UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
BE ACTIVE HOLDINGS, INC.
(Name of Issuer)
Shares of Common Stock, $0.0001 Par Value
(Title of Class of Securities)
073301103
(CUSIP Number)
Joseph Rienzi
Interim President
Be Active Holdings, Inc.
1010 Northern Blvd.
Great Neck, NY 11021
(212)-736-2310
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 2, 2015
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Cusip No. 073301103
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1.
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NAME OF REPORTING PERSONS Joseph Rienzi
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) ¨
(b) ¨
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
PF
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7.
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SOLE VOTING POWER
31,922,889 (1)
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8.
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SHARED VOTING POWER
50.1% (2)
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9.
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SOLE DISPOSITIVE POWER
31,922,889
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10.
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SHARED DISPOSITIVE POWER
0
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,922,889 (1)
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.1% (2)
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14.
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TYPE OF REPORTING PERSON
IN
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(1)
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Does not include 1,000,000 shares of Series D Convertible Preferred Stock of the Issuer (“Series D Stock”) which, pursuant to the terms of the Certificate of Designation of such Series D Stock, together with the other outstanding shares of Series D Stock has voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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(2)
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Represents 1,000,000 shares of Series D Stock having voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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Cusip No. 073301103
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1.
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NAME OF REPORTING PERSONS Saverio Pugliese
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) ¨
(b) ¨
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
PF
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7.
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SOLE VOTING POWER
32,672,887 (1)
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8.
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SHARED VOTING POWER
51% (2)
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9.
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SOLE DISPOSITIVE POWER
32,672,887
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10.
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SHARED DISPOSITIVE POWER
0
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,672,887 (1)
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.1% (2)
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14.
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TYPE OF REPORTING PERSON
IN
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(1)
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Does not include 1,000,000 shares of Series D Stock which, pursuant to the terms of the Certificate of Designation of such Series D Stock, together with the other outstanding shares of Series D Stock has voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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(2)
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Represents 1,000,000 shares of Series D Stock having voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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Cusip No. 073301103
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1.
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NAME OF REPORTING PERSONS David Wolfson
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) ¨
(b) ¨
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
PF
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7.
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SOLE VOTING POWER
6,839,556 (1)
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8.
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SHARED VOTING POWER
50.1% (2)
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9.
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SOLE DISPOSITIVE POWER
6,839,556
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10.
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SHARED DISPOSITIVE POWER
0
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,839,556 (1)
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
50.1% (2)
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14.
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TYPE OF REPORTING PERSON
IN
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(1)
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Does not include 1,000,000 shares of Series D Convertible Preferred Stock of the Issuer which, pursuant to the terms of the Certificate of Designation of such Series D Stock, together with the other outstanding shares of Series D Stock has voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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(2)
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Represents 1,000,000 shares of Series D Stock having voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
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Item 1. Security and Issuer
This Statement on Schedule 13D relates to the common stock, par value $0.0001 per share (the “Common Stock”), of Be Active Holdings, Inc., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 1010 Northern Boulevard, Great Neck, New York 11021.
Item 2. Identity and Background
(a) This Schedule 13D is being filed by Joseph Rienzi, Saverio Pugliese and David Wolfson (each a “Reporting Person” and collectively, the “Reporting Persons”) pursuant to their agreement to the joint filing of this Schedule 13D.
(b) The Reporting Persons’ business address is 1010 Northern Boulevard, Great Neck, New York 11021.
(c) Mr. Rienzi’s principal occupation is serving as Interim President, Secretary and a director of the Issuer. Mr. rienzi is also the Vice President of Rienzi Foods, Inc. Mr. Pugliese’s principal occupation is serving as Vice President and a director of the Issuer. Mr. Wolfson's principal occupation is serving as Chief Financial Officer and a director of the Issuer. Mr. Wolfson is also the managing partner with the accounting firm of Wolfson Berbenich & Company CPA's, LLP with an address of 1010 Northern Blvd. Rm. 306, Great Neck, NY 11021. The Issuer produces frozen yogurt and ice cream products. The Issuer’s address is 1010 Northern Boulevard, Great Neck, New York 11021.
(d) During the last five years, none of the Reporting Persons have been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons have been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) The Reporting Persons are citizens of the United States.
Item 3. Source and Amount of Funds or Other Consideration
On March 4, 2015, each of Messrs. Rienzi, Pugliese and Wolfson were issued 1,000,000 shares of Series D Convertible Preferred Stock of the Issuer (“Series D Stock”) which, pursuant to the terms of the Certificate of Designation of such Series D Stock, together have voting rights equal to 50.1% of the outstanding voting capital of the Issuer.
Item 4. Purpose of Transaction
The Reporting Persons do not have any other plans or proposals that would relate to or result in any of the matters set forth below, except that in connection with a $250,000 financing of the Issuer which closed on September 22, 2015 (as described in the Issuer’s Current Report on Form 8-K filed with the SEC on September 24, 2015), the Issuer agreed to increase the conversion rate of its outstanding Series C Preferred Stock from one share to five shares of common stock and to effectuate a reverse stock split prior to November 20, 2015.
(a) The acquisition by any person of additional securities of the Company, or the disposition of securities of the Company;
(b) An extraordinary corporate transaction, such as a merger, reorganization, or liquidation, involving the Company or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company or any of its subsidiaries;
(d) Any change in the present board of directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy of the Company;
(f) Any other material change in the Company's business or corporate structure, including but not limited to, if the Company is a registered closed-end investment company, any plans or proposals to make any changes in its investment policy for which a vote is required by Section 13 of the Investment Company Act of 1940;
(g) Changes in the Company's charter, bylaws, or instruments corresponding thereto or other actions which may impede the acquisition of control of the issuer by any person;
(h) Causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
(a) As of October 2, 2015, Messrs. Rienzi, Pugliese and Wolfson are deemed to be the beneficial owner of 31,922,889 shares, 32,672,887 shares and 6,839,556 shares of Common Stock, representing 6.507%, 6.660% and 1.394% respectively, of the issued and outstanding Common Stock based upon 490,595,671 shares of Common Stock outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q as filed with the Securities and Exchange Commission on August 13, 2015. Messrs. Rienzi, Pugliese and Wolfson each also beneficially own 1,000,000 shares of Series D Stock representing together 50.1% of voting stock of the Issuer.
(b) Mr. Rienzi has the sole power to vote or to direct the vote and to dispose of or to direct the disposition of 31,922,889 shares of Common Stock. Mr. Pugliese has the sole power to vote or to direct the vote and to dispose of or to direct the disposition of 32,672,887 shares of Common Stock. Mr. Wolfson has the sole power to vote or to direct the vote and to dispose of or to direct the disposition of 6,839,556 shares of Common Stock. The foregoing number of shares do not include 1,000,000 shares of Series D Stock beneficially owned by each of Messrs. Rienzi, Pugliese and Wolfson representing together 50.1% of voting stock of the Issuer.
(c) During the past 60 days, the Reporting Persons affected no transactions in the Issuer’s Common Stock.
(d) No other entity or person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock that are held by the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Other than as described in Item 3 above, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Persons and any other person with respect to any securities of the Issuer.
Item 7. Material to Be Filed as Exhibits
| Exhibit 1 |
Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock |
| Exhibit 2 |
Joint Filing Agreement, dated October 9, 2015 by and among the Reporting Persons |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: October 9, 2015
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/s/ Joseph Rienzi
Joseph Rienzi
/s/ Saverio Pugliese
Saverio Pugliese
/s/ David Wolfson
David Wolfson
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Exhibit 1
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS OF
SERIES D CONVERTIBLE PREFERRED STOCK
Be Active Holdings, Inc., a Delaware corporation (the "Corporation"), pursuant to Section 151 of the General Corporate Law of the State of Delaware and in accordance with the provisions of Section 103 thereof, does hereby submit the following:
WHEREAS, the Board of Directors is authorized within the limitations and restrictions stated in the Amended and Restated Certificate of Incorporation of the Corporation, as amended, to provide by resolution or resolutions for the issuance of 150,000,000 shares of Preferred Stock, par value $0.0001 per share, of the Corporation, in such series and with such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions as the Corporation’s Board of Directors shall fix by resolution or resolutions providing for the issuance thereof duly adopted by the Board of Directors; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to authorize and fix the terms of a series of Preferred Stock and the number of shares constituting such series;
NOW, THEREFORE, BE IT RESOLVED:
Section 1. Designation and Authorization. The Corporation shall be authorized to issue One Million Two Hundred Thousand (1,200,000) shares of Series D Convertible Preferred Stock, par value $0.0001 per share (the “Series D Preferred Stock”).
Section 2. Stated Value. Each share of Series D Preferred Stock shall have a stated value of $0.0001 per share (the “Stated Value”).
Section 3. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holder of record of the Series D Preferred Stock shall not be entitled to receive any assets of the Corporation available for distribution to its stockholders.
Section 4. Voting. In addition to the other rights provided in this Certificate of Designation, by agreement or by law, the holders of the Series D Preferred Stock and the holders of the Common Stock shall vote together as a single class on all actions to be taken by the shareholders of the Corporation. At all meetings of the shareholders of the Corporation and in the case of any actions of shareholders in lieu of a meeting, each holder of the Series D Preferred Stock shall have that number of votes on all matters submitted to the shareholders that is equal to the greater of (i) One hundred (100) votes for each one share of Series D Preferred Stock and (ii) such number of votes per share of Series D Preferred Stock that, when added to the votes per share of all other shares of Series D Preferred Stock, shall equal 50.1% of the outstanding voting capital (taking into account the effective outstanding voting rights of the Series D Preferred Stock), as of the record date for the vote, or, if no such record date is established, as of the date such vote is taken or any written consent of stockholders is solicited at the record date for the determination of the shareholders entitled to vote on such matters or, if no such record date is established, at the date such vote is taken or any written consent of such shareholders is effected.
Section 5. Conversion.
(a) Conversion Right. Each holder of Series D Preferred Stock may, from time to time, convert any or all of such holder’s shares of Series D Preferred Stock into fully paid and non-assessable shares of Common Stock in an amount equal to one share of the Corporation’s common stock (the “Common Stock”) for each one (1) share of Series D Preferred Stock surrendered.
(b) Conversion Procedure. In order to exercise the conversion privilege under this Section 5, the holder of any shares of Series D Preferred Stock to be converted shall give written notice to the Corporation at its principal office that such holder elects to convert such shares of Series D Preferred Stock or a specified portion thereof into shares of Common Stock as set forth in such notice (the “Conversion Notice”, and such date of delivery of the Conversion Notice to the Corporation, the “Conversion Notice Delivery Date”). Within three (3) Trading Days following the Conversion Notice Delivery Date, the Corporation shall issue and deliver a certificate or certificates representing the number of shares of Common Stock determined pursuant to this Section 5 (the “Share Delivery Date”). In case of conversion under this Section 5 of only a part of the shares of Series D Preferred Stock represented by a certificate surrendered to the Corporation, the Corporation shall issue and deliver a new certificate for the number of shares of Series D Preferred Stock which have not been converted, upon receipt of the original certificate or certificates representing shares of Series D Preferred Stock so converted. Until such time as the certificate or certificates representing shares of Series D Preferred Stock which have been converted are surrendered to the Corporation and a certificate or certificates representing the Common Stock into which such shares of Series D Preferred Stock have been converted have been issued and delivered, the certificate or certificates representing the shares of Series D Preferred Stock which have been converted shall represent the shares of Common Stock into which such shares of Series D Preferred Stock have been converted. The Corporation shall pay all documentary, stamp or similar issue or transfer tax due on the issue of shares of Common Stock issuable upon conversion of the Series D Preferred Stock. For purposes of this Certificate of Designation, (i) a “Trading Day” means (A) a day on which the Common Stock is traded on a Trading Market (as defined below), or (B) if the Common Stock is not listed on a Trading Market, a day on which the Common Stock is traded on the over the counter market, as reported by the OTC Bulletin Board (the “Bulletin Board”), or (C) if the Common Stock is not quoted on the Bulletin Board, a day on which prices for the Common Stock are reported on the OTCQB published by OTC Market Group, LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed, quoted or reported as set forth in (A), (B) and (C) hereof, then Trading Day shall mean a business day and (ii) “Trading Market” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NASDAQ Global Select Market, the NASDAQ Global Market, The NASDAQ Capital Market, the New York Stock Exchange or the NYSE MKT, LLC.
(c) Buy-In. If, by the Share Delivery Date, the Corporation fails for any reason to deliver the shares of Common Stock issuable upon conversion of the Series D Preferred Stock, as set forth in the Conversion Notice, and after such Share Delivery Date, the converting holder purchases, in an arm’s length open market transaction or otherwise, shares of Common Stock (the “Covering Shares”) in order to make delivery in satisfaction of a sale of Common Stock by the converting holder (the “Sold Shares”), which delivery such converting holder anticipated to make using the shares to be issued upon such conversion (a “Buy-In”), the converting holder shall have the right to require the Corporation to pay to the converting holder the Buy-In Adjustment Amount. The Corporation shall pay the Buy-In Adjustment Amount to the converting holder in immediately available funds immediately upon demand by the converting holder. For purposes of this Certificate of Designation, the term “Buy-In Adjustment Amount” means the amount equal to the excess, if any, of (i) the converting holder’s total purchase price (including brokerage commissions, if any) for the Covering Shares associated with a Buy-In, over (ii) the net proceeds (after brokerage commissions, if any) received by the converting holder from the sale of the Sold Shares. By way of illustration and not in limitation of the foregoing, if the converting holder purchases shares of Common Stock having a total purchase price (including brokerage commissions) of $11,000 to cover a Buy-In, with respect to shares of Common Stock it sold for net proceeds of $10,000, the Buy-In Adjustment Amount which the Corporation will be required to pay to the converting holder will be $1,000.
Section 6. Other Provisions.
(a) Reservation of Common Stock. The Corporation shall at all times reserve from its authorized Common Stock a sufficient number of shares to provide for conversion of all Series D Preferred Stock on the Conversion Date.
(b) Record Holders. The Corporation and its transfer agent, if any, for the Series D Preferred Stock may deem and treat the record holder of any shares of Series D Preferred Stock as reflected on the books and records of the Corporation as the sole true and lawful owner thereof for all purposes, and neither the Corporation nor any such transfer agent shall be affected by any notice to the contrary.
Restriction and Limitations. (i) Except as expressly provided herein or as required by law so long as any shares of Series D Preferred Stock remain outstanding, the Corporation shall not, without the vote or written consent of the holders of at least a majority of the then outstanding shares of the Series D Preferred Stock, take any action which would adversely and materially affect any of the preferences, limitations or relative rights of the Series D Preferred Stock.
Section 7. Stock Dividends and Stock Splits. If the Corporation, at any time while the Series D Preferred Stock is outstanding: (A) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation pursuant to the Series D Preferred Stock), (B) subdivide outstanding shares of Common Stock into a larger number of shares, (C) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issue by reclassification of shares of the Common Stock any shares of capital stock of the Corporation, each share of Series D Preferred Stock shall receive such consideration as if such number of shares of Series D Preferred had been, immediately prior to such foregoing dividend, distribution, subdivision, combination or reclassification, the holder of the number of shares of Common Stock into which it could convert at such time. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
Section 8. Equal Treatment of Holders. No consideration (including any modification of this Certificate of Designation or related transaction document) shall be offered or paid to any person or entity to amend or consent to a waiver or modification of any provision of this Certificate of Designation or related transaction document unless the same consideration is also offered to all of holders of the outstanding shares of Series D Preferred Stock. For clarification purposes, this provision constitutes a separate right granted to each holder by the Corporation and negotiated separately by each holder, and is intended for the Corporation to treat all holders of the Series D Preferred Stock as a class and shall not in any way be construed as such holders acting in concert or as a group with respect to the purchase, disposition or voting of the Series D Preferred Stock or otherwise
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its President on this , 2014.
By:___________________________
Name: Saverio Pugliese
Title: President
Exhibit 2
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D, dated March 2, 2015 (including amendments thereto) with respect to the common stock of Be Active Holdings, Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.
Dated: October 9, 2015
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/s/ Joseph Rienzi
Joseph Rienzi
/s/ Saverio Pugliese
Saverio Pugliese
/s/ David Wolfson
David Wolfson
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