UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE ` `
November 5, 2020
Via Email
Ryan A. Montgomery
Chief Executive Officer
Reliv International, Inc.
136 Chesterfield Industrial Blvd.
Chesterfield, Missouri 63005
Re: Reliv International, Inc.
Preliminary Information Statement on Schedule 14C
Filed on October 21, 2020
File No. 0-19932
Schedule 13E-3
Filed on October 22, 2020
File No. 5-48267
Dear Mr. Montgomery:
We have reviewed the above-captioned filings and have the following
comments. In
some of our comments, we may ask you to provide us with information so we may
better
understand your disclosure.
Please respond to this letter by amending your filings, by providing the
requested
information or by advising us when you will provide the requested response. If
you do not
believe our comments apply to your facts and circumstances or do not believe an
amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filings, and any information you
provide in
response to these comments, we may have additional comments. All defined terms
used in this
letter have the same meaning as in the preliminary information statement unless
otherwise
indicated.
Schedule 13E-3
1. We note that the Schedule 13E-3 was filed on a later date than the date
on which the
preliminary Information Statement was filed. We remind you of the
requirement under
General Instruction D.1. of Rule 13e-100 that the Schedule 13E-3 be
filed on the same
day as the associated Schedule 14C.
Ryan A. Montgomery
Reliv International, Inc.
November 5, 2020
Page | 2
2. We note the disclosure that Robert L. Montgomery, the Company s
Chairman, Stephen
M. Merrick, the Company s corporate counsel and Secretary, and Donald
McCain, a
substantial stockholder, will each guarantee a portion of the Company
s obligations
under the Loan. Please advise us how you determined that Messrs.
Montgomery,
Merrick and McCain are not affiliates engaged in the Rule 13e-3
transaction that should
be identified as filing persons for purposes of Schedule 13E-3.
Exhibit A - Preliminary Information Statement on Schedule 14C
General
3. Please revise the Information Statement to clearly mark it as a
preliminary copy. See
Rule 14c-5(d)(1).
4. We note the statement on page 2 that [t]his Information Statement is
dated October 19,
2020 and is first being mailed to our stockholders on or about October
29, 2020, as well
as similar references throughout the Information Statement to those two
dates and to
November 18, 2020 as 20 calendar days following the date this
Information Statement
is first mailed to our stockholders. In your response, please advise
whether this
preliminary Information Statement was already mailed to stockholders.
Refer to Rule
14c-5(a).
Background of the Stock Split, page 13
5. Please provide the legal basis on which you have determined that the
disclosures
required by Item 1015 of Regulation M-A do not apply to the draft
fairness opinion and
valuation analysis that Houlihan presented and provided to the Board on
August 25,
2020.
Effects of the Stock Split, page 18
6. We note that the Company suffered net operating losses in the fiscal
years ended
December 31, 2019 and December 31, 2018, as well as the three months
ended June 30,
2020. To the extent net operating losses exist, or are anticipated to
exist before the date
a definitive Information Statement is filed, please specify the
constituency expected to
become the beneficiary of the Company s future use of any net
operating loss
carryforwards. Please quantify that benefit to the extent practicable.
See Instruction 2
to Item 1013(d) of Regulation M-A.
Ryan A. Montgomery
Reliv International, Inc.
November 5, 2020
Page | 3
Potential Disadvantages of the Stock Split to Stockholders; Accretion in
Ownership and Control
of Certain Stockholders, page 18
7. We note your statement that the Company will have the right to sell
additional shares to
select persons after the Stock Option Transaction. Please revise to
clarify this
statement. For example, the Stock Option Transaction is an
undefined term in the
Information Statement, and it is unclear what right of the Company
and select
persons this statement is referring to.
Fairness of the Stock Split to Stockholders, page 21
8. The factors listed in Instruction 2 to Item 1014 of Regulation M-A are
generally relevant
to each filing person s fairness determination and should be discussed
in reasonable
detail. See Question Nos. 20 and 21 of Release No. 34-17719 (April 13,
1981). Please
revise this section to either include the factor described in clause
(iv) of Instruction 2 to
Item 1014 or explain why such factor was not deemed material or
relevant.
9. We note your statement on page 23 that [t]he proposed transaction
price of $3.75 per
pre-split share does not include any discount for the lack of liquidity
of our Common
Stock or for the minority status of the shares of our Common Stock owned
by
unaffiliated stockholders. With a view towards disclosure, please
provide the basis for
this statement in light of the fact that the transaction price is within
the range of the
market prices of the Common Stock between July 1 and September 28, 2020
and lower
than the closing price on the last trading day prior to the initial
announcement of the
Stock Split, according to the disclosure on page 7. In your response,
please address the
fact that these market prices (1) likely reflect an illiquidity discount
for the Common
Stock based on publicly available information regarding trading volume
and (2)
potentially reflect a minority discount for the Common Stock given the
fact that the
Company s directors, executive officers and insiders currently
beneficially own
approximately 40% of the outstanding shares of Common Stock.
Conduct of the Company s Business After the Stock Split, page 30
10. We note the statements throughout the Information Statement that a
stockholder could
decide whether to remain a stockholder or be cashed out by buying or
selling shares in
the stock market so as to hold more or less than 2,000 shares of Common
Stock
immediately prior to the Stock Split. Notwithstanding your
disclosure in Item 6(c) of
the Schedule 13E-3 and in the last paragraph of this section on page 31
of the
Information Statement, please clarify what plans the Company has, if
any, in the event
that shareholders buy and sell shares in the stock market such that the
Stock Split does
not result in less than 300 record holders of your Common Stock on a
post-split basis.
Ryan A. Montgomery
Reliv International, Inc.
November 5, 2020
Page | 4
Reservation of Rights, page 31
11. We note the disclosure that the Board reserves the right, in its
discretion, to (i) abandon
the Stock Split prior to the proposed Effective Date, (ii) change the
Redemption Price or
(iii) change the ratio of the Stock Split ( Split Ratio ) from
2,000 to a different figure
(between a range of a minimum Split Ratio of 500 to a maximum Split
Ratio of 3,000) if
it determines that abandoning the Stock Split, changing the Redemption
Price or
changing the Split Ratio is in the best interests of the Company.
Please disclose how
the Board will decide whether to abandon the Stock Split or change the
Redemption
Price or Split Ratio, including the factors upon which those decisions
would be based, if
there are any factors that exist in addition to those set forth in the
last paragraph on page
31. Please also disclose whether there is a price range within which
the Board may
change the Redemption Price (similar to the minimum and maximum Split
Ratios set
forth in the above-quoted statement).
Financial Statements, page 32
12. With a view towards revised disclosure, please explain how the
financial statements in
the Information Statement satisfy Item 13 of Schedule 13E-3. For
example, Item
1010(a) of Regulation M-A requires the furnishing of audited financial
statements for
the two fiscal years required to be filed with the company s most
recent annual report,
and the Company s most recent annual report on Form 10-K reflects
audited financial
statements for the fiscal years ending on December 31, 2019 and
December 31, 2018. In
addition, Item 1010(b) of Regulation M-A requires, among other things,
the furnishing
of unaudited comparative year-to-date statements of cash flows required
to be filed in
the company s most recent quarterly report, and the Company s most
recent quarterly
report on Form 10-Q reflects statements of cash flows for the six
months ended June 30,
2020 and June 30, 2019. The Information Statement, however, includes
only an
unaudited balance sheet as of June 30, 2020, an audited balance sheet
as of December
31, 2019 and unaudited statements of net income (loss) and
comprehensive income
(loss) for the three months and six months ended June 30, 2020 and June
30, 2019.
13. Please provide the disclosure required by Item 1010(a)(4) of Regulation
M-A.
Security Ownership of Certain Beneficial Owners and Management, page 35
14. We note that in footnote (3) to the beneficial ownership table,
Renaissance Technologies
LLC s beneficial ownership appears to have been determined by
reference to its
Schedule 13F rather than its Schedule 13G. However, Instruction 3
to Item 403 of
Regulation S-K generally allows a registrant to determine its
shareholders beneficial
ownership solely by reference to a Schedule 13D or 13G, not a Form 13F.
Please revise
the beneficial ownership table to refer to Renaissance Technologies LLC
s Schedule
13G, or advise.
Ryan A. Montgomery
Reliv International, Inc.
November 5, 2020
Page | 5
Available Information, page 36
15. Please confirm that the Company will post the Information Statement
on a specified,
publicly-accessible Internet Web site (other than the Commission s
EDGAR Web site)
and provide stockholders with a notice informing them that the
materials are available
and explaining how to access those materials. Please refer to Release
34-56135
available at http://www.sec.gov/rules/final/2007/34-56135.pdf and
Rule 14c-2(d).
Annex B-1 Opinion of Houlihan Capital
16. We note that Houlihan s opinion states that it is based in part
upon [m]anagement s
three-year, pro forma financial projections for the years ending
December 31, 2020
through 2022. We further note that the Board relied, in part, on
Houlihan s opinion in
determining that the Stock Split is fair to your unaffiliated
stockholders. Please disclose
management s financial projections in the Information Statement.
See Item 1015(b)(6)
of Regulation M-A.
We remind you that the filing person is responsible for the accuracy and
adequacy of its
disclosures, notwithstanding any review, comments, action or absence of action
by the staff.
Please direct any questions to me at (202) 551-8729.
Sincerely,
/s/ Valian A.
Afshar
Valian A. Afshar
Special Counsel
Office of
Mergers and Acquisitions
cc: Jude M. Sullivan, Esq.
Howard & Howard Attorneys PLLC