UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
(Mark One)
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 2016
or
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period from ____________ to ____________
Commission File Number 000-54258
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TERRA TECH CORP. |
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(Exact Name of Registrant as Specified in its Charter) |
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NEVADA |
26-3062661 | |
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(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
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2040 Main Street, Suite 225 Irvine, California |
92614 | |
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(Address of Principal Executive Offices) |
(Zip Code) |
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(Registrant’s Telephone Number, Including Area Code) (855) 447-6967 |
Securities Registered Pursuant to Section 12(b) of the Act:
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None |
None | |
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(Title of Each Class) |
(Name of Each Exchange on Which Registered) |
Securities Registered Pursuant to Section 12(g) of the Act:
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Common Stock, $0.001 Par Value |
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(Title of Class) |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities and Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer”, “non-accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check One):
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Large Accelerated Filer |
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Accelerated Filer |
x |
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Non-Accelerated Filer |
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Smaller Reporting Company |
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 in the Exchange Act). Yes ¨ No x
At June 30, 2016, the last business day of the Registrant’s most recently completed second fiscal quarter, the aggregate market value of the registrant’s voting stock held by non-affiliates (based on the closing sale price of the registrant’s Common Stock on the OTC Market Group Inc.’s OTCQX tier, and for the purpose of this computation only, on the assumption that all of the Registrant’s directors and officers are affiliates, was approximately $115,713,491.
As of March 24, 2017, there were 574,303,117 shares of common stock outstanding, 100 shares of Series A Preferred Stock, convertible at any time into 100 shares of common stock, 37,425,953 shares of Series B Preferred Stock, convertible into approximately 201,513,515 shares of common stock, 15,757,505 shares of common stock issuable upon the exercise of all of our outstanding warrants and 2,791,667 shares of common stock issuable upon the exercise of all vested options.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (this “Amendment”) to Terra Tech Corp.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, originally filed with the Securities and Exchange Commission on March 31, 2017 (the “Original Filing”), is being filed for the purpose of including Exhibits 23.1 and 23.2 in connection with the Company's planned filing of a prospectus supplement related to Registration Statement No. 333-210673.
For purposes of this Amendment, and in accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended, Item 15 of the Original Filing has been amended and restated in its entirety. Except as described above, no other changes have been made to the Original Filing, and this Amendment does not modify, amend, or update in any way any of the financial or other information contained in the Original Filing. This Amendment does not reflect events that may have occurred subsequent to the filing date of the Original Filing.
Pursuant to Rule 12b-15 promulgated under the Securities Exchange Act of 1934, as amended, this Amendment also contains new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, which are attached hereto.
Capitalized terms used but not otherwise defined in this Amendment have the meanings giving in the Original Filing.
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PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
| (a) | The following documents are filed as part of this Annual Report: |
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(1) | Financial Statements – See Index on page F-1 |
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Report of Independent Registered Public Accounting Firm - Macias Gini & O’Connell LLP | |
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Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting – Macias Gini & O’Connell LLP | |
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Report of Independent Registered Public Accounting Firm - Tarvaran, Askelson & Company | |
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Consolidated Financial Statements: |
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Consolidated Balance Sheets as of December 31, 2016 and 2015 | |
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Consolidated Statements of Operations for the Years Ended December 31, 2016, 2015 and 2014 | |
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Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2016, 2015 and 2014 | |
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Consolidated Statements of Cash Flows for the Years Ended December 31, 2016, 2015 and 2014 | |
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Notes to Consolidated Financial Statements |
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| (b) | The following exhibits are filed herewith as a part of this report: |
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Exhibit |
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Description |
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2.1 |
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Agreement and Plan of Merger dated February 9, 2012, by and among Terra Tech Corp., a Nevada corporation, TT Acquisitions, Inc., a Nevada corporation, and GrowOp Technology Ltd., a Nevada corporation (1) |
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2.2 |
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Articles of Merger (1) |
| 2.3 |
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Share Exchange Agreement, dated April 24, 2013, by and among the Terra Tech Corp., a Nevada corporation, Edible Garden Corp., a Nevada corporation, and the holders of common stock of Edible Garden Corp. (2) |
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| 2.4 |
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Form of Articles of Share Exchange (2) |
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| 2.5 |
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Agreement and Plan of Merger, dated December 23, 2015, by and among Terra Tech Corp., a Nevada corporation, Generic Merger Sub, Inc., a California corporation, and Black Oak Gallery, a California corporation (3) |
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| 2.6 |
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First Amendment to Agreement and Plan of Merger, dated February 29, 2016, by and among Terra Tech Corp., a Nevada corporation, Generic Merger Sub, Inc., a California corporation, and Black Oak Gallery, a California corporation (3) |
| 2.7 |
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Form of Agreement of Merger, dated March 31, 2016, by and among Generic Merger Sub, Inc., a California corporation and Black Oak Gallery, a California corporation (3) |
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| 3.1 |
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Articles of Incorporation dated July 22, 2008 (4) |
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| 3.2 |
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Certificate of Amendment dated July 8, 2011 (5) |
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| 3.3 |
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Certificate of Change dated July 8, 2011 (5) |
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| 3.4 |
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Certificate of Amendment dated January 27, 2012 (1) |
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3.5 |
Bylaws (4) | |
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3.6 |
Form of Amended and Restated Articles of Incorporation of Black Oak Gallery, a California corporation (3) | |
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3.7 |
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Certificate of Amendment to Certificate of Designation of Series B Preferred Stock, dated September 27, 2016 (6) |
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3.8 |
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Certificate of Amendment to Articles of Incorporation, Dated September 27, 2016 (6) |
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3.9 |
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Certificate of Amendment to Certificate of Designation of Series B Preferred Stock, dated October 3, 2016 (7) |
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3.10 |
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Certificate of Withdrawal of Certificate of Designation of Series G Preferred Stock, dated October 4, 2016 (7) |
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3.11 |
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Certificate of Withdrawal of Certificate of Designation of Series N Preferred Stock, dated October 4, 2016 (7) |
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3.12 |
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Certificate of Withdrawal of Certificate of Designation of Series Q Preferred Stock, dated October 4, 2016 (7) |
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3.13 |
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Certificate of Withdrawal of Certificate of Designation of Series Z Preferred Stock, dated October 4, 2016 (7) |
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4.1 |
Certificate of Designation for Series A Preferred Stock (8) | |
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4.2 |
Amended and Restated Certificate of Designation for Series B Preferred Stock (3) | |
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4.3 |
Form of Common Stock Purchase Warrant (9) | |
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4.4 |
Certificate of Designation for Series Q Preferred Stock (3) | |
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4.5 |
Certificate of Designation for Series Z Preferred Stock (3) | |
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4.6 |
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Certificate of Designation for Series G Preferred Stock (10) |
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4.7 |
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Certificate of Designation for Series N Preferred Stock (10) |
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4.8 |
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Form of 12% Senior Secured Convertible Promissory Note (11) |
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4.9 |
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Form of Common Stock Purchase Warrant (11) |
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4.10 |
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Form of 12% Senior Convertible Promissory Note (7) |
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4.11 |
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Form of 12% Senior Convertible Promissory Note (12) |
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4.12 |
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Form of 12% Senior Convertible Promissory Note (13) |
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10.1 |
Letter agreement dated May 7, 2013, by and between Edible Garden Corp. and Gro-Rite Inc. (14) | |
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10.2 |
Letter agreement dated May 7, 2013, by and between Edible Garden Corp. and NB Plants LLC (14) |
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10.3 |
Letter Agreement dated December 2, 2013, by and between Edible Garden Corp. and Heartland Growers Inc. (certain portions of this exhibit have been omitted based upon a request for confidential treatment) (5) | |
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10.4 |
Form of Independent Director Agreement (15) | |
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10.5 |
Form of Indemnification Agreement (15) | |
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10.6 |
Form of Securities Purchase Agreement dated December 13, 2015, by and among Terra Tech Corp. and purchasers identified on the signature pages thereto (3) | |
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10.7 |
2016 Equity Incentive Plan (3) | |
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10.8 |
Form of Escrow Agreement dated March 31, 2016, by and among Terra Tech Corp., a Nevada corporation, Black Oak Gallery, a California corporation, and the “Shareholder Representative” (3) | |
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10.9 |
Lease dated January 1, 2015, by and between Whitetown Realty, LLC and Edible Garden Corp. (3) | |
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10.10 |
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Guaranty dated January 1, 2015, by Terra Tech Corp. in favor of Whitetown Realty, LLC (3) |
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10.11 |
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Sublease dated March 29, 2016, by and between Black Oak Gallery and CCIG Properties, LLC, dated March 29, 2016 (16) |
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10.12 |
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Agreement of Merger dated March 31, 2016, by and between Generic Merger Sub, Inc. and Black Oak Gallery (10) |
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10.13 |
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Operations and Asset Management Agreement dated March 31, 2016, by and among Platinum Standard, LLC, Black Oak Gallery, and Terra Tech Corp. (10) |
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10.14 |
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Form of Demand Promissory Note, dated March 31, 2016, with Dominion Capital LLC (10) |
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10.15 |
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Form of Demand Promissory Note, dated April 29, 2016, with Dominion Capital LLC (10) |
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10.16 |
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Form of Securities Purchase Agreement, dated as of May 27, 2016, by and among Terra Tech Corp. and the purchasers to be identified on the signature pages thereto (11) |
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10.17 |
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Form of Subsidiary Guarantee, dated as of May 27, 2016 (11) |
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10.18 |
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Form of Security Agreement, dated as of May 27, 2016 (11) |
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10.19 |
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Form of Intellectual Property Security Agreement, dated as of May 27, 2016 (1) |
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10.20 |
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Form of Securities Purchase Agreement, dated as of September 30, 2016 (7) |
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10.21 |
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Form of Securities Purchase Agreement, dated as of October 28, 2016 (12) |
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10.22 |
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Form of Investment Agreement, dated as of November 28, 2016 (17) |
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10.23 |
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Amendment to 12% Convertible Promissory Note, dated as of December 13, 2016 (18) |
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10.24 |
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Form of Securities Purchase Agreement, dated as of December 16, 2016 (13) |
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14.1 |
Code of Ethics (18) | |
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21.1 |
List of Subsidiaries ** | |
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Power of Attorney (set forth on the signature page of this Annual Report on Form 10-K) | |
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101.INS |
XBRL Instance Document ** | |
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101.SCH |
XBRL Taxonomy Extension Schema Document ** | |
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101.CAL |
XBRL Taxonomy Extension Calculation Linkbase Document ** | |
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101.DEF |
XBRL Taxonomy Extension Definition Linkbase Document ** | |
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101.LAB |
XBRL Taxonomy Extension Label Linkbase Document ** | |
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101.PRE |
XBRL Taxonomy Presentation Linkbase Document ** |
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_________
(1) Incorporated by reference to Current Report on Form 8-K (File No. 000-54258), filed with the SEC on February 10, 2012.
(2) Incorporated by reference to Current Report on Form 8-K (File No. 000-54258), filed with the SEC on May 6, 2013.
(3) Incorporated by reference to Annual Report on Form 10-K filed with the SEC on March 29, 2016
(4) Incorporated by reference to Registration Statement on Form S-1 (File No. 333-156421), filed with the SEC on December 23, 2008.
(5) Incorporated by reference to Amendment No. 1 to Registration Statement on Form S-1 (File No. 333-191954), filed with the SEC on December 5, 2013.
(6) Incorporated by reference to Current Report on Form 8-K filed with the SEC on September 28, 2016
(7) Incorporated by reference to Current Report on Form 8-K filed with the SEC on October 7, 2016
(8) Incorporated by reference to Amendment No. 3 to Current Report on Form 8-K (File No. 000-54258), filed with the SEC on April 19, 2012.
(9) Incorporated by reference to Current Report on Form 8-K filed with the SEC on March 2, 2015.
(10) Incorporated by reference to Quarterly Report on Form 10-Q filed with the SEC on May 12, 2016
(11) Incorporated by reference to Current Report on Form 8-K filed with the SEC on June 1, 2016
(12) Incorporated by reference to Current Report on Form 8-K filed with the SEC on October 28, 2016
(13) Incorporated by reference to Current Report on Form 8-K filed with the SEC on December 20, 2016
(14) Incorporated by reference to Current Report on Form 8-K (File No. 000-54258), filed with the SEC on May 28, 2013.
(15) Incorporated by reference to Quarterly Report on Form 10-Q filed with the SEC on November 9, 2015.
(16) Incorporated by reference to Current Report on Form 8-K/A filed with the SEC on April 5, 2016
(17) Incorporated by reference to Current Report on Form 8-K filed with the SEC on November 28, 2016
(18) Incorporated by reference to Current Report on Form 8-K filed with the SEC on December 14, 2016
(19) Incorporated by reference to Current Report on Form 8-K filed with the SEC on November 5, 2015.
________
* filed herewith
** Previously filed as an exhibit to the Annual Report on Form 10-K for the fiscal year ended December 31, 2016
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.
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TERRA TECH CORP. |
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Date: June 27, 2017 |
By: |
/s/ Derek Peterson |
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Derek Peterson |
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President & Chief Executive Officer |
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