Annual report pursuant to Section 13 and 15(d)

CONTINGENT CONSIDERATION LIABILITY

v3.7.0.1
CONTINGENT CONSIDERATION LIABILITY
12 Months Ended
Dec. 31, 2016
Notes to Financial Statements  
Note 10. CONTINGENT CONSIDERATION LIABILITY

NOTE 10 – CONTINGENT CONSIDERATION

 

The Company accounts for “contingent consideration” according to FASB ASC 805, “Business Combinations” (“FASB ASC 805”). Contingent consideration typically represents the acquirer’s obligation to transfer additional assets or equity interests to the former owners of the acquiree if specified future events occur or conditions are met. FASB ASC 805 requires that contingent consideration be recognized at the acquisition-date fair value as part of the consideration transferred in the transaction. FASB ASC 805 uses the fair value definition in Fair Value Measurements, which defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. As defined in FASB ASC 805, contingent consideration is (i) an obligation of the acquirer to transfer additional assets or equity interests to the former owners of an acquiree as part of the exchange for control of the acquire, if specified future events occur or conditions are met or (ii) the right of the acquirer to the return of previously transferred consideration, if specified conditions are met.

 

Therapeutics Medical

 

In the acquisition of assets from Therapeutics Medical, the Company may be required to issue an additional Convertible Promissory Note to the seller based on the following calculation (the “Therapeutics Contingent Consideration”):

 

(i) if the total revenue (“Total Revenue”) generated by the assets for the period beginning on April 1, 2016 and ending on March 31, 2017 (the “Applicable Period”) is greater than $1.6 million but less than $3.2 million, the Company will issue to the Seller an additional Convertible Promissory Note in the principal amount equal to 50% of the Total Revenue in excess of $1.6 million; or

 

(ii) if the Total Revenue generated by the assets for the Applicable Period is greater than $3.2 million, the Company will issue to the Seller an additional Convertible Promissory Note in the principal amount equal to the sum of: (a) $800,000 (which equals 50% of the Total Revenue in excess of $1.6 million up to $3.2 million), plus (b) 25% of the Total Revenue for the Applicable Period in excess of $3.2 million.

 

The Company valued the Therapeutics Contingent Consideration based on an analysis using a cash flow model to determine the expected contingent consideration payment. The model determined that the aggregate expected contingent consideration liability was an immaterial amount ($4,000) with an associated immaterial present value of the contingent consideration liability of $3,200. At the time of purchase, Therapeutics Medical had gone out of business, and the assets acquired were selected from a lot at auction. As such, the Company did not recognize a contingent consideration liability associated with the Therapeutics Contingent Consideration because management’s best estimates resulted in an extremely low, in fact near zero likelihood, of the revenue targets being achieved.

 

In determining the likelihood of payouts related to the Therapeutics Contingent Consideration, the probabilities for various scenarios (e.g., a greater than 98% probability that the minimum amount of Therapeutics Contingent Consideration will not be payable), as well as the discount rate used in the Company’s calculations, were based on internal projections, all of which were vetted by the Company’s senior management.

 

The Company calculated the Therapeutics Contingent Consideration based upon the following formula:

 

One-Year Anniversary Date Revenue  

 

Probability

  Revenue-Based Payment   Probability-Weighted Amounts
                   
$3,200,000   0.00%   $800,000     $  
                   
$2,000,000   0.50%   $200,000       1,000  
                   
$1,599,999   99.50%   $           –        
                   
    Fair Value of Expected Earn-out Payment       1,000  
        Discount Rate       25%  
        Payments       $0  
Present Value Factor at 20% Discount Rate for 12 Months        0.9457  
                   
    Present Value of Contingent Consideration     $ $946  

 

As of December 31, 2016, based on revenues achieved throughout the year, the probability of a contingent payment is near zero and as such, no amount will be due.

 

Black Oak Gallery

 

In the acquisition of Black Oak, the Company valued the Holdback Consideration and the Performance-Based Cash Consideration (collectively, the “Black Oak Contingent Consideration”), based on an analysis using a cash flow model to determine the expected contingent consideration payment, which model determined that the aggregate expected contingent consideration liability was $15,305,463 and the present value of the contingent consideration liability was $12,754,553. Accordingly, the Company recognized at April 1, 2016, the closing date of the Black Oak merger, a $12,754,553 contingent consideration liability associated with the Black Oak Contingent Consideration paid pursuant to the Merger Agreement.

 

In determining the likelihood of payouts related to the Black Oak Contingent Consideration, the probabilities for various scenarios (e.g., a 75% probability that the maximum amount of Black Oak Contingent Consideration will be payable), as well as the discount rate used in the Company’s calculations were based on internal projections, all of which were vetted by the Company’s senior management.

 

Holdback Consideration

 

The Holdback Consideration is comprised of (i) the market-based clawback amount (the “Market-Based Clawback Amount”) and (ii) the performance-based clawback amount (the “Performance-Based Clawback Amount”). The Holdback Consideration, which is comprised of shares of our preferred stock, was issued on April 1, 2016, the closing date of the Black Oak merger, and will be held in an escrow account for a period of one year.

 

The Market-Based Clawback Amount is determined as follows:

 

a) If the Terra Tech Common Stock 30-day VWAP on the one-year anniversary date of the Merger Agreement exceeds the Terra Tech Closing Price, the Market-Based Clawback Amount shall mean the number of shares of Terra Tech Common Stock equal to (i) (A) $4,912,000 divided by (B) the Terra Tech Closing Price, less (ii) (A) $4,912,000 divided by (B) the Terra Tech Common Stock 30-day VWAP on such date.

 

b) If the Terra Tech Common Stock 30-day VWAP on the one-year anniversary date of the Merger Agreement is less than or equal to the Terra Tech Closing Price, the Market-Based Clawback Amount shall be zero shares.

 

In no event will the Market-Based Clawback Amount exceed 50% of the Holdback Consideration.

 

The Performance-Based Clawback Amount is determined as follows:

 

a) The “Lower Threshold” means an amount equal to $11,979,351, and the “Upper Threshold” means an amount equal to $16,667,000.

 

b) If Black Oak’s operating revenues for the 12-month period following the closing date of the Black Oak merger (the “Year 1 Revenue”) is less than the Lower Threshold, then the Performance-Based Clawback Amount will be the number of shares obtained from a quotient, (A) the numerator of which is equal to the sum of (1) $4,912,000, plus (2) the product of 1.5 multiplied by the difference between the Lower Threshold and the Year 1 Revenue, and (B) the denominator of which is the Terra Tech common stock 30-day VWAP as of the one-year anniversary date of the closing of the Black Oak merger.

 

c) If the Year 1 Revenue is greater than or equal to the Lower Threshold but is less than the Upper Threshold, then the Performance-Based Clawback Amount will be the number of shares obtained from a quotient, (A) the numerator of which is equal to the product of 1.053 multiplied by the difference between the Upper Threshold and the Year 1 Revenue, and (B) the denominator of which is the Terra Tech common stock 30-day VWAP as of the one-year anniversary date of the closing of the Black Oak merger.

 

d) If the Year 1 Revenue is greater than or equal to the Upper Threshold, then the Performance-Based Clawback Amount will be zero shares.

 

Performance-Based Cash Consideration

 

Pursuant to the Merger Agreement, the Group B Shareholders may receive cash consideration of up to approximately $2,088,000 to be paid on approximately the one-year anniversary date of the closing of the Black Oak merger, to be determined as follows:

 

a) $0 if Year 1 Revenue is less than or equal to $12,000,000; and

 

b) the product obtained by multiplying 0.447 times Year 1 Revenue if Year 1 Revenue is greater than $12,000,000; provided, that in no event will the Performance-Based Cash Consideration amount exceed $2,088,000.

 

For example, pursuant to the above formula, if the revenue in Year 1 equals $16,666,666, then the Performance-Based Cash Consideration will be $2,088,000 calculated as follows:

 

Year 1 Revenue   $ 16,666,666  
Less:     12,000,000  
         
    $ 4,666,666  
      0.44742864  
         
Performance-Based Cash Payment   $ 2,088,000  
         

 

As of December 31, 2016, the Black Oak Contingent Consideration was based upon the following formula:

 

        One-Year                          
        Anniversary   Value of           Probability-Weighted      
        Date of the   Common   Performance-       Amounts      
Year 1       Merger 30-   Stock to   Based Cash       Earn-Out   Performance-      
Revenue       Day VWAP   Issue   Payment   Probability   Shares   Based Cash   Total  
                                   
        20%   $15,788,827   $2,088,000   4.0%   $631,553   $83,520   $715,073  
        $0.2108                          
                                   
Upside   20%   70%   $13,824,526   $2,088,000   14.0%   $1,935,434   $292,320   $2,227,754  
$16,667,000       $0.3108                          
                                   
        10%   $12,816,555   $2,088,000   2.0%   $256,331   $41,760   $298,091  
        $0.4108                          
                                   
                                   
        20%   $11,867,575   $747,500   15.0%   $1,780,136   $112,125   $1,892,261  
        $0.2108                          
                                   
Base   75%   70%   $11,164,938   $747,500   52.5%   $5,861,592   $392,438   $6,254,030  
$13,670,835       $0.3108                          
                                   
        10%   $10,804,383   $747,500   7.5%   $810,329   $56,063   $866,391  
        $0.4108                          
                                   
                                   
        20%   $7,251,428   $   –     1.0%   $72,514   $   –     $72,514  
        $0.2108                          
                                   
Downside   5%   70%   $8,034,038   $   –     3.5%   $281,191   $   –     $281,191  
$10,674,670       $0.3108                          
                                   
        10%   $8,435,630   $   –     0.5%   $42,178   $   –     $42,178  
        $0.4108                          
                                   
                                   
        Fair Value of Expected Earn-Out Payment   $11,671,259   $978,225   $12,649,484  
        Price Per Common Share   $0.2620   $0.2620      
        Discount Rate   20%   20%      
        Periods (nper)    0.250    0.250      
        Payments   $      –     $    –        
                                   
        Present Value Factor at 20% Discount Rate for 12 Months   0.9554   0.9554      
                                   
        Present Value of Contingent Consideration   $11,151,221   $934,638      
                                   
        Present Value of Contingent Consideration           $12,085,859  
                                   

 

Changes in the fair value of the Black Oak Contingent Consideration are recognized in the consolidated statements of operations. For the year ended December 31, 2016, the change in the fair market valuation of contingent consideration was $668,694.

 

 

 

The below table summarizes adjustments made to the Black Oak Contingent Consideration during the year ended December 31, 2016.

 

    Preliminary April 1, 2016  

Adjust- ments

June 30,

2016

   

June 30,

2016

 

Adjust- ments

September 30, 2016

    September 30, 2016  

Adjust- ments

December 31, 2016

      Final as of December 31, 2016
                                                   
Holdback Consideration Stock   $ 11,324,969   $ (514,339 )   $ 10,810,630   $ 217,895     $ 11,028,525   $ 122,695       $ 11,151,220
Performance-Based Cash     1,429,583     66,669       1,496,252     130,963       1,627,215     (692,577 )       934,638
Adjustment to Goodwill         447,670   (1)       (348,858 ) (1)       (98,812 ) (2)    
Change in Fair Value of Contingent Consideration                             98,812        
                                                   
Total Contingent Consideration   $ 12,754,553   $     $ 12,306,882   $     $ 12,655,740   $ (569,882 )     $ 12,085,858
                                                   

_____________________

(1) Changes in fair value of the Black Oak Contingent Consideration during the second and third quarter of 2016 (during measurement period) were taken to goodwill. Total adjustment was $98,812 which was recorded to the income statement at December 31, 2016.
(2) $98,812 is the combined adjustments to goodwill ($447,670 less $348,858) recorded to Change in Fair Value of Contingent Consideration at December 31, 2016.

 

See “Note 11 – Fair Value Measurements” for further information.