ITEM 1A. RISK FACTORS.
Our business involves a number of challenges and
risks. In addition to the other information in this report, you should consider carefully the following risk factors in evaluating us
and our business. The risks described below are not the only ones that we face. Additional risks not presently known to us or that we
currently deem immaterial may also affect our business, financial condition, operating results, or prospects. In assessing these risks,
you should also refer to the other information contained in this report, including our financial statements and related notes.
Risks related to our company and our business
We have a limited operating history and have generated limited
revenue to date.
Our company was recently founded, and to date we
have engaged primarily in finalizing our business plan and establishing the corporation and other formalities necessary to begin operations.
Accordingly, we have a very limited operating history on which to base an evaluation of our business and prospects. Our prospects must
be considered in light of the risks, expenses and difficulties frequently encountered by companies in their early stage of development,
particularly companies in new and evolving markets such as ours. The risks include, but are not limited to, an evolving business model
and the management of growth and product development. To address these risks, we must, among other things, implement and successfully
execute our business strategy and other business systems, respond to competitive developments, and attract, retain and motivate qualified
personnel. We cannot assure you that we will be successful in addressing the risks we may encounter, and our failure to do so could have
a material adverse effect on our business, prospects, financial condition and results of operations.
We have generated very limited revenues to date, including revenues
of $1,700,207 and $217,074 during fiscal 2021 and fiscal 2020, respectively. No revenue was generated for the fiscal year ended December 31,
2019. We have incurred net losses of $9.97 million, $1.29 million and $0.43 million during fiscal 2021, 2020 and 2019, respectively.
We had an accumulated deficit of $617,351 and total stockholders’ equity of $17.1 million at December 31, 2021. We may never
generate material revenues or achieve profitability.
We have not generated profits from operations to date. The success
and longevity of our company will depend on our ability to generate profits from future operations or obtain sufficient capital through
financing transactions to meet our business obligations.
The report of our independent registered public
accounting firm on our financial statements for the fiscal years ended December 31, 2020 and 2019, included in the prospectus
for our initial public offering, included an explanatory paragraph indicating that there is substantial doubt as to our ability to continue
as a going concern for twelve months from the financial statement issuance date, citing a net loss and net cash used in operations
of $1.3 million and $0.2 million, respectively, for the year ended December 31, 2020, and a stockholders’ deficit
and working capital deficit of $1.5 million and $1.5 million, respectively, as of December 31, 2020. This report was dated
August 31, 2021 and did not take into account the net proceeds of approximately $19.2 million (after deducting underwriting discounts
and commissions and estimated offering expenses) that we received in our December 2021 initial public offering. Our ability to continue
as a going concern will be determined by our ability to generate sufficient cash flow to sustain our operations and/or raise additional
capital in the form of debt or equity financing.
Since completing our initial public offering and
receiving net proceeds of approximately $19.2 million, our auditors have declared that we now have sufficient capital to continue business
operations without a need for additional capital. As a result, we no longer have a ‘going concern’ and have received necessary
funding to sustain operations in pursuit our its various growth strategies.
We need to hire additional personnel.
Our future success depends on our ability to identify,
attract, hire, train, retain and motivate highly skilled executive and technical personnel. We intend to hire or engage as contractors
a significant number of these personnel during the next year. Competition for qualified personnel is intense, particularly in the wine
industry in which there exists a limited number of qualified individuals with expertise in launching, managing and expanding wine brands.
If we fail to successfully attract, assimilate and retain a sufficient number of qualified personnel, our business could suffer.
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The success of our business depends heavily on the strength of
our wine brand.
Obtaining, maintaining and expanding our reputation
as a producer of premium wine among our customers and the premium wine market generally is critical to the success of our business and
our growth strategy. The premium wine market is driven by a relatively small number of active and well-regarded wine critics within the
industry who have outsized influence over the perceived quality and value of wines. If we are unable to maintain the actual or perceived
quality of our wines, including as a result of contamination or tampering, environmental or other factors impacting the quality of our
grapes or other raw materials, or if our wines otherwise do not meet the subjective expectations or tastes of one or more of a relatively
small number of wine critics, the actual or perceived quality and value of one or more of our wines could be harmed, which could negatively
impact not only the value of that wine, but also the value of the vintage, the particular brand or our broader portfolio. The winemaking
process is a long and labor-intensive process that is built around yearly vintages, which means that once a vintage has been released
we are not able to make further adjustments to satisfy wine critics or consumers. As a result, we are dependent on our winemakers and
tasting panels to ensure that every wine we release meets our exacting quality standards.
With the advent of social media, word within the
premium wine market spreads quickly, which can accentuate both the positive and the negative reviews of our wines and of wine vintages
generally. Public perception of our brands could be negatively affected by adverse publicity or negative commentary on social media outlets,
particularly negative commentary on social media outlets that goes “viral,” or our responses relating to, among other things:
If we do not produce wines that are well-regarded
by the relatively small wine critic community, the wine market will quickly become aware and our reputation, wine brand, business and
financial results of our operations could be materially and adversely affected. In addition, if our wine receives negative publicity or
consumer reaction, whether as a result of our wines or wines of other producers, our wines in the same vintage could be adversely affected.
Unfavorable publicity, whether accurate or not, related to our industry, us, our winery brands, marketing, personnel, operations, business
performance or prospects could also unfavorably affect our corporate reputation, company value, ability to attract high-quality talent
or the performance of our business.
Any contamination or other quality control issue
could have an adverse effect on sales of the impacted wine or our broader portfolio of wines. If any of our wines become unsafe or unfit
for consumption, cause injury or are otherwise improperly packaged or labelled, we may have to engage in a product recall and/or be subject
to liability and incur additional costs. A widespread recall, multiple recalls, or a significant product liability judgment against us
could cause our wines to be unavailable for a period of time, depressing demand and our brand equity. Even if a product liability claim
is unsuccessful or is not fully pursued, any resulting negative publicity could adversely affect our reputation with existing and potential
customers and accounts, as well as our corporate and individual winery brands image in such a way that current and future sales could
be diminished. In addition, should a competitor experience a recall or contamination event, we could face decreased consumer confidence
by association as a producer of similar products.
Additionally, third parties may sell wines or inferior
brands that imitate our wine brand or that are counterfeit versions of our labels, and customers could be duped into thinking that these
imitation labels are our authentic wines. For example, there could be instances of potential counterfeiting. A negative consumer experience
with such a wine could cause them to refrain from purchasing our brands in the future and damage our brand integrity. Any failure to maintain
the actual or perceived quality of our wines could materially and adversely affect our business, results of operations and financial results.
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Damage to our reputation or loss of consumer confidence
in our wines for any of these or other reasons could result in decreased demand for our wines and could have a material adverse effect
on our business, operational results and financial results, as well as require additional resources to rebuild our reputation, competitive
position and winery brand strength.
If our business grows, it will place increased demands on our
management, operational and production capabilities that we may not be able to adequately address. If we are unable to meet these increased
demands, our business will be harmed.
Unless we manage our growth effectively, we may
make mistakes in operating our business, such as inaccurate forecasting. The anticipated growth of our operations will place significant
demand on our management and operational resources. In order to manage growth effectively, we must implement and improve our operational
systems, procedures and controls on a timely basis. Our key personnel have limited experience managing this type of business. If we cannot
manage our business effectively, our business could suffer.
Our advertising and promotional investments may affect our financial
results but not be effective.
Consumer awareness is of great importance to the
success of businesses operating in the wine industry. We have incurred, and expect to continue to incur, significant advertising and promotional
expenditures to enhance our wine brand and raise consumer awareness, which we believe is vital to the long-term success of our operations.
These expenditures may adversely affect our results of operations in a particular quarter or even a full fiscal year, and may not result
in increased sales. Variations in the levels of advertising and promotional expenditures have in the past caused, and are expected in
the future to continue to cause, variability in our quarterly results of operations. While we strive to invest only in effective advertising
and promotional activities in both the digital and traditional segments, it is difficult to correlate such investments with sales results,
and there is no guarantee that our expenditures will be effective in building brand strength or growing long term sales.
We rely heavily on celebrities and sports organizations to endorse
our wines and market our brand.
The success of our business is heavily dependent
on positive image and public popularity of, and affinity towards, celebrity spokespersons. Nina Dobrev and Julianne Hough, two of our
founders, currently serve as ambassadors of our company who actively endorse our wines on their sizable social media and other outlets
and are considered by many to be the face of our brand. Customers may be drawn to our products because of their involvement in our Company
as celebrities. We also have sponsorship arrangements with teams and/or venues associated with the National Football League, National
Hockey League, National Basketball Association and Major League Baseball.
We have entered into license agreements with Ms.
Dobrev and Ms. Hough, pursuant to which each granted us a license to use her pre-approved name, likeness, image, and other indicia of
identity, as well as certain content published by her on her social media and other channels, on and in conjunction with the sale and
related pre-approved advertising and promotion of our wine. The license agreements are scheduled to expire in March 2026. However, the
license agreements provide that each of Ms. Dobrev and Ms. Hough will have the right to terminate her agreement if as of the end of calendar
year 2023, we have not achieved at least $5.0 million in EBITDA in either fiscal 2022 or fiscal 2023. See “Certain Relationships
and Related Party Transactions — License Agreements with Nina Dobrev and Julianne Hough.” If we are unable to renew our license
arrangements with Ms. Dobrev and Ms. Hough upon the expiration of these agreements in March 2026, or if Ms. Dobrev and Ms. Hough
are entitled to and elect to terminate the license agreements after 2023, the rights and licenses granted to us will be revoked and we
will be required to cease the marketing and sale of products that feature their name, likeness, image, and other indicia of identity.
In such event, we would be required to refocus our marketing and brand promotion efforts, which may adversely affect our business and
results of operations.
In addition, there is no assurance that our celebrity-based
brand promotion and marketing activities will be well-received by consumers and result in the levels of product sales that we anticipate.
Under extreme situations, our marketing efforts through celebrity endorsement may have a material adverse effect on our brand image. For
example, any damage to the reputations of our celebrity founders or any negative or controversial publicities that our celebrities are
involved in, either directly or indirectly, may result in the public’s negative perception of our brands and thus adversely affect
our reputation and the marketability and sales of our products. It is possible for negative posts or comments about our Company or our
celebrity spokespersons to be shared quickly and disseminated widely due to the continued growing use of social and digital media, possibly
resulting in “cancellation.” Celebrities’ reputation and favorability in the eyes of the public could also decrease
for a number of other reasons, including, without limitation, participation in media endeavours that are unsuccessful, diminished recognition
with the public due to decreased participation in the media landscape or shifting tastes of the public, failure to generate engagement
on new social media platforms at the levels they have enjoyed on existing platforms, and an inability to access to social media platforms
due to violations of terms of use or otherwise.
If the positive image and public popularity of our
celebrity spokespersons wanes or the public’s affinity towards the sports organizations that we sponsor decreases, regardless of
the reason, it would have a material adverse impact on one of our primary marketing activities and could result in decreased demand for
our wines, which would have a material adverse effect on our business, operational results and financial results, and require us to seek
additional resources to rebuild our reputation, competitive position and winery brand strength.
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We rely heavily on third-party suppliers and service providers,
and they may not continue to produce products or provide services that are consistent with our standards or applicable regulatory requirements,
which could harm our brand, cause consumer dissatisfaction, and require us to find alternative suppliers and service providers.
We have strategically structured our organization
and operations with a view towards minimizing our capital investment requirements. We do this by leveraging a network of third party providers
with industry experience and expertise that we use to perform various functions on our behalf. Specifically, we contract with Fior di
Sole, an industry leading packaging innovation and wine production company based in Napa Valley, California, to serve as a “host”
winery” and permit us occupy a portion of its production and warehouse facility and its production equipment on an alternating proprietorship
basis. Under this arrangement, we are able to use capacity at Fior di Sole’s production facility at times mutually convenient to
us and Fior di Sole to produce and bottle our wines. Fior di Sole is responsible for keeping its production equipment in good operating
order. Although we are solely responsible for managing and conducting our own winemaking activities, we may request use of the Fior di
Sole’s personnel to perform crush, fermentation, blending, cellar, warehousing, barrel topping and/or bottling services for additional
fees. Under a separate agreement, Fior di Sole provides us with bulk juice and blends, finishes, bottles, stops, labels and packages our
wine. Fior di Sole provides these services on a purchase order basis, which purchase orders are subject to the parties’ mutual agreement.
We also utilize third parties to help manage all
of our regulatory licensing and compliance activities, and we utilize additional software tools available to the industry to navigate
and manage the complex state-by-state regulations that apply to our operations in the beverage alcohol industry.
We engage many of our third-party suppliers and
service providers on a purchase order basis or pursuant to agreements that are generally one year or less in duration. The ability and
willingness of these third parties to supply and provide services to us may be affected by competing orders placed by other companies,
the demands of those companies or other factors. If we experience significant increases in demand, or need to replace a significant third
party supplier or service provider, there can be no assurance that alternative third party vendors will be available when required on
terms that are acceptable to us, or at all, or that any such vendor will allocate sufficient capacity to us in order to meet our requirements.
If we fail to replace a supplier or servicer provider in a timely manner or on commercially reasonable terms, we could incur product disruptions
and our operating results and financial condition could be materially harmed. Switching or adding additional vendors, particularly our
alternating proprietorship host winery, would also involve additional costs and require management time and focus.
Except for remedies that may be available to us
under our agreements with our third party vendors, we cannot control whether or not they devote sufficient time and resources to supporting
our business operations. These third parties may also have relationships with other commercial entities, including our competitors, for
whom they may also be providing services, which could affect their performance on our behalf. If these third parties do not successfully
carry out their contractual duties or obligations or meet expected deadlines or need to be replaced for other reasons, it could adversely
impact our ability to meet consumers’ demands for our products or comply with regulatory requirements and subject us to potential
liability, any of which may harm the reputation of our company and our products.
Although we carefully manage our relationships with
our network of third party vendors, there can be no assurance that we will not encounter challenges or delays in the future or that these
challenges or delays will not have a material adverse impact on our business, financial condition and prospects.
We face significant competition with an increasing number of
products and market participants that could materially and adversely affect our business, results of operations and financial results.
Our industry is intensely competitive and highly
fragmented. Our wines compete with many other domestic and foreign wines. Our wines compete with popularly priced generic wines and with
other alcoholic and, to a lesser degree, non-alcoholic beverages, for drinker acceptance and loyalty, shelf space and prominence in retail
stores, presence and prominence on restaurant wine lists and for marketing focus by the Company’s distributors, many of which carry
extensive portfolios of wines and other alcoholic beverages. This competition is driven by established companies as well as new entrants
in our markets and categories. In the United States, wine sales are relatively concentrated among a limited number of large suppliers,
including E&J Gallo, Constellation, Duckhorn, Trinchero, Jackson Family Wines, Ste. Michelle and The Wine Group, and these and our
other competitors may have more robust financial, technical, marketing and distribution networks and public relations resources than we
have. As a result of this intense competition, combined with our growth goals, we have experienced and may continue to face upward pressure
on our selling, marketing and promotional efforts and expenses. There can be no assurance that in the future we will be able to successfully
compete with our competitors or that we will not face greater competition from other wineries and beverage manufacturers.
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If we are unable to successfully compete with existing
or new market participants, or if we do not effectively respond to competitive pressures, we could experience reductions in market share
and margins that could have a material and adverse effect on our business, results of operations and financial results.
Consolidation of the distributors of our wines, as well as the
consolidation of retailers, may increase competition in an already crowded space and may have a material adverse effect on our business,
results of operations and financial results.
Other than sales made directly to our consumers,
the majority of our wine sales are made through distributors for resale to retail outlets, restaurants and hotels across the United States.
We expect sales to distributors to represent an increasingly substantial portion of our future net sales as we continue to grow our network
of wholesale distributors. Consolidation among wine producers, distributors, wholesalers, suppliers and retailers could create a more
challenging competitive landscape for our wines. In addition, the increased growth and popularity of the retail e-commerce environment
across the consumer product goods market, which has accelerated during the COVID-19 pandemic and the resulting quarantines, “stay
at home” orders, travel restrictions, retail store closures, social distancing requirements and other government action, is highly
likely to change the competitive landscape for our wines. Consolidation at any level could hinder the distribution and sale of our wines
as a result of reduced attention and resources allocated to our winery brands both during and after transition periods, because our winery
brands might represent a smaller portion of the new business portfolio. Furthermore, consolidation of distributors may lead to the erosion
of margins as newly consolidated distributors take down prices or demand more margin from existing suppliers. Changes in distributors’
strategies, including a reduction in the number of brands they carry or the allocation of resources for our competitors’ brands
or private label products, may adversely affect our growth, business, financial results and market share. Distributors of our wines offer
products that compete directly with our wines for inventory and retail shelf space, promotional and marketing support and consumer purchases.
Expansion into new product categories by other suppliers or innovation by new entrants into the market could increase competition in our
product categories.
An increasingly large percentage of our net sales
is concentrated within a small number of wholesale customers. The purchasing power of large retailers is significant, and they have the
ability to command concessions. There can be no assurance that the distributors and retailers will purchase our wines or provide our wines
with adequate levels of promotional and merchandising support. The failure to bring on major accounts or the need to make significant
concessions to retain one or more such accounts could have a material and adverse effect on our business, results of operations and financial
position.
A reduction in consumer demand for wine, which may result from
a variety of factors, including demographic shifts and decreases in discretionary spending, could materially and adversely affect our
business, results of operations and financial results.
We rely on consumers’ demand for our wine.
Consumer preferences may shift due to a variety of factors, including changes in demographic or social trends, changes in discretionary
income, public health policies and perceptions and changes in leisure, dining and beverage consumption patterns. Our success will require
us to anticipate and respond effectively to shifts in consumer behavior and drinking tastes. If consumer preferences were to move away
from our wine brand, our results of operations would be materially and adversely affected.
A limited or general decline in consumer demand
could occur in the future due to a variety of factors, including:
● a general decline in economic or geopolitical conditions;
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● increased activity of anti-alcohol groups;
Demand for premium wine brands, like ours, may be
particularly susceptible to changing economic conditions and consumer tastes, preferences and spending habits, which may reduce our sales
of these products and adversely affect our profitability. An unanticipated decline or change in consumer demand or preference could also
materially impact our ability to forecast for future production requirements, which could, in turn, impair our ability to effectively
adapt to changing consumer preferences. Any reduction in the demand for our wines would materially and adversely affect our business,
results of operations and financial results.
Due to the three-tier alcohol beverage distribution system in
the United States, we are heavily reliant on our distributors that resell alcoholic beverages in all states in which we do business.
A significant reduction in distributor demand for our wines would materially and adversely affect our sales and profitability.
Due to regulatory requirements in the United States,
we sell a significant portion of our wines to wholesalers for resale to retail accounts. A change in the relationship with any of our
significant distributors could harm our business and reduce our sales. The laws and regulations of several states prohibit changes of
distributors, except under certain limited circumstances, making it difficult to terminate or otherwise cease working with a distributor
for poor performance without reasonable justification, as defined by applicable statutes. Any difficulty or inability to replace distributors,
poor performance of our major distributors or our inability to collect accounts receivable from our major distributors could harm our
business. In addition, an expansion of the laws and regulations limiting the sale of our wine would materially and adversely affect our
business, results of operations and financial results. There can be no assurance that the distributors and accounts to which we sell our
wines will continue to purchase our wines or provide our wines with adequate levels of promotional support, which could increase competitive
pressure to increase sales and marketing spending and could materially and adversely affect our business, results of operations and financial
results.
Our marketing strategy involves continued expansion into the
direct-to-consumer channel, which may present risks and challenges that we have not yet experienced or contemplated, or for which we are
not adequately prepared. These risks and challenges could negatively affect our sales in these channels and our profitability.
To date, we have been successful in generating and
expanding revenue from sales of wine through our direct-to-consumer e-commerce website. During the quarter ended December 31, 2021, we
generated revenue of $240,670 from direct-to-consumer sales, which represents a $1,018 decrease in direct-to-consumer revenue generate
during the quarter ended September 30, 2021, a $13,139 increase in direct-to-consumer revenue generated during the quarter ended June
30, 2021 and a $176,138 increase in direct-to-consumer revenue generated during the quarter ended March 31, 2021. A portion of our
operating strategy is to continue to expand our sales of wine through this direct-to-consumer channel. The direct-to-consumer marketplace
is highly competitive and in recent years has seen the entrance of new competitors and products targeting similar customer groups
as our business. To be competitive and forge new connections with customers, we are continuing investment in the expansion of our direct-to-consumer
channel. Such expansion may require significant investment in e-commerce platforms, marketing, fulfilment, information technology (“IT”)
infrastructure and other known and unknown costs. The success of our direct-to-consumer sales channel depends on our ability to maintain
the efficient and uninterrupted operation of online order-processing and fulfilment and delivery operations. As such, we are heavily dependent
on the performance of our shipping and technology partners. Any system interruptions or delays could prevent potential customers from
purchasing our wines directly.
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Our ability to ship wines directly to our customers
is the result of court rulings, including the U.S. Supreme Court ruling in Granholm v. Heald, which allow, in certain circumstances,
shipments to customers of wines from out-of-state wineries. Any changes to the judicial, legal or regulatory framework that reduce our
ability to sell wines in most states using our direct-to-consumer sales channel could have a materially adverse effect on our business,
results of operations and financial results.
We may be unable to adequately adapt to shifts in
consumer preferences for points of purchase, such as an increase in at-home delivery during the COVID-19 pandemic, and our competitors
may react more rapidly or with improved customer experiences. A failure to react quickly to these and other changes in consumer preferences,
or to create infrastructure to support new or expanding sales channels may materially and adversely affect our business, results of operations
and financial results.
A failure to adequately prepare for adverse events that could
cause disruption to elements of our business, including the availability of bulk grapes, and the blending, inventory aging or distribution
of our wines could materially and adversely affect our business, results of operations and financial results.
Disruptions to our operations caused by adverse
weather, natural disasters, public health emergencies, including the COVID-19 pandemic, or unforeseen circumstances may cause delays to
or interruptions in our operations. Concerns regarding the availability of water for production is particular to companies that produce
and bottle wines in California. A consequence of any of these or supply or supply chain disruptions, including the temporary inability
to produce our wines due to the closure of our production sites, could prevent us from meeting consumer demand in the near term or long
term for our aged wines. For example, as result of the COVID-19 pandemic, our industry has experienced temporary supply chain disruptions
for certain processed materials, cardboard packaging and glass, as well as increased strain on logistics networks and shipping partners.
The occurrence of any such disruptions during a peak time of demand for such processed materials could increase the magnitude of the effect
on our distribution network and sales. Failure to adequately prepare for and address any such disruptions could materially and adversely
affect our business, results of operations and financial results.
A catastrophic event causing physical damage, disruption
or failure at our production facility could adversely affect our business. Although our wines currently available for sale do not require
substantial aging, we expect that certain of our wines, including the Reserve Cabernet Sauvignon, require aging for some period of time.
As a result, we expect to maintain inventory of aged and maturing wines in warehouses. The loss of a substantial amount of aged inventory
through fire, accident, earthquake, other natural or man-made disaster, contamination or otherwise could significantly reduce the supply
of the affected wine or wines, including our aged wines, which are typically the highest priced and limited production wines.
Any disruptions that cause forced closure or evacuation
could materially harm our business, results of operations and financial results. Additionally, should multiple closings occur, we may
lose guest confidence resulting in a reduction in direct sales, which could materially and adversely affect our business, results of operations
and financial results. If we expand our future operations to include tasting rooms, such closings would also negatively impact visitation.
Inclement weather, drought, pests, plant diseases and other factors
could reduce the amount or quality of the grapes available to produce our wines, which could materially and adversely affect our business,
results of operations and financial results.
A shortage in the supply of quality grapes may result
from the occurrence of any number of factors that determine the quality and quantity of grape supply, including adverse weather conditions
(including heatwaves, frosts, drought and excessive rainfall), and various diseases, pests, fungi and viruses. We cannot anticipate changes
in weather patterns and conditions, and we cannot predict their impact on our operations if they were to occur. Any shortage could cause
an increase in the price of some or all of the grape varietals required for our wine production or a reduction in the amount of wine we
are able to produce, which could materially and adversely affect our business, results of operations and financial results.
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Factors that reduce the quantity of grapes the growers
with which we contract grow may also reduce their quality. Deterioration in the quality of our wines could harm our winery brand strength,
and a decrease in our production could reduce our sales and increase our expenses, both of which could materially and adversely affect
our business, results of operations and financial results.
If we are unable to obtain adequate supplies of premium juice
from third-party juice suppliers, the quantity or quality of our annual production of wine could be adversely affected, causing a negative
impact on our business, results of operations and financial condition.
The production of our wines and the ability to fulfill
the demand for our wines is restricted by the availability of premium grapes and juice from third-party growers. If we are unable to source
grapes and juice of the requisite quality, varietal and geography, among other factors, our ability to produce wines to the standards,
quantity and quality demanded by our customers could be impaired.
Factors including climate change, agricultural risks,
competition for quality, water availability, land use, wildfires, floods, disease and pests could impact the quality and quantity of grapes
and bulk juice available to our company. Furthermore, these potential disruptions in production may drive up demand for grapes and bulk
juice creating higher input costs or the inability to purchase these materials. Following the 2020 wildfires in Northern California, the
price of bulk juice increased substantially in a very short period of time, leading to some wine producers reducing lot sizes of certain
wines. As a result, our financial results could be materially and adversely affected both in the year of the harvest and future periods.
If we are unable to identify and obtain adequate supplies of
quality agricultural, raw and processed materials, including corks, glass bottles, barrels, winemaking additives and agents, water and
other supplies, or if there is an increase in the cost of the commodities or products, our profitability, production and distribution
capabilities could be negatively impacted, which would materially and adversely affect our business, results of operations and financial
condition.
We use grapes and other raw materials to produce
and package our wine, including corks, barrels, winemaking additives and water, as well as large amounts of packaging materials, including
metal, cork, glass and cardboard. We purchase raw materials and packaging materials under contracts of varying maturities from domestic
and international suppliers.
Glass bottle costs are one of our largest packaging
components of cost of goods sold. In North America, glass bottles have only a small number of producers. An inability of any of our glass
bottle suppliers to satisfy our requirements could materially and adversely affect our business. In addition, costs and programs related
to mandatory recycling and recyclable materials deposits could be adopted in states of manufacture, imposing additional and unknown costs
to manufacture products utilizing glass bottles. The amount of water available for use is important to the supply of our grapes and winemaking,
other agricultural raw materials and our ability to operate our business. If climate patterns change and droughts become more severe,
there may be a scarcity of water or poor water quality, which may affect our production costs, consistency of yields or impose capacity
constraints. We depend on sufficient amounts of quality water for operation of our wineries, as well as to conduct our other operations.
The suppliers of the grapes and other agricultural raw materials we purchase also depend upon sufficient supplies of quality water for
their vineyards and fields. Prolonged or severe drought conditions in the western United States or restrictions imposed on irrigation
options by governmental authorities could have an adverse effect on our operations in the region. If water available to our operations
or the operations of our suppliers becomes scarcer, restrictions are placed on our usage of water or the quality of that water deteriorates,
we may incur increased production costs or face manufacturing constraints which could negatively affect our production. Even if quality
water is widely available to us, water purification and waste treatment infrastructure limitations could increase our costs or constrain
operation of our production facilities. Any of these factors could materially and adversely affect our business, results of operations
and financial results.
Our production and shipping activities also use
energy in their operations, including electricity, propane and natural gas. Energy costs could rise in the future, which would result
in higher transportation, freight and other operating costs, such as ageing and bottling expenses. Our freight cost and the timely delivery
of our wines could be adversely affected by a number of factors that could reduce the profitability of our operations, including driver
shortages, higher fuel costs, weather conditions, traffic congestion, increased government regulation, and other matters. In addition,
increased labor costs or insufficient labor supply could increase our production costs.
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Our supply and the price of raw materials, packaging
materials and energy and the cost of energy, freight and labor used in our productions and distribution activities could be affected by
a number of factors beyond our control, including market demand, global geopolitical events (especially their impact on energy prices),
economic factors affecting growth decisions, exchange rate fluctuations and inflation. To the extent any of these factors, including supply
of goods and energy, affect the prices of ingredients or packaging, or we do not effectively or completely hedge changes in commodity
price risks, or are unable to recoup costs through increases in the price of our finished wines, our business, results of operations and
financial results could be materially and adversely affected.
The COVID-19 pandemic has affected our customers, our suppliers
and our business operations, and the duration and extent to which this and any future global health pandemics will impact our business,
results of operations and financial results in future periods remains uncertain.
The COVID-19 pandemic is having widespread, rapidly
evolving and unpredictable impacts on global society, economies, financial markets and business practices. Federal, state and foreign
governments have implemented measures to contain the virus, including social distancing, travel restrictions, border closures, limitations
on public gatherings, work from home requirements and closure of non-essential businesses. While we continue to closely monitor the situation
and may adjust our current policies as more information and public health guidance become available, such precautionary measures, or any
similar precautionary measures we are required or deem advisable to take in the future could negatively affect our business, results of
operations and financial results. Our business may suffer should there be supply disruption due to restrictions on the ability of employees
or our suppliers to travel and work, or if government or public health officials limit the travel of individuals impacting our ability
to source materials. These events may impair our ability to make, bottle and ship our wines, our distributors’ ability to distribute
our wines or our ability to obtain the grapes needed to produce our wines. Our operations may become less efficient or otherwise be negatively
impacted if critical employees are unable to work or if a significant percentage of the workforce is unable to work.
Risks related to our business
The impact of U.S. and worldwide economic trends and financial
market conditions could materially and adversely affect our business, liquidity, financial condition and results of operations.
We are subject to risks associated with adverse
economic conditions in the United States and globally, including economic slowdown, inflation, and the disruption, volatility and
tightening of credit and capital markets. Unfavorable global or regional economic conditions could materially and adversely impact our
business, liquidity, financial condition and results of operations. In general, positive conditions in the broader economy promote customer
spending on wine, while economic weakness, which generally results in a reduction of customer spending, may have a more pronounced negative
effect on spending on wine. Unemployment, tax increases, governmental spending cuts or a return of high levels of inflation could affect
consumer spending patterns and purchases of our wines and other alcoholic beverage products. Reduced consumer discretionary spending and
reduced consumer confidence could negatively affect the trend towards consuming premium wines and could result in a reduction of wine
and beverage alcohol consumption in the United States generally. In particular, extended periods of high unemployment, lower consumer
discretionary spending and low consumer confidence could result in lower sales of premium wine brands, including our wine, in favor of
wine brands which have a lower average sales price and generally have lower gross profit margins and lower overall sales, which could
negatively impact our business and results of operations. These conditions could also create or worsen credit issues, cash flow issues,
access to credit facilities and other financial hardships for us and our suppliers, distributors, accounts and consumers. An inability
of our suppliers, distributors and retailers to access liquidity could impact our ability to produce and distribute our wines.
If we are unable to secure and protect our intellectual property
in domestic and foreign markets, including trademarks for our wine brands and wines, the value of our wine brands and intellectual property
could decline, which could have a material and adverse effect on our business, results of operations and financial results.
Our future success depends significantly on our
ability to protect our current and future wine brands and wines and to enforce and defend our trademarks and other intellectual property
rights. We rely on a combination of trademark, copyright and trade secret laws, as well as confidentiality procedures and contractual
restrictions, to secure and protect our intellectual property rights. We have been granted three (3) trademark registrations in the
United States for FRESH VINE®, FRESH VINE (Stylized)®, and our FV Logo®, and numerous trademark registrations in other
countries for the FRESH VINE mark, and we have filed, and expect to continue to file, trademark applications seeking to protect newly-developed
wine brands. We have also been granted a copyright registration in the first version of our website located at www.freshvine.com.
While a copyright exists in a work of art once it is fixed in tangible medium, we intend to continue to file copyright applications to
protect newly-developed works of art that are important to our business.
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We cannot be sure that any trademark office or copyright
office will issue trademark registrations under any of our trademark applications, or copyright registrations under any of our copyright
applications. Third parties may oppose the registration of our trademark applications, contest our trademark rights or copyrights, and
petition to cancel our registered trademarks. We cannot assure you that we will be successful in defending our trademarks or copyrights
in actions brought by third parties. There is also a risk that we could fail to timely maintain or renew our trademark registrations or
otherwise protect our trademark rights or copyrights, which could result in the loss of those trademark rights (including in connection
with failure to maintain consistent use of these trademarks). If we fail to maintain our trademarks or a third party successfully challenges
our trademarks or copyrights, we could be forced to rebrand our wineries, wines and other products, which could result in a loss of winery
brand recognition and could require us to devote additional resources to the development and marketing of new wine brands.
Notwithstanding any trademark registrations or copyright
registrations held by us, a third party could bring a lawsuit or other claim alleging that we have infringed that third party’s
trademark rights or copyrights. Any such claims, with or without merit, could require significant resources to defend, could damage the
reputation of our wine brands, could result in the payment of compensation (whether as a damages award or settlement) to such third parties,
and could require us to stop using our wine brands or otherwise agree to an undertaking to limit that use. In addition, our actions to
monitor and enforce trademark rights or copyrights against third parties may not prevent counterfeit products or products bearing confusingly
similar trademarks from entering the marketplace, which could divert sales from us, tarnish our reputation or reduce the demand for our
products or the prices at which we sell those products. Any enforcement litigation brought by us, whether or not successful, could require
significant costs and resources, and divert the attention of management, which could negatively affect our business, results of operations
and financial results. Third parties may also acquire and register domain names that are confusingly similar to or otherwise damaging
to the reputation of our trademarks, and we may not be able to prevent or cancel any such domain name registrations.
In addition to registered intellectual property
rights such as trademark registrations and copyright registrations, we rely on non-registered proprietary information, such as trade secrets,
confidential information and know-how, including in connection with the crafting of our low calorie, low-carb, premium tasting wines.
In order to protect our proprietary information, we rely in part on agreements with our employees, independent contractors and other third
parties that place restrictions on the use and disclosure of this intellectual property. These agreements may be breached, or this intellectual
property, including trade secrets, may otherwise be disclosed or become known to our competitors, which could cause us to lose any competitive
advantage resulting from this intellectual property. To the extent that our employees, independent contractors or other third parties
with whom we do business use intellectual property owned by others in their work for us, disputes may arise as to the rights in related
or resulting know-how and inventions. The loss of trade secret protection could make it easier for third parties to compete with our products.
In addition, any changes in, or unexpected interpretations of, intellectual property laws may compromise our ability to enforce our trade
secret and intellectual property rights. Costly and time-consuming litigation could be necessary to enforce and determine the scope of
our proprietary rights, and failure to obtain or maintain protection of our trade secrets or other proprietary information could harm
our business, financial condition, results of operations and competitive position.
We may not be fully insured against catastrophic perils, including
catastrophic loss or inaccessibility of wineries, production facilities and/or distribution systems resulting from fire, wildfire, flood,
wind events, earthquake and other perils, which may cause us to experience a material financial loss.
Although we currently store the bulk of our wine
inventory at our third-party warehouse in California, which is prone to seismic activity, wildfires and floods, among other perils. If
any of these facilities were to experience a catastrophic loss in the future, it could disrupt our operations, delay production, shipments
and our recognition of revenue, and result in potentially significant expenses to repair or replace the facility. If such a disruption
were to occur, we could breach agreements, our reputation could be harmed and our business and operating results could be materially and
adversely affected. Although we carry insurance to cover property and inventory damage and business interruption, these coverages are
subject to deductibles and self-insurance obligations, as well as caps on coverage that could be below the value of losses we could incur
in certain catastrophic perils. Furthermore, claims for recovery against our insurance policies can be time-consuming, and may result
in significant delays between when we incur damages and when we receive payment under our insurance policies. If one or more significant
catastrophic events occurred damaging our own or third-party assets and/or services, we could suffer a major financial loss and our business,
results of operations and financial condition could be materially and adversely affected.
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Furthermore, increased incidence or severity of
natural disasters has adversely impacted our ability to obtain adequate property damage, inventory and business interruption insurance
at financially viable rates, if at all. For example, we have observed certain insurers ceasing to offer certain inventory protection policies,
and we have supplemented our insurance coverage recently by purchasing policies at higher premiums. If these trends continue and our insurance
coverage is adversely affected, and to the extent we elect to increase our self-insurance obligations, we may be at greater risk that
similar future events will cause significant financial losses and materially and adversely affect our business, results of operations
and financial results.
From time to time, we may become subject to litigation specifically
directed at the alcoholic beverage industry, as well as litigation arising in the ordinary course of business.
Companies operating in the alcoholic beverage industry
may, from time to time, be exposed to class action or other private or governmental litigation and claims relating to product liability,
alcohol marketing, advertising or distribution practices, alcohol abuse problems or other health consequences arising from the excessive
consumption of or other misuse of alcohol, including underage drinking. Various groups have, from time to time, publicly expressed concern
over problems related to harmful use of alcohol, including drinking and driving, underage drinking and health consequences from the misuse
of alcohol. These campaigns could result in an increased risk of litigation against the Company and our industry. Lawsuits have been brought
against beverage alcohol companies alleging problems related to alcohol abuse, negative health consequences from drinking, problems from
alleged marketing or sales practices and underage drinking. While these lawsuits have been largely unsuccessful in the past, others may
succeed in the future.
From time to time, we may also be party to other
litigation in the ordinary course of our operations, including in connection with commercial disputes, enforcement or other regulatory
actions by tax, customs, competition, environmental, anti-corruption and other relevant regulatory authorities, or, securities-related
class action lawsuits, particularly following any significant decline in the price of our securities. Any such litigation or other actions
may be expensive to defend and result in damages, penalties or fines as well as reputational damage to our company and our winery brands
and may impact the ability of management to focus on other business matters. Furthermore, any adverse judgments may result in an increase
in future insurance premiums, and any judgments for which we are not fully insured may result in a significant financial loss and may
materially and adversely affect our business, results of operations and financial results.
A failure of one or more of our key IT systems, networks, processes,
associated sites or service providers could have a material adverse impact on business operations, and if the failure is prolonged, our
financial condition.
We rely on IT systems, networks, and services, including
internet sites, data hosting and processing facilities and tools, hardware (including laptops and mobile devices), software and technical
applications and platforms, some of which are managed, hosted, provided and used by third parties or their vendors, to assist us in the
management of our business. The various uses of these IT systems, networks and services include, but are not limited to: hosting our internal
network and communication systems; supply and demand planning; production; shipping wines to customers; hosting our winery websites and
marketing products to consumers; collecting and storing customer, consumer, employee, stockholder, and other data; processing transactions;
summarizing and reporting results of operations; hosting, processing and sharing confidential and proprietary research, business plans
and financial information; complying with regulatory, legal or tax requirements; providing data security; and handling other processes
necessary to manage our business.
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Increased IT security threats and more sophisticated
cybercrimes and cyberattacks, including computer viruses and other malicious codes, ransomware, unauthorized access attempts, denial of
service attacks, phishing, social engineering, hacking and other types of attacks pose a potential risk to the security of our IT systems,
networks and services, as well as the confidentiality, availability, and integrity of our data, and we have in the past, and may in the
future, experience cyberattacks and other unauthorized access attempts to our IT systems. Because the techniques used to obtain unauthorized
access are constantly changing and often are not recognized until launched against a target, we or our vendors may be unable to anticipate
these techniques or implement sufficient preventative or remedial measures. If we are unable to efficiently and effectively maintain and
upgrade our system safeguards, we may incur unexpected costs and certain of our systems may become more vulnerable to unauthorized access.
In the event of a ransomware or other cyber-attack, the integrity and safety of our data could be at risk or we may incur unforeseen costs
impacting our financial position. If the IT systems, networks or service providers we rely upon fail to function properly, or if we suffer
a loss or disclosure of business or other sensitive information due to any number of causes ranging from catastrophic events, power outages,
security breaches, unauthorized use or usage errors by employees, vendors or other third parties and other security issues, we may be
subject to legal claims and proceedings, liability under laws that protect the privacy and security of personal information (also known
as personal data), litigation, governmental investigations and proceedings and regulatory penalties, and we may suffer interruptions in
our ability to manage our operations and reputational, competitive or business harm, which may adversely affect our business, results
of operations and financial results. In addition, such events could result in unauthorized disclosure of material confidential information,
and we may suffer financial and reputational damage because of lost or misappropriated confidential information belonging to us or to
our employees, stockholders, customers, suppliers, consumers or others. In any of these events, we could also be required to spend significant
financial and other resources to remedy the damage caused by a security breach or technological failure and the reputational damage resulting
therefrom, to pay for investigations, forensic analyses, legal advice, public relations advice or other services, or to repair or replace
networks and IT systems. As a result of the COVID-19 pandemic, a greater number of our employees are working remotely and accessing our
IT systems and networks remotely, which may further increase our vulnerability to cybercrimes and cyberattacks and increase the stress
on our technology infrastructure and systems. Even though we maintain cyber risk insurance, this insurance may not be sufficient to cover
all of our losses from any future breaches or failures of our IT systems, networks and services.
Our failure to adequately maintain and protect personal information
of our customers or our employees in compliance with evolving legal requirements could have a material adverse effect on our business.
We collect, use, store, disclose or transfer (collectively,
“process”) personal information, including from employees and customers, in connection with the operation of our business.
A wide variety of local and international laws as well as regulations and industry guidelines apply to the privacy and collecting, storing,
use, processing, disclosure and protection of personal information and may be inconsistent among countries or conflict with other rules.
Data protection and privacy laws and regulations are changing, subject to differing interpretations and being tested in courts and may
result in increasing regulatory and public scrutiny and escalating levels of enforcement and sanctions.
A variety of data protection legislation apply in
the United States at both the federal and state level, including new laws that may impact our operations. For example, the State
of California has enacted the California Consumer Privacy Act of 2018 (“CCPA”), which generally requires companies
that collect, use, share and otherwise process “personal information” (which is broadly defined) of California residents to
make disclosures about their data collection, use, and sharing practices, allows consumers to opt-out of certain data sharing with third
parties or the sale of personal information, allows consumers to exercise certain rights with respect to any personal information collected
and provides a new cause of action for data breaches. In addition, a new privacy law, the California Privacy Rights Act (“CPRA”),
which significantly modifies the CCPA, was recently approved by ballot initiative during the November 3, 2020 general election. There
remains significant uncertainty regarding the timing and implementation of the CPRA, which may require us to incur additional expenditures
to ensure compliance. Additionally, the Federal Trade Commission, and many state attorneys general are interpreting federal and state
consumer protection laws to impose standards for the online collection, use, dissemination, and security of data. The burdens imposed
by the CCPA and other similar laws that have been or may be enacted at the federal and state level may require us to modify our data processing
practices and policies and to incur additional expenditures in order to comply.
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Foreign laws and regulations relating to privacy,
data protection, information security and consumer protection often are more restrictive than those in the United States. The European
Union, for example, traditionally has imposed stricter obligations under its laws and regulations relating to privacy, data protection
and consumer protection than the United States. In May 2018 the European Union’s new regulation governing data practices
and privacy called the General Data Protection Regulation, or GDPR, became effective and substantially replaced the data protection laws
of the individual European Union member states. The law requires companies to meet more stringent requirements regarding the handling
of personal data of individuals in the EU than were required under predecessor EU requirements. In the United Kingdom, a Data Protection
Bill that substantially implements the GDPR also became law in May 2018. The GDPR and other similar regulations require companies
to give specific types of notice and in some cases seek consent from consumers and other data subjects before collecting or using their
data for certain purposes, including some marketing activities. Outside of the European Union, many countries have laws, regulations,
or other requirements relating to privacy, data protection, information security, and consumer protection, and new countries are adopting
such legislation or other obligations with increasing frequency. Many of these laws may require consent from consumers 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 would increase our risk of non-compliance with applicable foreign data protection
laws by expanding 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. 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, information security and consumer protection.
Compliance with these and any other applicable privacy
and data protection laws and regulations is a rigorous and time-intensive process, and we may be required to put in place additional mechanisms
ensuring compliance with the new privacy and data protection laws and regulations. Our actual or alleged failure to comply with any applicable
privacy and data protection laws and regulations, industry standards or contractual obligations, or to protect such information and data
that we process, could result in litigation, regulatory investigations, and enforcement actions against us, including fines, orders, public
censure, claims for damages by employees, customers and other affected individuals, public statements against us by consumer advocacy
groups, damage to our reputation and competitive position and loss of goodwill (both in relation to existing customers and prospective
customers) any of which could have a material adverse effect on our business, financial condition, results of operations, and cash flows.
Additionally, if third parties that we work with, such as vendors or developers, violate applicable laws or our policies, such violations
may also place personal information at risk and have an adverse effect on our business. Even the perception of privacy concerns, whether
or not valid, may harm our reputation, subject us to regulatory scrutiny and investigations, and inhibit adoption of our wines by existing
and potential customers.
Risks related to regulation
As a producer of alcoholic beverages, we are regularly the subject
of regulatory reviews, proceedings and audits by governmental entities, any of which could result in an adverse ruling or conclusion,
and which could have a material adverse effect on our business, financial condition, results of operations and future prospects.
We are subject to extensive regulation in the
United States by federal, state and local laws regulating the production, distribution and sale of consumable food items, and specifically
alcoholic beverages, including by the Alcohol and Tobacco Tax and Trade Bureau (the “TTB”) and the Food and Drug Administration
(the “FDA”). These and other regulatory agencies impose a number of product safety, labelling and other requirements on our
operations and sales. In California, where all of our wines are made, we are subject to alcohol-related licensing and regulations by many
authorities, including the Department of Alcohol Beverage Control (the “ABC”), which investigates applications for licenses
to sell alcoholic beverages, reports on the moral character and fitness of alcohol license applicants and the suitability of premises
where sales are to be conducted. We are also subject to regulatory compliance requirements in all states in which we sell our wines. Any
governmental litigation, fines or restrictions on our operations resulting from the enforcement of these existing regulations or any new
legislation or regulations could have a material adverse effect on our business, results of operations and financial results. Any government
intervention challenging the production, marketing, promotion, distribution or sale of beverage alcohol or specific brands could affect
our ability to sell our wines. Because litigation and other legal proceedings can be costly to defend, even actions that are ultimately
decided in our favor could have a negative impact on our business, results of operations or financial results. Adverse developments in
major lawsuits concerning these or other matters could result in management distraction and have a material adverse effect on our business.
Changes to the interpretation or approach to enforcement of regulations may require changes to our business practices or the business
practices of our suppliers, distributors or customers. The penalties associated with any violations or infractions may vary in severity,