SEC Comment Letter for Red Cat Holdings, Inc. (RCAT) (CIK 0000748268) (RCAT) — Dec 28, 2015
Red Cat Holdings, Inc. (RCAT) (CIK 0000748268)
Date: Dec. 28, 2015 · CIK: 0000748268 · Accession: 0000000000-15-059570
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File numbers found in text: 000-31587
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Mail Stop 4628
December 2 4, 2015
Mr. Jonathan R. Read
Chief Executive Officer
EnergyTek Corp.
201 S. Laurel
Luilng, Texas 78648
Re: EnergyTek Corp
Form 10-K for Fiscal Year ended December 31, 2014
Filed March 31, 2015
File No. 000-31587
Dear Mr. Read :
We have limited our review of your filing to the financial statements and related
disclosures and have the following comments. In some of our comments, we may ask you to
provide us with information so we may better understand your disclosure.
Please respond to these comments within ten busine ss days by providing the requested
information or advis e us as soon as possible when you will respond. If you do not believe our
comments app ly to your facts and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have additional comments.
Form 10 -K for Fiscal Year ended December 31, 2014
Financial Statements
Note 2 – Significant A ccounting Policies, page F -7
1. We note various disclosures amongst the notes to your financial statements and a
summary of accounting policies under this heading along with the representation that
these accounting policies conform to U.S. generally accepted accounting principles.
However, we have the following observations based on your disclosures which appear
contrary to the guidance as noted. Tell us with regard to each point how you applied the
accounting standard or the rea sons you believe it does not apply to you, including any
details necessary to understand the nature and extent of any support for your view.
Jonathan R. Read
EnergyTek Corp.
December 2 4, 2015
Page 2
(a) In Note 1 you explain that although you sold Pipeline Nutrition U.S.A. Inc. to a
related party on February 13, 2014 you accounted for this disposition as if it had
occurred on December 31, 2013, and have revised your financial statements to
“…reflect this event for both periods presented,” referring to your 2013 and 2014
fiscal years. However, you have similar disclosure on page 19 of your prior annual
report stating that the disposition occurred on December 30, 2013 and that you
restated your financial st atements for the two years presented in that report, as if the
disposition occurred at the beginning of 2012. We understand that although Pipeline
Nutrition U.S.A. generated $20,696 in revenues during 2012, you restated the 2012
financial statements that are included for comparative purposes in your 2013 annual
report to eliminate these sales and related costs. Based on the foregoing, it appears
that you have not complied with the following guidance.
FASB ASC 360 -10-40-5 requires gain or loss that resu lts from the sale of a long -lived
asset group to be recognized at the date of sale. Although your disclosure states that
the sale was completed in 2014 you report income and debt forgiveness arising from
the sale of this subsidiary of $139,050 and $46,871 in 2013.
FASB ASC 205 -20-45 requires the results of operations of an entity sold to be
reported for current and prior periods as discontinued operations. However, your
restated financial statements appear to exclude prior activity except for the sale.
(b) We note that your diluted earnings per share for 2014 includes the antidilutive effect
of the potential common shares that you tabulate in Note 5. Given that you have
reported a loss from continuing operations for the year ended December 31, 2014, it
appe ars you have not complied with the following guidance.
FASB ASC 260 -10-45-17 prohibits the inclusion of potential common shares in any
diluted per share amount when reporting a loss from continuing operations.
(c) We note your disclosure on page F -12 stating that on May 21, 2014, you replaced
900 shares of outstanding Series A Preferred Stock with 900 shares of Series C
Preferred Stock also clarifying that each share remains convertible into 100,000
shares of common stock and indicating holders of the Class C Preferred Shares will
vote on par with holders of the common shares. You explain that in no event would
the conversion arrangement be subject to any adjustment from a reverse split of the
common stock prior to 2016. As you later report that a 1 for 150 reverse split
occurred on July 23, 2014, it appears the number of shares into which the Series C
Preferred Shares are convertible increased proportionately from 35% to 99% of
outstanding common shares assuming conversion.
Your disclosures do not address the implications of conducting a reverse stock split
while holding the conversion features constant. In addition, your disclosures do not
mention a series of modifications to the purchase consideration which appear to be
Jonathan R. Read
EnergyTek Corp.
December 2 4, 2015
Page 3
material and without proper accou nting, based on details that reside in the exhibits
filed with your Form 8 -K on April 4, 2014, Form 10 -Q on May 2, 2014, and Form 8 -
K on May 28, 2014. For example, the March 31, 2014 purchase agreement states that
90 Series A Preferred Shares having a con version provision based on 1% of fully
diluted outstanding common shares, were initially issued as consideration, yet you
amended this preferred stock designation later, on April 29, 2014, to increase
authorized shares from 90 to 900, and to change the con version provision to
1:100,000 and although you have not filed an amendment to the purchase agreement,
other documents indicate that 810 additional Series A Preferred Shares were issued to
the initial holders. We also note that voting provisions initially and upon the first
amendment remained on an as -if converted basis, with the result multiplied by 100.
However, with the May 20, 2014 issua nce of Series C Preferred Share s, you changed
the voting provisions to an as -if converted basis multiplied by 60, which is also
inconsistent with your current disclosure. Based on the foregoing, it appears you
have not complied with the following guidance.
FASB ASC 805 -10-50-6 requires disclosure when the initial accountin g for a
business combination is incomplete, including the reasons why the accounting is
incomplete, items of consideration for which the accounting is incomplete, and the
nature and amount of measurement period adjustments.
FASB ASC 505 -50-50 and FASB AS C 718 -10-50 require disclosures regarding
stock -based arrangements, including the nature and terms and potential effects on
shareholders, also the accounting and method of estimating fair value.
We urge all persons who are responsible for the accuracy an d adequacy of the disclosure
in the filing to be certain that the filing includes the information the Securities Exchange Act of
1934 and all applicable Exchange Act rules require. Since the company and its management are
in possession of all facts relati ng to a company’s disclosure, they are responsible for the accuracy
and adequacy of the disclosures they have made.
In responding to our comments, please provide a written statement from the company
acknowledging that:
the company is responsible for the adequacy and accuracy of the disclosure in the filing;
staff comments or changes to disclosure in response to staff comments do not foreclose
the Commission from taking any action with respect to the filing; and
the company may not assert staff comme nts as a defense in any proceeding initiated by
the Commission or any person under the federal securities laws of the United States.
Jonathan R. Read
EnergyTek Corp.
December 2 4, 2015
Page 4
You may contact John Cannarella, Staff Accountant, at (202) 551 -3337 if you have
questions regarding our comments and rela ted matters. Please contact me at (202) 551 -3686
with any other questions.
Sincerely,
/s/ Karl Hiller
Karl Hiller
Branch Chief
Office of Natural Resources