directors and members of his family, own more than
50% of our outstanding shares, and as such, we are a “controlled company” under the rules of NASDAQ. Under these rules,
a company of which more than 50% of the voting power is held by an individual, a group or another company is a “controlled company”
and, as such, can elect to be exempt from certain corporate governance requirements, including requirements that:
● |
a
majority of the Board of Directors consist of independent directors; |
|
|
● |
the
board maintain a nominations committee with prescribed duties and a written charter; and |
|
|
● |
the
board maintain a compensation committee with prescribed duties and a written charter and comprised solely of independent directors. |
As
a “controlled company,” we may elect to rely on some or all of these exemptions, and we have, and currently intend
to continue, to take advantage of all of these exemptions. Accordingly, should the interests of Mr. Dabah and his family differ from
those of other stockholders, the other stockholders may not have the same protections afforded to stockholders of companies that are
subject to all of the NASDAQ corporate governance standards. Even if we do not avail ourselves of these exemptions in the future, our
status as a controlled company could make our common stock less attractive to some investors or otherwise harm our stock price. Additionally,
as a “controlled company”, and because we have, and continue to intend to, take advantage of all of the exemptions
under the rules of NASDAQ relating to “controlled companies”, you will not have the same protections afforded to stockholders
of companies that are subject to all of the corporate governance requirements of NASDAQ.
We
rely on our management and if they were to leave our company or not devote sufficient time to our company, our business plan could be
adversely affected.
We
are largely dependent upon the personal efforts and abilities of our existing management, including Ezra Dabah, our Chief Executive Officer,
and Moshe Dabah, our Chief Operating and Technology Officer, each of whom plays an active role in our operations. Moving forward, should
the services of any of such persons, or other management of the Company, be lost for any reason, the Company will incur costs associated
with recruiting replacements and any potential delays in operations which this may cause. If we are unable to replace our executive officers
or other management with a suitably trained alternative individual(s), we may be forced to scale back or curtail our business plan. We
do not currently have any employment agreements or maintain key person life insurance policies on our executive officers. Furthermore,
certain of our executives do not work for the Company on a full-time basis. If such executive officers do not devote sufficient time
towards our business, we may not be able to effectuate our business plan which would have an adverse effect on our financial conditions
and results of operations.
We
do not currently have any employment agreements in place with management.
The
Company has not entered into an employment agreement with Mr. Dabah, our Chief Executive Officer and Chairman, nor any of our other executive
officers. As such, there are no contractual relationships guaranteeing that Mr. Dabah or other management will stay with the Company
and continue its operations. In the event Mr. Dabah or other members of management were to resign or be unable to continue to serve in
their positions with the Company, due to their death, incapacity or disability, the Company may be unable to find another officer to
replace such members of management which may adversely affect the Company’s financial condition and results of operations.
Risks
Relating to our Intellectual Property
We
may be unable to protect our proprietary information and intellectual property, and as a result, our business could be adversely affected.
We
rely to a significant degree on trade secret laws to protect our proprietary information. Our principal trademark assets include the
registered trademarks “kidpik” and our logos and taglines. Our trademarks are valuable assets that support our brand
and consumers’ perception of our services and merchandise. We also hold the rights to the “kidpik.com” internet
domain name and various other related domain names, which are subject to internet regulatory bodies and trademark and other related laws
of each applicable jurisdiction. If we are unable to protect our trademarks or domain names in the United States or in other jurisdictions
in which we may ultimately operate, our brand recognition and reputation would suffer, we would incur significant expense establishing
new brands and our operating results would be adversely impacted. Additionally, breaches of the security of data center systems and infrastructure
or other IT resources could result in the exposure of proprietary information. Additionally, trade secrets may be independently developed
by competitors. The steps we have taken to protect our trade secrets and proprietary information may not prevent unauthorized use or
reverse engineering of trade secrets or proprietary information. Additionally, to the extent that we have not registered the copyrights
in any of our copyrightable works, we will need to register the copyrights before we can file an infringement suit in the United States
(or another jurisdiction), and our remedies in any such infringement suit may be limited.
Effective
protection of our intellectual property rights may require additional filings and applications in the future. However, pending and future
applications may not be approved, and any existing or future patents, trademarks or other intellectual property rights may not provide
sufficient protection for our business as currently conducted or may be challenged by others or invalidated through administrative process
or litigation.
Further,
the laws of certain countries do not protect proprietary rights to the same extent as the laws of the United States and, therefore, in
certain jurisdictions, we may be unable to protect our proprietary rights and trade secrets adequately against unauthorized third-party
copying, infringement or use, which could adversely affect our competitive position.
To
protect or enforce our intellectual property rights, we may initiate litigation against third parties. Any lawsuits that we initiate
could be expensive, take significant time and divert management’s attention from other business concerns. Additionally, we may
unintentionally provoke third parties to assert claims against us. These claims could invalidate or narrow the scope of our own intellectual
property. We may not prevail in any lawsuits that we initiate and the damages or other remedies awarded, if any, may not be commercially
valuable. Accordingly, despite our efforts, we may be unable to prevent third parties from infringing upon or misappropriating our intellectual
property. The occurrence of any of these events may adversely affect our business, financial condition and results of operations.
We
may be subject to claims that we violated intellectual property rights of others, which are extremely costly to defend and could require
us to pay significant damages and limit our ability to operate.
Companies
on the internet and technology industries, and other patent and trademark holders seeking to profit from royalties in connection with
grants of licenses, own large numbers of patents, copyrights, trademarks and trade secrets and frequently enter into litigation based
on allegations of infringement or other violations of intellectual property rights. There may be intellectual property rights held by
others, including issued or pending patents and trademarks, that cover significant aspects of our technologies, content, branding or
business methods. Any intellectual property claims against us, regardless of merit, could be time-consuming and expensive to settle or
litigate and could divert our management’s attention and other resources. These claims also could subject us to significant liability
for damages and could result in our having to stop using technology, content, branding or business methods found to be in violation of
another party’s rights. We might be required or may opt to seek a license for rights to intellectual property held by others, which
may not be available on commercially reasonable terms, or at all. If we cannot license or develop technology, content, branding or business
methods for any allegedly infringing aspect of our business, we may be unable to compete effectively. Even if a license is available,
we could be required to pay significant royalties, which could increase our operating expenses. We may also be required to develop alternative
non-infringing technology, content, branding or business methods, which could require significant effort and expense and be inferior.
Any of these results could harm our operating results.
Risks
Associated with Our Governing Documents and Delaware Law
Our
Second Amended and Restated Certificate of Incorporation provides for indemnification of officers and directors at our expense, which
may result in a major cost to us and hurt the interests of our stockholders because corporate resources may be expended for the benefit
of officers or directors.
Our
Second Amended and Restated Certificate of Incorporation provides for us to indemnify and hold harmless, to the fullest extent permitted
by applicable law, each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that
he or she is or was a director or officer of the Company or, while a director or officer of the Company, is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise
or nonprofit entity, including service with respect to an employee benefit plan. These indemnification obligations may result in a major
cost to us and hurt the interests of our stockholders because corporate resources may be expended for the benefit of officers or directors.
We
have been advised that, in the opinion of the SEC, indemnification for liabilities arising under federal securities laws is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification for liabilities
arising under federal securities laws, other than the payment by us of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceeding, is asserted by a director, officer or controlling person in connection
with our activities, we will (unless in the opinion of our counsel, the matter has been settled by controlling precedent) submit to a
court of appropriate jurisdiction, the question whether indemnification by us is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue. The legal process relating to this matter if it were to occur is likely
to be very costly and may result in us receiving negative publicity, either of which factors is likely to materially reduce the market
and price for our shares.
Our
Second Amended and Restated Certificate of Incorporation contains a specific provision that limits the liability of our directors for
monetary damages to the Company and the Company’s stockholders and requires us, under certain circumstances, to indemnify officers,
directors and employees.
The
limitation of monetary liability against our directors, officers and employees under Delaware law and the existence of indemnification
rights to them may result in substantial expenditures by us and may discourage lawsuits against our directors, officers and employees.
Our
Second Amended and Restated Certificate of Incorporation contains a specific provision that limits the liability of our directors for
monetary damages to the Company and the Company’s stockholders. The foregoing indemnification obligations could result in us incurring
substantial expenditures to cover the cost of settlement or damage awards against our directors and officers, which the Company may be
unable to recoup. These provisions and resultant costs may also discourage us from bringing a lawsuit against our directors and officers
for breaches of their fiduciary duties and may similarly discourage the filing of derivative litigation by our stockholders against our
directors and officers, even though such actions, if successful, might otherwise benefit us and our stockholders.
Our
directors have the right to authorize the issuance of shares of preferred stock.
Our
directors, within the limitations and restrictions contained in our Second Amended and Restated Certificate of Incorporation, subject
to NASDAQ rules and requirements, and without further action by our stockholders, have the authority to issue shares of preferred stock
from time to time in one or more series and to fix the number of shares and the relative rights, conversion rights, voting rights, and
terms of redemption, liquidation preferences and any other preferences, special rights and qualifications of any such series. Such rights
and preferences may be superior to our common stock, provide for voting rights, board appointment rights, priority rights to dividends
or in liquidation, and/or may negatively affect the rights of common stockholders or the value of our common shares. Any issuance of
shares of preferred stock could adversely affect the rights of holders of our common stock.
Anti-takeover
provisions in our Second Amended and Restated Certificate of Incorporation and our Amended and Restated Bylaws, as well as provisions
of Delaware law, might discourage, delay or prevent a change in control of our company or changes in our management and, therefore, depress
the trading price of our common stock.
Our
Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws and Delaware law contain provisions that may
discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions
in which you might otherwise receive a premium for your shares of our common stock. These provisions may also prevent or delay attempts
by our stockholders to replace or remove our management. Our corporate governance documents include provisions:
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a
classified board of directors, as a result of which our board of directors is divided into three classes, with each class serving
for staggered three-year terms; |
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the
removal of directors only for cause; |
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requiring
advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations of candidates
for election to our Board of Directors; |
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authorizing
blank check preferred stock, which could be issued with voting, liquidation, dividend and other rights superior to our common stock;
and |
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limiting
the liability of, and providing indemnification to, our directors and officers. |
As
a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation
Law, which limits the ability of stockholders holding shares representing more than 15% of the voting power of our outstanding voting
stock from engaging in certain business combinations with us. Any provision of our Second Amended and Restated Certificate of Incorporation
or Amended and Restated Bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity
for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are
willing to pay for our common stock.
The
existence of the foregoing provisions and anti-takeover measures could limit the price that investors might be willing to pay in the
future for shares of our common stock. They could also deter potential acquirers of our company, thereby reducing the likelihood that
you could receive a premium for your common stock in an acquisition.
Our
Second Amended and Restated Certificate of Incorporation contains exclusive forum provisions that may discourage lawsuits against us
and our directors and officers.
Our
Second Amended and Restated Certificate of Incorporation provides that unless the corporation consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware, will be the sole and exclusive forum for (i) any derivative action
or proceeding brought on behalf of the Company, (ii) any action asserting a claim for breach of a fiduciary duty owed by any current
or former director, officer, employee or stockholder of the Company to the Company or the Company’s stockholders, (iii) any action
asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, our Second Amended and Restated Certificate
of Incorporation or Bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine.
The
choice of forum provision in our Second Amended and Restated Certificate of Incorporation does not waive our compliance with our obligations
under the federal securities laws and the rules and regulations thereunder. Moreover, the provision does not apply to suits brought to
enforce a duty or liability created by the Exchange Act or by the Securities Act. Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder,
and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts with respect to suits brought to enforce
a duty or liability created by the Securities Act or the rules and regulations thereunder. Accordingly, both state and federal courts
have jurisdiction to entertain claims under the Securities Act.
Notwithstanding
the above, to prevent having to litigate claims in multiple jurisdictions and the threat of inconsistent or contrary rulings by different
courts, among other considerations, our Second Amended and Restated Certificate of Incorporation provides that unless the Company consents,
the U.S. federal district courts will be the exclusive forum for resolving any complaint asserting a cause of action arising under the
Securities Act. However, there is uncertainty as to whether a court would enforce such a provision. While the Delaware courts have determined
that choice of forum provisions of the type included in our Second Amended and Restated Certificate of Incorporation are facially valid,
a stockholder may nevertheless seek to bring a claim in a venue other than those designated in our exclusive forum provision. In such
instance, to the extent applicable, we would expect to vigorously assert the validity and enforceability of our exclusive forum provision.
This may require additional costs associated with resolving such action in other jurisdictions and there can be no assurance that the
provisions will be enforced by a court in those other jurisdictions.
These
exclusive forum provisions may limit the ability of the Company’s stockholders to bring a claim in a judicial forum that such stockholders
find favorable for disputes with the Company or the Company’s directors or officers, which may discourage such lawsuits against
the Company and the Company’s directors and officers. Alternatively, if a court were to find one or more of these exclusive forum
provisions inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings described above,
we may incur additional costs associated with resolving such matters in other jurisdictions or forums, which could materially and adversely
affect our business, financial condition or results of operations.
Risks
Related to Our Common Stock
We
currently have an illiquid and volatile market for our common stock, and the market for our common stock is and may remain illiquid and
volatile in the future.
We
currently have a highly sporadic, illiquid and volatile market for our common stock, which market is anticipated to remain sporadic,
illiquid and volatile in the future. Over the past 12 months our common stock has traded between $0.56 and $5.90 per share, with recent
trading prices between approximately $0.56 and $1.05 per share. The market price of our common stock may continue to be highly volatile
and subject to wide fluctuations. Our financial performance, government regulatory action, tax laws, interest rates, and market conditions
in general could have a significant impact on the future market price of our common stock.
Some
of the factors that could negatively affect or result in fluctuations in the market price of our common stock include:
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actual
or anticipated variations in our quarterly operating results; |
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changes
in market valuations of similar companies; |
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adverse
market reaction to the level of our indebtedness; |
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additions
or departures of key personnel; |
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actions
by stockholders; |
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speculation
in the press or investment community; |
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general
market, economic, and political conditions, including an economic slowdown or dislocation in the global credit markets; |
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our
operating performance and the performance of other similar companies; |
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changes
in accounting principles; |
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passage
of legislation or other regulatory developments that adversely affect us or the e-commerce industry; and |
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the
other risks discussed throughout this Report. |
Our
common stock is listed on the Nasdaq Capital Market under the symbol “PIK.” Our stock price may be impacted by factors that
are unrelated or disproportionate to our operating performance. The stock markets in general have experienced extreme volatility that
has often been unrelated to the operating performance of particular companies. These broad market fluctuations may adversely affect the
trading price of our common stock. Additionally, general economic, political and market conditions, such as recessions, inflation, war,
interest rates or international currency fluctuations may adversely affect the market price of our common stock. Due to the limited volume
of our shares which trade, we believe that our stock prices (bid, ask and closing prices) may not be related to our actual value, and
not reflect the actual value of our common stock. You should exercise caution before making an investment in us.
Additionally,
as a result of the illiquidity of our common stock, investors may not be interested in owning our common stock because of the inability
to acquire or sell a substantial block of our common stock at one time. Such illiquidity could have an adverse effect on the market price
of our common stock. In addition, a stockholder may not be able to borrow funds using our common stock as collateral because lenders
may be unwilling to accept the pledge of securities having such a limited market. An active trading market for our common stock may not
develop or, if one develops, may not be sustained.
In
the past, many companies that have experienced volatility in the market price of their stock have been subject to securities class action
litigation. We may be the target of this type of litigation in the future. Securities litigation against us could result in substantial
costs and divert our management’s attention from other business concerns, which could seriously harm our business.
There
is no guarantee that our common stock will continue to trade on the NASDAQ Capital Market.
As
a condition to consummating our IPO, our common stock was required to be listed on NASDAQ and our common stock is currently listed on
NASDAQ under the symbol “PIK”. There is no guarantee that we will be able to maintain our listing on NASDAQ for any
period of time. Among the conditions required for continued listing on Nasdaq, NASDAQ requires us to maintain at least $2.5 million in
stockholders’ equity, $35 million in market value of listed securities, or $500,000 in net income over the prior two years or two
of the prior three years, to have a majority of independent directors (subject to certain “controlled company” exemptions,
which we currently plan to take advantage of, as discussed in greater detail above under “Ezra Dabah, our Chief Executive Officer
and Chairman and his family, own greater than 50% of our outstanding shares of common stock, which will cause us to be deemed a “controlled
company” under the rules of Nasdaq”), to comply with certain audit committee requirements, and to maintain a stock price
over $1.00 per share. Our stockholders’ equity may not remain above NASDAQ’s $2.5 million minimum, we may not generate over
$500,000 of yearly net income moving forward, we may not maintain $35 million in market value of listed securities, we may not be able
to maintain independent directors (to the extent required), and we may not be able to maintain a stock price over $1.00 per share (for
example, recently our common stock price has traded below $1.00 per share for a prolonged period of time). NASDAQ’s determination
that we fail to meet the continued listing standards of NASDAQ may result in our securities being delisted from NASDAQ.
The
absence of such a listing may adversely affect the acceptance of our common stock as currency or the value accorded by other parties.
Further, if we are delisted, we would also incur additional costs under state blue sky laws in connection with any sales of our securities.
These requirements could severely limit the market liquidity of our common stock and the ability of our stockholders to sell our common
stock in the secondary market. If our common stock is delisted by NASDAQ, our common stock may be eligible to trade on an over-the-counter
quotation system, such as the OTCQB Market or the Pink Open Market, where an investor may find it more difficult to sell our securities
or obtain accurate quotations as to the market value of our securities. In the event our common stock is delisted from NASDAQ in the
future, we may not be able to list our common stock or warrants on another national securities exchange or obtain quotation on an over-the
counter quotation system.
On March
22, 2023, we received written notice (the “Notification Letter”) from the Listing Qualifications Department of The
Nasdaq Stock Market LLC (“Nasdaq”) notifying the Company that it is not in compliance with the minimum bid price requirements
set forth in Nasdaq Listing Rule 5550(a)(2) for continued listing on The Nasdaq Capital Market. Nasdaq Listing Rule 5550(a)(2) requires
listed securities to maintain a minimum bid price of $1.00 per share, and Listing Rule 5810(c)(3)(A) provides that a failure to meet the
minimum bid price requirement exists if the deficiency continues for a period of thirty (30) consecutive business days. Based on the closing
bid price of the Company’s common stock for the thirty (30) consecutive business days from February 7, 2023 to March 21, 2023, the
Company no longer meets the minimum bid price requirement.
The Notification
Letter does not impact the Company’s listing of its common stock on the Nasdaq Capital Market at this time. The Notification Letter
states that the Company has 180 calendar days or until September 18, 2023, to regain compliance with Nasdaq Listing Rule 5550(a)(2). To
regain compliance, the bid price of the Company’s common stock must have a closing bid price of at least $1.00 per share for a minimum
of 10 consecutive business days. If the Company does not regain compliance by September 18, 2023, an additional 180 days may be granted
to regain compliance, so long as the Company meets The Nasdaq Capital Market initial listing criteria (except for the bid price requirement)
and notifies Nasdaq in writing of its intention to cure the deficiency during the second compliance period by effecting a reverse stock
split, if necessary. If the Company does not qualify for the second compliance period, fails to regain compliance during the second 180-day
period, or if it appears to Nasdaq that the Company will not be able to cure the deficiency, the Company’s common stock will be
subject to delisting, at which point the Company would have an opportunity to appeal the delisting determination to a Hearings Panel.
A delisting of our common stock from the Exchange could adversely affect our business, financial condition and results
of operations and our ability to attract new investors, reduce the price at which our common stock trades, decrease, investors’
ability to make transactions in our common stock, decrease the liquidity of our outstanding shares, increase the transaction costs inherent
in trading such shares, and reduce our flexibility to raise additional capital with overall negative effects for our stockholders.
If
securities or industry analysts do not publish research or reports about us, or if they adversely change their recommendations regarding
our common stock, then our stock price and trading volume could decline.
The
trading market for our common stock is influenced by the research and reports that industry or securities analysts publish about us,
our industry and our market. If analysts do not elect to cover us and publish research or reports about us, the market for our common
stock could be severely limited and our stock price could be adversely affected. As a small-cap company, we are more likely than our
larger competitors to lack coverage from securities analysts. In addition, even if we receive analyst coverage, if one or more analysts
ceases coverage of us or fails to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could
cause our stock price or trading volume to decline. If one or more analysts who elect to cover us issue negative reports or adversely
change their recommendations regarding our common stock, our stock price could decline.
Future
sales of our common stock, other securities convertible into our common stock, or preferred stock could cause the market value of our
common stock to decline and could result in dilution of your shares.
Our
Board of Directors is authorized to cause us to issue additional shares of our common stock or to raise capital through the creation
and issuance of preferred stock, other debt securities convertible into common stock, options, warrants and other rights, on terms and
for consideration as our Board of Directors in its sole discretion may determine. Sales of substantial amounts of our common stock or
of preferred stock could cause the market price of our common stock to decrease significantly. We cannot predict the effect, if any,
of future sales of our common stock, or the availability of our common stock for future sales, on the value of our common stock. Sales
of substantial amounts of our common stock by large stockholders, or the perception that such sales could occur, may adversely affect
the market price of our common stock.
We
have no intention of declaring dividends in the foreseeable future.
The
decision to pay cash dividends on our common stock rests with our Board of Directors and will depend on our earnings, unencumbered cash,
capital requirements and financial condition. We do not anticipate declaring any dividends in the foreseeable future, as we intend to
use any excess cash to fund our operations. Investors in our common stock should not expect to receive dividend income on their investment,
and investors will be dependent on the appreciation of our common stock to earn a return on their investment.
Risks
Relating to The JOBS Act
The
Jumpstart Our Business Startups (JOBS) Act allows us to postpone the date by which we must comply with certain laws and regulations and
to reduce the amount of information provided in reports filed with the SEC. We cannot be certain if the reduced disclosure requirements
applicable to “emerging growth companies” will make our common stock less attractive to investors.
We
are and we will remain an “emerging growth company” until the earliest to occur of (i) the last day of the fiscal
year during which our total annual revenues equal or exceed $1.235 billion (subject to adjustment for inflation), (ii) the last day of
the end of our 2026 fiscal year (five years from our first public offering), (iii) the date on which we have, during the previous three-year
period, issued more than $1 billion in non-convertible debt, or (iv) the date on which we are deemed a “large accelerated filer”
(with at least $700 million in public float) under the Exchange Act. For so long as we remain an “emerging growth company”
as defined in the JOBS Act, we may take advantage of certain exemptions from various reporting requirements that are applicable to other
public companies that are not “emerging growth companies” as described in further detail in the risk factors below.
We cannot predict if investors will find our common stock less attractive because we will rely on some or all of these exemptions. If
some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and
our stock price may be more volatile. If we avail ourselves of certain exemptions from various reporting requirements, as is currently
our plan, our reduced disclosure may make it more difficult for investors and securities analysts to evaluate us and may result in less
investor confidence.
Our
election not to opt out of the JOBS Act extended accounting transition period may not make our financial statements easily comparable
to other companies.
Pursuant
to the JOBS Act, as an “emerging growth company”, we can elect to opt out of the extended transition period for any
new or revised accounting standards that may be issued by the Public Company Accounting Oversight Board (PCAOB) or the SEC. Which means
that when a standard is issued or revised and it has different application dates for public or private companies, we, as an “emerging
growth company”, can adopt the standard for the private company. This may make a comparison of our financial statements with
any other public company which is not either an “emerging growth company” nor an “emerging growth company”
which has opted out of using the extended transition period, more difficult or impossible as possible different or revised standards
may be used.
The
JOBS Act also allows us to postpone the date by which we must comply with certain laws and regulations intended to protect investors
and to reduce the amount of information provided in reports filed with the SEC.
The
JOBS Act is intended to reduce the regulatory burden on “emerging growth companies”. The Company meets the definition
of an “emerging growth company” and so long as it qualifies as an “emerging growth company,” it
will, among other things:
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be
exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act requiring that its independent registered public accounting
firm provide an attestation report on the effectiveness of its internal control over financial reporting; |
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be
exempt from the “say on pay” provisions (requiring a non-binding stockholder vote to approve compensation of certain
executive officers) and the “say on golden parachute” provisions (requiring a non-binding stockholder vote to approve
golden parachute arrangements for certain executive officers in connection with mergers and certain other business combinations)
of The Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and certain disclosure requirements of the
Dodd-Frank Act relating to compensation of Chief Executive Officers; |
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be
permitted to omit the detailed compensation discussion and analysis from proxy statements and reports filed under the Exchange Act
and instead provide a reduced level of disclosure concerning executive compensation; and |
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be
exempt from any rules that may be adopted by the PCAOB requiring mandatory audit firm rotation or a supplement to the auditor’s
report on the financial statements. |
The
Company currently intends to take advantage of all of the reduced regulatory and reporting requirements that will be available to it
so long as it qualifies as an “emerging growth company”. The Company has elected not to opt out of the extension of
time to comply with new or revised financial accounting standards available under Section 102(b)(1) of the JOBS Act. Among other things,
this means that the Company’s independent registered public accounting firm will not be required to provide an attestation report
on the effectiveness of the Company’s internal control over financial reporting so long as it qualifies as an “emerging
growth company”, which may increase the risk that weaknesses or deficiencies in the internal control over financial reporting
go undetected. Likewise, so long as it qualifies as an “emerging growth company”, the Company may elect not to provide
certain information, including certain financial information and certain information regarding compensation of executive officers, which
it would otherwise have been required to provide in filings with the SEC, which may make it more difficult for investors and securities
analysts to evaluate the Company. As a result, investor confidence in the Company and the market price of its common stock may be adversely
affected.
Notwithstanding
the above, we are also currently a “smaller reporting company”, meaning that we are not an investment company, an
asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company and have a public float
of less than $250 million or less than $100 million in annual revenues and a public float of less than $700 million during the most recently
completed fiscal year. In the event that we are still considered a “smaller reporting company”, at such time are we
cease being an “emerging growth company”, the disclosures we will be required to provide in our SEC filings will increase,
but will still be less than it would be if we were not considered either an “emerging growth company” or a “smaller
reporting company”. Specifically, similar to “emerging growth companies”, “smaller reporting companies”
are able to provide simplified executive compensation disclosures in their filings; are exempt from the provisions of Section 404(b)
of the Sarbanes-Oxley Act requiring that independent registered public accounting firms provide an attestation report on the effectiveness
of internal control over financial reporting; and have certain other decreased disclosure obligations in their SEC filings, including,
among other things, only being required to provide two years of audited financial statements in annual reports. Decreased disclosures
in our SEC filings due to our status as an “emerging growth company” or “smaller reporting company”
may make it harder for investors to analyze the Company’s results of operations and financial prospects.
General
Risk Factors
Our
estimates of market opportunity and forecasts of market growth may prove to be inaccurate, and even if the market in which we compete
achieves the forecasted growth, our business could fail to grow at similar rates, if at all.
Market
opportunity estimates and growth forecasts, including those we have generated ourselves, are subject to significant uncertainty and are
based on assumptions and estimates that may not prove to be accurate. The variables that go into the calculation of our market opportunity
are subject to change over time, and there is no guarantee that any particular number or percentage of individuals covered by our market
opportunity estimates will purchase our products at all or generate any particular level of revenue for us. Even if the market in which
we compete meets the size estimates and growth forecasts, our business could fail to grow for a variety of reasons outside of our control,
including competition in our industry. If any of these risks materialize, it could harm our business and prospects.
Higher
labor costs due to statutory and regulatory changes could materially adversely affect our business, financial condition and operating
results.
Various
federal and state labor laws, including certain laws and regulations enacted in response to COVID-19, govern our relationships with our
employees and affect operating costs. These laws include employee classifications as exempt or non-exempt, minimum wage requirements,
unemployment tax rates, workers’ compensation rates, overtime, family leave, workplace health and safety standards, payroll taxes,
citizenship requirements and other wage and benefit requirements for employees classified as non-exempt. As our employees are paid at
rates set at, or above but related to, the applicable minimum wage, further increases in the minimum wage could increase our labor costs.
Significant additional government regulations could materially adversely affect our business, financial condition and operating results.
We
have a short operating history in an evolving industry and, as a result, our past results may not be indicative of future operating performance.
We
have a short operating history in a rapidly evolving industry that may not develop in a manner favorable to our business. Our relatively
short operating history makes it difficult to assess our future performance. You should consider our business and prospects in light
of the risks and difficulties we may encounter.
Our
future success will depend in large part upon our ability to, among other things:
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cost-effectively
acquire new members and customers and engage with existing members and customers; |
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overcome
the impacts of rising interest rates and high inflation, possible economic slowdowns and recessions; |
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increase
our market share; |
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increase
consumer awareness of our brand and maintain our reputation; |
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anticipate
and respond to macroeconomic changes; |
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successfully
expand our offering and geographic reach; |
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anticipate
and respond to changing style trends and consumer preferences; |
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manage
our inventory effectively; |
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compete
effectively; |
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avoid
interruptions in our business from information technology downtime, cybersecurity breaches, or labor stoppages; |
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effectively
manage our growth; |
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continue
to enhance our personalization capabilities; |
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hire,
integrate, and retain talented people at all levels of our organization; |
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maintain
the quality of our technology infrastructure; |
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develop
new features to enhance the client experience; and |
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retain
our existing product vendors and attract new vendors. |
If
we fail to address the risks and difficulties that we face, including those associated with the challenges listed above as well as those
described elsewhere in this “Risk Factors” section, our business and our operating results will be adversely affected.
If
we are unable to maintain effective internal control over financial reporting, investors may lose confidence in the accuracy of our
financial reports.
As
a public company, we are required to maintain internal control over financial reporting and to report any material weaknesses in such
internal control. Section 404 of the Sarbanes-Oxley Act requires that we evaluate and determine the effectiveness of our internal control
over financial reporting. Although our management has determined that our internal control over financial reporting were effective as
of December 31, 2022, we cannot assure you that we will not identify a material weakness in our internal control in the future.
If
we have a material weakness in our internal control over financial reporting in the future, we may not detect errors on a timely basis.
If we have difficulty implementing and maintaining effective internal control over financial reporting at the businesses we have acquired
or that we may in the future acquire, or if we identify a material weakness in our internal control over financial reporting in the
future, it could harm our operating results, adversely affect our reputation, cause our stock price to decline, or result in inaccurate
financial reporting or material misstatements in our annual or interim financial statements. We could be required to implement expensive
and time-consuming remedial measures. Further, if there are material weaknesses or failures in our ability to meet any of the requirements
related to the maintenance and reporting of our internal control, such as Section 404 of the Sarbanes-Oxley Act, investors may lose
confidence in the accuracy and completeness of our financial reports and that could cause the price of our common stock to decline. We
could become subject to investigations by Nasdaq, the SEC or other regulatory authorities, which could require additional management
attention and which could adversely affect our business.
In
addition, our internal control over financial reporting will not prevent or detect all errors and fraud, and individuals, including
employees and contractors, could circumvent such control. Because of the inherent limitations in all control systems, no evaluation
of control can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances
of fraud will be detected.
Failure
to adequately manage our planned aggressive growth strategy may harm our business or increase our risk of failure.
For
the foreseeable future, we intend to pursue an aggressive growth strategy for the expansion of our operations through increased marketing.
Our ability to rapidly expand our operations will depend upon many factors, including our ability to work in a regulated environment,
establish and maintain strategic relationships with suppliers, and obtain adequate capital resources on acceptable terms. Any restrictions
on our ability to expand may have a materially adverse effect on our business, results of operations, and financial condition. Accordingly,
we may be unable to achieve our targets for sales growth, and our operations may not be successful or achieve anticipated operating results.
Additionally,
our growth may place a significant strain on our managerial, administrative, operational, and financial resources and our infrastructure.
Our future success will depend, in part, upon the ability of our senior management to manage growth effectively. This will require us
to, among other things:
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implement
additional management information systems; |
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further
develop our operating, administrative, legal, financial, and accounting systems and controls; |
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hire
additional personnel; |
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develop
additional levels of management within our company; |
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locate
additional office space; and |
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maintain
close coordination among our operations, legal, finance, sales and marketing, and client service and support personnel. |
As
a result, we may lack the resources to deploy our services on a timely and cost-effective basis. Failure to accomplish any of these requirements
could impair our ability to deliver services in a timely fashion or attract and retain new members and customers.
If
we make any acquisitions, they may disrupt or have a negative impact on our business.
If
we make acquisitions in the future, we could have difficulty integrating the acquired company’s assets, personnel and operations
with our own. We do not anticipate that any acquisitions or mergers we may enter into in the future would result in a change of control
of the Company. In addition, the key personnel of the acquired business may not be willing to work for us. We cannot predict the effect
expansion may have on our core business. Regardless of whether we are successful in making an acquisition, the negotiations could disrupt
our ongoing business, distract our management and employees and increase our expenses. In addition to the risks described above, acquisitions
are accompanied by a number of inherent risks, including, without limitation, the following:
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the
difficulty of integrating acquired products, services or operations; |
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the
potential disruption of the ongoing businesses and distraction of our management and the management of acquired companies; |
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difficulties
in maintaining uniform standards, controls, procedures and policies; |
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the
potential impairment of relationships with employees and members and customers as a result of any integration of new management personnel; |
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the
potential inability or failure to achieve additional sales and enhance our customer base through cross-marketing of the products
to new and existing members and customers; |
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the
effect of any government regulations which relate to the business acquired; |
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potential
unknown liabilities associated with acquired businesses or product lines, or the need to spend significant amounts to retool, reposition
or modify the marketing and sales of acquired products or operations, or the defense of any litigation, whether or not successful,
resulting from actions of the acquired company prior to our acquisition; and |
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potential
expenses under the labor, environmental and other laws of various jurisdictions. |
Our
business could be severely impaired if and to the extent that we are unable to succeed in addressing any of these risks or other problems
encountered in connection with an acquisition, many of which cannot be presently identified. These risks and problems could disrupt our
ongoing business, distract our management and employees, increase our expenses and adversely affect our results of operations.
We
may apply working capital and future funding to uses that ultimately do not improve our operating results or increase the value of our
securities.
In
general, we have complete discretion over the use of our working capital and any new investment capital we may obtain in the future.
Because of the number and variety of factors that could determine our use of funds, our ultimate expenditure of funds (and their uses)
may vary substantially from our current intended operating plan for such funds. Our management has broad discretion to use any or all
of our available capital reserves. Our capital could be applied in ways that do not improve our operating results or otherwise increase
the value of a stockholder’s investment.
We
may require additional capital to support business growth, and this capital might not be available or may be available only by diluting
existing stockholders.
We
intend to continue making investments to support our business growth and may require additional funds to support this growth and respond
to business challenges, including the need to develop our services, expand our inventory, enhance our operating infrastructure, and expand
the markets in which we operate. Accordingly, we may need to engage in equity or debt financings to secure additional funds. If we raise
additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant
dilution, and any new equity securities we issue could have rights, preferences, and privileges superior to those of holders of our common
stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital-raising activities
and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business
opportunities. In addition, we may not be able to obtain additional financing on terms favorable to us, if at all. If we are unable to
obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to support our business
growth and to respond to business challenges could be significantly limited, and our business and prospects could fail or be adversely
affected.
The
sale of shares by our directors and officers may adversely affect the market price for our shares.
Sales
of significant amounts of shares held by our officers and directors, or the prospect of these sales, could adversely affect the market
price of our common stock. Management’s stock ownership may discourage a potential acquirer from making a tender offer or otherwise
attempting to obtain control of us, which in turn could reduce our stock price or prevent our stockholders from realizing a premium over
our stock price.
Stockholders
may be diluted significantly through our efforts to obtain financing and satisfy obligations through the issuance of additional shares
of our common stock.
Wherever
possible, our Board of Directors will attempt to use non-cash consideration to satisfy obligations. In many instances, we believe that
the non-cash consideration will consist of restricted shares of our common stock or where shares are to be issued to our officers, directors
and applicable consultants. Our Board of Directors has authority, without action or vote of the stockholders, but subject to NASDAQ rules
and regulations (which generally require stockholder approval for any transactions which would result in the issuance of more than 20%
of our then outstanding shares of common stock or voting rights representing over 20% of our then outstanding shares of stock), to issue
all or part of the authorized but unissued shares of common stock. In addition, we may attempt to raise capital by selling shares of
our common stock, possibly at a discount to market. These actions will result in dilution of the ownership interests of existing stockholders,
which may further dilute common stock book value, and that dilution may be material. Such issuances may also serve to enhance existing
management’s ability to maintain control of the Company because the shares may be issued to parties or entities committed to supporting
existing management.
Claims,
litigation, government investigations, and other proceedings may adversely affect our business and results of operations.
From
time to time, we are subject to actual and threatened claims and we may in the future be subject to litigation, reviews, investigations,
and other proceedings, including proceedings relating to products offered by us and by third parties, and other matters. Any of these
types of proceedings may have an adverse effect on us because of legal costs, disruption of our operations, diversion of management resources,
negative publicity, and other factors. The outcomes of these matters are inherently unpredictable and subject to significant uncertainties.
Determining legal reserves and possible losses from such matters involves judgment and may not reflect the full range of uncertainties
and unpredictable outcomes. Until the final resolution of such matters, we may be exposed to losses in excess of the amount recorded,
and such amounts could be material. Should any of our estimates and assumptions change or prove to have been incorrect, it could have
a material effect on our business, financial position, results of operations, or cash flows. In addition, it is possible that a resolution
of one or more such proceedings, including as a result of a settlement, could require us to make substantial future payments, prevent
us from offering certain products or services, require us to change our business practices in a manner materially adverse to our business,
requiring development of non-infringing or otherwise altered products or technologies, damaging our reputation, or otherwise having a
material effect on our operations.
We
may incur additional indebtedness in the future which could reduce our financial flexibility, increase interest expense and adversely
impact our operations and our costs.
We
may incur significant amounts of indebtedness in the future. Our level of indebtedness could affect our operations in several ways, including
the following:
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a
significant portion of our cash flows is required to be used to service our indebtedness; |
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a
high level of debt increases our vulnerability to general adverse economic and industry conditions; |
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covenants
contained in the agreements governing our outstanding indebtedness limit our ability to borrow additional funds and provide additional
security interests, dispose of assets, pay dividends and make certain investments; |
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a
high level of debt may place us at a competitive disadvantage compared to our competitors that are less leveraged and, therefore,
may be able to take advantage of opportunities that our indebtedness may prevent us from pursuing; and |
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debt
covenants may affect our flexibility in planning for, and reacting to, changes in the economy and in our industry. |
A
high level of indebtedness increases the risk that we may default on our debt obligations. We may not be able to generate sufficient
cash flows to pay the principal or interest on our debt, and future working capital, borrowings or equity financing may not be available
to pay or refinance such debt. If we do not have sufficient funds and are otherwise unable to arrange financing, we may have to sell
significant assets or have a portion of our assets foreclosed upon which could have a material adverse effect on our business, financial
condition and results of operations.
We
may fail to meet our publicly announced guidance or other expectations about our business, which could cause our stock price to decline.
We
may provide, from time-to-time, guidance regarding our expected financial and business performance. Correctly identifying key factors
affecting business conditions and predicting future events is inherently an uncertain process, and our guidance may not ultimately be
accurate and has in the past been inaccurate in certain respects, such as the timing of acquisitions, revenue projections and project
completions. Our guidance is based on certain assumptions such as those relating to anticipated sales volumes (which generally are not
linear throughout a given period), average sales prices, supplier and commodity costs and planned cost reductions. If our guidance varies
from actual results due to our assumptions not being met or the impact on our financial performance that could occur as a result of various
risks and uncertainties, the market value of our common stock could decline significantly.
We
may be adversely affected by climate change or by legal, regulatory or market responses to such change.
The
long-term effects of climate change are difficult to predict; however, such effects may be widespread. Impacts from climate change may
include physical risks (such as rising sea levels or frequency and severity of extreme weather conditions), social and human effects
(such as population dislocations or harm to health and well-being), compliance costs and transition risks (such as regulatory or technology
changes) and other adverse effects. The effects of climate change could increase the cost of certain products, commodities and energy
(including utilities), which in turn may impact our ability to procure goods or services required for the operation of our business.
Climate change could also lead to increased costs as a result of physical damage to or destruction of our facilities, loss of inventory,
and business interruption due to weather events that may be attributable to climate change. These events and impacts could materially
adversely affect our business operations, financial position or results of operation.
We
might be adversely impacted by changes in accounting standards.
Our
consolidated financial statements are subject to the application of U.S. GAAP, which periodically is revised or reinterpreted. From time
to time, we are required to adopt new or revised accounting standards issued by recognized authoritative bodies, including the Financial
Accounting Standards Board (“FASB”) and the SEC. It is possible that future accounting standards may require changes
to the accounting treatment in our consolidated financial statements and may require us to make significant changes to our financial
systems. Such changes might have a materially adverse impact on our financial position or results of operations.
Our
reputation and/or business could be negatively impacted by environmental, social and governance (“ESG”) matters and/or
our reporting of such matters.
There
is an increasing focus from regulators, certain investors, and other stakeholders concerning ESG matters, both in the United States and
internationally. Any future ESG initiatives, goals, or commitments we undertake could be difficult to achieve and costly to implement.
We could fail to achieve, or be perceived to fail to achieve, our future ESG-related initiatives, goals, or commitments. In addition,
we could be criticized for the timing, scope or nature, or lack of initiatives, goals, or commitments. To the extent that our required
and voluntary disclosures about ESG matters increase, we could be criticized for the accuracy, adequacy, or completeness of such disclosures.
Our actual or perceived failure to set forth or achieve ESG-related initiatives, goals, or commitments could negatively impact our reputation,
result in ESG-focused investors not purchasing and holding our stock, or otherwise materially harm our business.
*
* * * *
For
all of the foregoing reasons and others set forth herein, an investment in our securities involves a high degree of risk.