UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
| [X] | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period endedSeptemberJune 30, 20192020.
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:001-33899
Digital Ally, Inc.
(Exact name of registrant as specified in its charter)
| Nevada | 20-0064269 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
9705 Loiret15612 College Blvd, Lenexa, KS 66219
(Address of principal executive offices) (Zip Code)
(913) 814-7774
(Registrant’s telephone number, including area code)
9705 Loiret Blvd., Lenexa, KS 66219
(Former name, former address and former fiscal year, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of exchange on which registered | ||
| Common stock, $0.001 par value | DGLY | the Nasdaq Capital Market, LLC |
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 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 every Interactive Data File required to be submitted 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 such files).
Yes [X] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of Exchange Act.
| Large accelerated filer [ ] | Accelerated filer [ ] | |
| Non-accelerated filer [ ] (Do not check if a smaller reporting company) | Smaller reporting company [X] | |
| Emerging growth company [ ] |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes [ ] No [X]
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date:
| Class | Outstanding at | |
| Common Stock, $0.001 par value per share |
FORM 10-Q
DIGITAL ALLY, INC.
SEPTEMBERJUNE 30, 20192020
| 2 |
PART I – FINANCIAL INFORMATION
Item 1 – Financial Statements.
CONDENSED CONSOLIDATED BALANCE SHEETS
SEPTEMBERJUNE 30, 20192020 AND DECEMBER 31, 20182019
| (Unaudited) | ||||||||||||||||
September 30, 2019 | December 31, 2018 | June 30, 2020 (Unaudited) | December 31, 2019 | |||||||||||||
| Assets | ||||||||||||||||
| Current assets: | ||||||||||||||||
| Cash and cash equivalents | $ | 1,272,935 | $ | 3,598,807 | $ | 16,165,550 | $ | 359,685 | ||||||||
| Accounts receivable-trade, less allowance for doubtful accounts of $123,224 – 2019 and $70,000-2018 | 1,762,169 | 1,847,886 | ||||||||||||||
| Accounts receivable-trade, less allowance for doubtful accounts of $123,224 – 2020 and 2019 | 1,080,884 | 1,071,018 | ||||||||||||||
| Accounts receivable-other | 468,629 | 382,412 | 538,350 | 514,730 | ||||||||||||
| Inventories, net | 6,381,713 | 6,999,060 | 4,752,285 | 5,280,412 | ||||||||||||
| Income tax refund receivable, current | 44,603 | 44,603 | 44,650 | 44,650 | ||||||||||||
| Prepaid expenses | 477,023 | 429,403 | 574,456 | 381,090 | ||||||||||||
| Total current assets | 10,407,072 | 13,302,171 | 23,156,175 | 7,651,585 | ||||||||||||
| Furniture, fixtures and equipment, net | 141,987 | 247,541 | 208,291 | 197,063 | ||||||||||||
| Intangible assets, net | 434,933 | 486,797 | 431,006 | 413,268 | ||||||||||||
| Operating lease right of use assets | 167,443 | — | 769,635 | 122,459 | ||||||||||||
| Income tax refund receivable | 45,397 | 45,397 | ||||||||||||||
| Other assets | 404,253 | 256,749 | 452,519 | 532,500 | ||||||||||||
| Total assets | $ | 11,601,085 | $ | 14,338,655 | $ | 25,017,626 | $ | 8,916,875 | ||||||||
| Liabilities and Stockholders’ Deficit | ||||||||||||||||
| Liabilities and Stockholders’ Equity (Deficit) | ||||||||||||||||
| Current liabilities: | ||||||||||||||||
| Accounts payable | $ | 2,075,213 | $ | 784,599 | $ | 1,535,865 | $ | 2,339,985 | ||||||||
| Accrued expenses | 1,077,482 | 2,080,667 | 838,747 | 845,881 | ||||||||||||
| Secured convertible notes, at fair value-current portion | 1,606,305 | — | ||||||||||||||
| Current portion of operating lease obligations | 248,603 | — | ||||||||||||||
| Contract liabilities-current | 1,698,560 | 1,748,789 | ||||||||||||||
| Operating lease obligations – Current | 44,308 | 159,160 | ||||||||||||||
| Contract liabilities – Current | 1,756,402 | 1,707,943 | ||||||||||||||
| Proceeds investment agreement obligation, at fair value – Current | 3,615,000 | — | ||||||||||||||
| Debt obligations – Current | 552,258 | 1,827,748 | ||||||||||||||
| Income taxes payable | 5,833 | 3,689 | 1,158 | 5,934 | ||||||||||||
| Total current liabilities | 6,711,996 | 4,617,744 | 8,343,738 | 6,886,651 | ||||||||||||
| Long-term liabilities: | ||||||||||||||||
| Proceeds investment agreement, at fair value- less current portion | 6,417,000 | 9,142,000 | ||||||||||||||
| Contract liabilities-long term | 1,830,471 | 1,991,091 | ||||||||||||||
| Proceeds investment agreement obligation, at fair value – Long-term | — | 6,500,000 | ||||||||||||||
| Operating lease obligation – Long-term | 731,334 | 44,460 | ||||||||||||||
| Debt obligations – Long-term | 1,016,642 | — | ||||||||||||||
| Contract liabilities – Long-term | 1,580,085 | 1,803,143 | ||||||||||||||
| Total liabilities | 14,959,467 | 15,750,835 | 11,671,799 | 15,234,254 | ||||||||||||
| Commitments and contingencies | ||||||||||||||||
| Stockholder’s Deficit: | ||||||||||||||||
| Common stock, $0.001 par value; 50,000,000 shares authorized; shares issued: 12,079,095 – 2019 and 10,445,445 – 2018 | 12,079 | 10,445 | ||||||||||||||
| Stockholders’ Equity (Deficit): | ||||||||||||||||
| Common stock, $0.001 par value per share; 50,000,000 shares authorized; shares issued: 26,645,118 – June 30, 2020 and 12,079,095 – December 31, 2019 | 26,645 | 12,079 | ||||||||||||||
| Additional paid in capital | 82,748,400 | 78,117,507 | 105,697,031 | 83,216,387 | ||||||||||||
| Treasury stock, at cost (63,518 shares) | (2,157,226 | ) | (2,157,226 | ) | (2,157,226 | ) | (2,157,226 | ) | ||||||||
| Accumulated deficit | (83,961,635 | ) | (77,382,906 | ) | (90,220,623 | ) | (87,388,619 | ) | ||||||||
| Total stockholders’ deficit | (3,358,382 | ) | (1,412,180 | ) | ||||||||||||
| Total liabilities and stockholders’ deficit | $ | 11,601,085 | $ | 14,338,655 | ||||||||||||
| Total stockholders’ equity (deficit) | 13,345,827 | (6,317,379 | ) | |||||||||||||
| Total liabilities and stockholders’ equity (deficit) | $ | 25,017,626 | $ | 8,916,875 | ||||||||||||
See Notes to the Unaudited Condensed Consolidated Financial Statements.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE AND NINESIX MONTHS ENDED
SEPTEMBERJUNE 30, 20192020 AND 20182019
(Unaudited)
Three months ended | Nine months ended | Three months ended June 30, | Six months ended June 30, | |||||||||||||||||||||||||||||
| 2019 | 2018 | 2019 | 2018 | 2020 | 2019 | 2020 | 2019 | |||||||||||||||||||||||||
| Revenue: | ||||||||||||||||||||||||||||||||
| Product | $ | 2,173,257 | $ | 2,334,863 | $ | 6,039,445 | $ | 7,319,676 | $ | 1,053,581 | $ | 1,945,724 | $ | 2,820,116 | $ | 3,866,188 | ||||||||||||||||
| Service and other | 749,891 | 543,196 | 1,981,482 | 1,593,446 | 678,611 | 601,259 | 1,337,820 | 1,231,591 | ||||||||||||||||||||||||
| Total revenue | 2,923,148 | 2,878,059 | 8,020,927 | 8,913,122 | 1,732,192 | 2,546,983 | 4,157,936 | 5,097,779 | ||||||||||||||||||||||||
| Cost of revenue: | ||||||||||||||||||||||||||||||||
| Product | 1,601,913 | 1,592,072 | 4,333,812 | 4,672,432 | 1,165,528 | 1,468,828 | 2,154,774 | 2,731,899 | ||||||||||||||||||||||||
| Service and other | 132,973 | 108,698 | 366,301 | 335,540 | 173,906 | 127,343 | 345,374 | 233,328 | ||||||||||||||||||||||||
| Total cost of revenue | 1,734,886 | 1,700,770 | 4,700,113 | 5,007,972 | 1,339,434 | 1,596,171 | 2,500,148 | 2,965,227 | ||||||||||||||||||||||||
| Gross profit | 1,188,262 | 1,177,289 | 3,320,814 | 3,905,150 | 392,758 | 950,812 | 1,657,788 | 2,132,552 | ||||||||||||||||||||||||
| Selling, general and administrative expenses: | ||||||||||||||||||||||||||||||||
| Research and development expense | 517,010 | 323,981 | 1,562,086 | 1,097,861 | 359,697 | 582,905 | 845,445 | 1,045,076 | ||||||||||||||||||||||||
| Selling, advertising and promotional expense | 877,218 | 711,506 | 2,871,154 | 2,097,919 | 486,649 | 1,237,947 | 1,169,030 | 1,993,936 | ||||||||||||||||||||||||
| Stock-based compensation expense | 405,579 | 669,480 | 1,715,972 | 1,757,227 | 376,738 | 585,195 | 688,415 | 1,310,393 | ||||||||||||||||||||||||
| General and administrative expense | 1,668,902 | 1,382,038 | 5,970,565 | 4,272,484 | 1,312,828 | 1,977,123 | 3,025,417 | 4,301,663 | ||||||||||||||||||||||||
| Patent litigation settlement | — | — | (6,000,000 | ) | — | — | (6,000,000 | ) | — | (6,000,000 | ) | |||||||||||||||||||||
| Total selling, general and administrative expenses | 3,468,709 | 3,087,005 | 6,119,777 | 9,225,491 | 2,535,912 | (1,616,830 | ) | 5,728,307 | 2,651,068 | |||||||||||||||||||||||
| Operating loss | (2,280,447 | ) | (1,909,716 | ) | (2,798,963 | ) | (5,320,341 | ) | ||||||||||||||||||||||||
| Operating (loss) income | (2,143,154 | ) | 2,567,642 | (4,070,519 | ) | (518,516 | ) | |||||||||||||||||||||||||
Other income (expense) | ||||||||||||||||||||||||||||||||
| Interest income | 6,667 | 2,206 | 30,279 | 4,507 | 15,609 | 5,628 | 21,869 | 23,612 | ||||||||||||||||||||||||
| Interest expense | (37,037 | ) | (1,083,317 | ) | (37,037 | ) | (1,366,520 | ) | (25,636 | ) | — | (333,196 | ) | — | ||||||||||||||||||
| Change in warrant derivative liabilities | — | (9,799 | ) | — | (319,105 | ) | ||||||||||||||||||||||||||
| Secured convertible notes issuance expense | (89,148 | ) | — | (89,148 | ) | (220,312 | ) | (34,906 | ) | — | (34,906 | ) | — | |||||||||||||||||||
| Loss on the extinguishment of secured convertible debentures | — | (100,000 | ) | — | (600,000 | ) | ||||||||||||||||||||||||||
| Change in fair value of proceeds investment agreement | (177,000 | ) | (98,487 | ) | (3,275,000 | ) | (98,487 | ) | 2,578,000 | (2,961,000 | ) | 2,885,000 | (3,098,000 | ) | ||||||||||||||||||
| Change in fair value of secured convertible notes | (408,860 | ) | — | (408,860 | ) | — | (887,807 | ) | — | (1,300,252 | ) | — | ||||||||||||||||||||
| Change in fair value of secured convertible debentures | — | (1,466,467 | ) | — | (2,296,444 | ) | ||||||||||||||||||||||||||
| Total other income (expense) | 1,645,260 | (2,955,372 | ) | 1,238,515 | (3,074,388 | ) | ||||||||||||||||||||||||||
| Loss before income tax benefit | (2,985,825 | ) | (4,665,580 | ) | (6,578,729 | ) | (10,216,702 | ) | (497,894 | ) | (387,730 | ) | (2,832,004 | ) | (3,592,904 | ) | ||||||||||||||||
| Income tax benefit | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Net loss | $ | (2,985,825 | ) | $ | (4,665,580 | ) | $ | (6,578,729 | ) | $ | (10,216,702 | ) | $ | (497,894 | ) | $ | (387,730 | ) | $ | (2,832,004 | ) | $ | (3,592,904 | ) | ||||||||
| Net loss per share information: | ||||||||||||||||||||||||||||||||
| Basic | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.03 | ) | $ | (0.03 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||||||
| Diluted | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.03 | ) | $ | (0.03 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||||||
| Weighted average shares outstanding: | ||||||||||||||||||||||||||||||||
| Basic | 11,637,289 | 7,725,877 | 11,296,999 | 7,295,098 | 18,976,724 | 11,305,248 | 16,430,214 | 11,124,222 | ||||||||||||||||||||||||
| Diluted | 11,637,289 | 7,725,877 | 11,296,999 | 7,295,098 | 18,976,724 | 11,305,248 | 16,430,214 | 11,124,222 | ||||||||||||||||||||||||
See Notes to the Unaudited Condensed Consolidated Financial Statements.
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)
FOR THE THREE AND NINESIX MONTHS ENDED SEPTEMBERJUNE 30, 20192020 AND 2018
2019
(Unaudited)
| Additional | ||||||||||||||||||||||||||||||||||||||||||||||||
| Common Stock | Additional Paid in | Treasury | Accumulated | Common Stock | Paid In | Treasury | Accumulated | |||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Capital | stock | deficit | Total | Shares | Amount | Capital | stock | deficit | Total | |||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2018 | 10,445,445 | $ | 10,445 | $ | 78,117,507 | $ | (2,157,226 | ) | $ | (77,382,906 | ) | $ | (1,412,180 | ) | 10,445,445 | $ | 10,445 | $ | 78,117,507 | $ | (2,157,226 | ) | $ | (77,382,906 | ) | $ | (1,412,180 | ) | ||||||||||||||||||||
| Stock-based compensation | — | — | 725,198 | — | — | 725,198 | — | — | 725,198 | — | — | 725,198 | ||||||||||||||||||||||||||||||||||||
| Restricted common stock grant | 522,110 | 522 | (522 | ) | — | — | — | 522,110 | 522 | (522 | ) | — | — | — | ||||||||||||||||||||||||||||||||||
| Restricted common stock forfeitures | (2,500 | ) | (2 | ) | 2 | — | — | — | (2,500 | ) | (2 | ) | 2 | — | — | — | ||||||||||||||||||||||||||||||||
| Issuance of common stock upon exercise of common stock purchase warrants | 161,000 | 161 | 515,839 | — | — | 516,000 | 161,000 | 161 | 515,839 | — | — | 516,000 | ||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (3,205,174 | ) | (3,205,174 | ) | — | — | — | — | (3,205,174 | ) | (3,205,174 | ) | ||||||||||||||||||||||||||||||||
| Balance,March 31, 2019 | 11,126,055 | 11,126 | 79,358,024 | (2,157,226 | ) | (80,588,080 | ) | (3,376,156 | ) | 11,126,055 | 11,126 | 79,358,024 | (2,157,226 | ) | (80,588,080 | ) | (3,376,156 | ) | ||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 585,195 | — | — | 585,195 | — | — | 585,195 | — | — | 585,195 | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon exercise of common stock purchase warrants | 368,000 | 368 | 1,047,632 | — | — | 1,048,000 | 368,000 | 368 | 1,047,632 | — | — | 1,048,000 | ||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (387,730 | ) | (387,730 | ) | — | — | — | — | (387,730 | ) | (387,730 | ) | ||||||||||||||||||||||||||||||||
| Balance, June 30, 2019 | 11,494,055 | 11,494 | 80,990,851 | (2,157,226 | ) | (80,975,810 | ) | (2,130,691 | ) | 11,494,055 | $ | 11,494 | $ | 80,990,851 | $ | (2,157,226 | ) | $ | (80,975,810 | ) | $ | (2,130,691 | ) | |||||||||||||||||||||||||
| Stock-based compensation | — | — | 405,579 | — | — | 405,579 | ||||||||||||||||||||||||||||||||||||||||||
| Restricted common stock forfeitures | (2,870 | ) | (3 | ) | 3 | — | — | — | ||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock purchase warrants related to secured convertible notes | — | — | 535,739 | — | — | 535,739 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon conversion of secured convertible notes and interest | 498,625 | 499 | 697,568 | — | — | 698,067 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock related to the issuance of secured convertible notes | 89,285 | 89 | 118,660 | — | — | 118,749 | ||||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (2,985,825 | ) | (2,985,825 | ) | ||||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2019 | 12,079,095 | $ | 12,079 | $ | 82,748,400 | $ | (2,157,226 | ) | $ | (83,961,635 | ) | $ | (3,358,382 | ) | ||||||||||||||||||||||||||||||||||
| Balance, December 31, 2017 | 7,037,799 | $ | 7,038 | $ | 64,923,735 | $ | (2,157,226 | ) | $ | (61,909,799 | ) | $ | 863,748 | |||||||||||||||||||||||||||||||||||
| Cumulative effects of adjustment for adoption of ASC 606 | — | — | — | — | 71,444 | 71,444 | ||||||||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2019 | 12,079,095 | $ | 12,079 | $ | 83,216,387 | $ | (2,157,226 | ) | $ | (87,388,619 | ) | $ | (6,317,379 | ) | ||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 493,519 | — | — | 493,519 | — | — | 311,677 | — | — | 311,677 | ||||||||||||||||||||||||||||||||||||
| Restricted common stock grant | 84,500 | 84 | (84 | ) | — | — | 530,050 | 530 | (530 | ) | — | — | — | |||||||||||||||||||||||||||||||||||
| Restricted common stock forfeitures | (26,450 | ) | (26 | ) | 26 | — | — | — | (22,500 | ) | (23 | ) | 23 | — | — | — | ||||||||||||||||||||||||||||||||
| Issuance of common purchase warrants in connection with the issuance of subordinated notes payable | — | — | 47,657 | — | — | 47,657 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon conversion of secured convertible notes and interest | 959,543 | 960 | 1,342,400 | — | — | 1,343,360 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock through underwritten public offering at $1.15 per share (net of offering expenses and underwriters’ discount) | 2,521,740 | 2,522 | 2,499,614 | — | — | 2,502,136 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock purchase warrants in connection with issuance of unsecured promissory note payable | — | — | 20,806 | — | — | 20,806 | ||||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (2,588,232 | ) | (2,588,232 | ) | — | — | — | — | (2,334,110 | ) | (2,334,110 | ) | ||||||||||||||||||||||||||||||||
| Balance, March 31, 2018 | 7,095,849 | 7,096 | 65,464,853 | (2,157,226 | ) | (64,426,587 | ) | (1,111,864 | ) | |||||||||||||||||||||||||||||||||||||||
| Balance, March 31, 2020 | 16,067,928 | 16,068 | 87,390,377 | (2,157,226 | ) | (89,722,729 | ) | (4,473,510 | ) | |||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 594,227 | — | — | 594,227 | — | — | 376,738 | — | — | 376,738 | ||||||||||||||||||||||||||||||||||||
| Restricted common stock grant | 100,000 | 100 | (100 | ) | — | — | — | 135,450 | 135 | (135 | ) | — | — | — | ||||||||||||||||||||||||||||||||||
| Restricted common stock forfeitures | (3,950 | ) | (4 | ) | 4 | — | — | — | (12,750 | ) | (13 | ) | 13 | — | — | — | ||||||||||||||||||||||||||||||||
| Issuance of common purchase warrants in connection with the issuance of secured convertible debentures | — | — | 1,684,251 | — | — | 1,684,251 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of stock upon conversion of secured convertible debentures and accrued interest | 74,276 | 74 | 185,614 | — | — | 185,688 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon conversion of secured convertible notes and interest | 1,664,669 | 1,665 | 1,679,660 | — | — | 1,681,325 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock through underwritten public offering at $1.65 per share (net of offering expenses and underwriters’ discount) | 3,554,545 | 3,554 | 5,346,859 | — | — | 5,350,413 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock through underwritten public offering at $2.15 per share (net of offering expenses and underwriters’ discount) | 2,539,534 | 2,540 | 4,974,152 | — | — | 4,976,692 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon exercise of common stock purchase warrants | 20,000 | 20 | 48,980 | — | — | 49,000 | 2,693,867 | 2,694 | 5,200,428 | — | — | 5,203,122 | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon exercise of stock options | 1,875 | 2 | 7,798 | 7,800 | ||||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock purchase warrants in connection with issuance of secured convertible notes | — | — | 721,141 | — | — | 721,141 | ||||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | (2,962,890 | ) | (2,962,890 | ) | — | — | — | — | (497,894 | ) | (497,894 | ) | ||||||||||||||||||||||||||||||||
| Balance, June 30, 2018 | 7,286,175 | 7,286 | 67,977,829 | (2,157,226 | ) | (67,389,477 | ) | (1,561,588 | ) | |||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | 669,481 | — | — | 669,481 | ||||||||||||||||||||||||||||||||||||||||||
| Restricted common stock grant | 300,000 | 301 | (301 | ) | — | — | — | |||||||||||||||||||||||||||||||||||||||||
| Restricted common stock forfeitures | (3,500 | ) | (4 | ) | 4 | — | — | — | ||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock through underwritten public offering (net of offering expenses and underwriters’ discount) | 2,600,000 | 2,600 | 7,322,300 | — | — | 7,324,900 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock purchase warrants in connection with issuance of proceeds investment agreement | — | — | 932,487 | — | — | 932,487 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of stock upon conversion of secured convertible debentures and accrued interest | 43,200 | 43 | 107,957 | — | — | 108,000 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon conversion of secured notes payable and accrued interest | 47,139 | 47 | 153,153 | — | — | 153,200 | ||||||||||||||||||||||||||||||||||||||||||
| Issuance of common stock upon exercise of common stock purchase warrants | 151,738 | 152 | 376,073 | — | — | 376,225 | ||||||||||||||||||||||||||||||||||||||||||
| Net loss | — | — | �� | — | — | (4,665,580 | ) | (4,665,580 | ) | |||||||||||||||||||||||||||||||||||||||
| Balance, September 30, 2018 | 10,424,752 | $ | 10,425 | $ | 77,538,983 | $ | (2,157,226 | ) | $ | (72,055,057 | ) | $ | 3,337,125 | |||||||||||||||||||||||||||||||||||
| Balance, June 30, 2020 | 26,645,118 | $ | 26,645 | $ | 105,697,031 | $ | (2,157,226 | ) | $ | (90,220,623 | ) | $ | 13,345,827 | |||||||||||||||||||||||||||||||||||
See Notes to the Unaudited Condensed Consolidated Financial Statements.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINESIX MONTHS ENDED SEPTEMBERJUNE 30, 20192020 AND 2018
2019
(Unaudited)
| 2019 | 2018 | |||||||
| Cash Flows from Operating Activities: | ||||||||
| Net loss | $ | (6,578,729 | ) | $ | (10,216,702 | ) | ||
| Adjustments to reconcile net loss to net cash flows used in operating activities: | ||||||||
| Depreciation and amortization | 287,184 | 395,819 | ||||||
| Gain on disposal of equipment | — | (28,218 | ) | |||||
| Change in fair value of warrant derivative liabilities | — | 319,105 | ||||||
| Loss on extinguishment of secured convertible debentures | — | 600,000 | ||||||
| Secured convertible notes issuance expense | 89,148 | 220,312 | ||||||
| Change in fair value of secured convertible notes | 408,860 | 2,296,444 | ||||||
| Change in fair value of proceeds investment agreement | 3,275,000 | 98,487 | ||||||
| Interest on secured convertible notes paid through issuance of common stock | 50,000 | — | ||||||
| Interest expense added to convertible debenture | — | 995,368 | ||||||
| Amortization of discount on subordinated note payable | — | 47,657 | ||||||
| Operating lease right of use asset | 333,308 | — | ||||||
| Stock-based compensation | 1,715,972 | 1,757,227 | ||||||
| Provision for inventory obsolescence | 47,637 | (300,729 | ) | |||||
| Provision for doubtful accounts receivable | 53,224 | — | ||||||
| Change in assets and liabilities: | ||||||||
| (Increase) decrease in: | ||||||||
| Accounts receivable - trade | 32,493 | (27,180 | ) | |||||
| Accounts receivable - other | (86,217 | ) | (40,336 | ) | ||||
| Inventories | 569,710 | 1,680,765 | ||||||
| Prepaid expenses | (47,620 | ) | (208,099 | ) | ||||
| Other assets | (147,504 | ) | (129,009 | ) | ||||
| Increase (decrease) in: | ||||||||
| Accounts payable | 1,290,614 | (1,691,458 | ) | |||||
| Accrued expenses | (1,003,185 | ) | (68,294 | ) | ||||
| Lease obligation with right of use asset | (252,148 | ) | — | |||||
| Income taxes payable | 2,144 | (6,437 | ) | |||||
| Contract liabilities | (210,849 | ) | 227,786 | |||||
| Net cash used in operating activities | (170,958 | ) | (4,077,492 | ) | ||||
| Cash Flows from Investing Activities: | ||||||||
| Purchases of furniture, fixtures and equipment | (78,584 | ) | (34,448 | ) | ||||
| Proceeds from the sale of equipment | — | 76,268 | ||||||
| Additions to intangible assets | (51,182 | ) | (72,721 | ) | ||||
| Release of cash in accordance with secured convertible note | — | 500,000 | ||||||
| Net cash provided by (used) in investing activities | (129,766 | ) | 469,099 | |||||
| Cash Flows from Financing Activities: | ||||||||
| Proceeds from subordinated notes payable | — | 250,000 | ||||||
| Proceeds from sale of common stock in underwritten public offering | — | 7,324,900 | ||||||
| Proceeds from proceeds investment agreement and detachable common stock purchase warrants | — | 10,000,000 | ||||||
| Proceeds from exercise of common stock purchase warrants | 1,564,000 | — | ||||||
| Proceeds from secured convertible notes and detachable common stock purchase warrants | 2,500,000 | 6,250,000 | ||||||
| Principal payment on secured convertible debentures | — | (10,834,169 | ) | |||||
| Principal payment on subordinated notes payable | — | (1,108,500 | ) | |||||
| Payment on proceeds investment agreement | (6,000,000 | ) | — | |||||
| Proceeds from issuance of common stock and warrants | — | 89,304 | ||||||
| Loss on extinguishment of secured convertible debentures | — | (600,000 | ) | |||||
| Secured convertible notes issuance expense | (89,148 | ) | (220,312 | ) | ||||
| Principal payments on capital lease obligation | — | (8,492 | ) | |||||
| Net cash provided by (used in) financing activities | (2,025,148 | ) | 11,142,731 | |||||
| Net increase (decrease) in cash and cash equivalents | (2,325,872 | ) | 7,534,338 | |||||
| Cash and cash equivalents, beginning of period | 3,598,807 | 54,712 | ||||||
| Cash and cash equivalents, end of period | $ | 1,272,935 | $ | 7,589,050 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash payments for interest | $ | — | $ | 1,367,561 | ||||
| Cash payments for income taxes | $ | 3,856 | $ | 6,437 | ||||
| Supplemental disclosures of non-cash investing and financing activities: | ||||||||
| Restricted common stock grant | $ | 522 | $ | 485 | ||||
| Restricted common stock forfeitures | $ | 5 | $ | 34 | ||||
| Obtaining right of use asset for lease liability | $ | 500,751 | $ | — | ||||
| Amounts allocated to common stock purchase warrants in connection with proceeds from secured convertible notes | $ | 535,739 | $ | 1,684,251 | ||||
| Issuance of common stock upon conversion of secured convertible notes and interest | $ | 698,067 | $ | 293,688 | ||||
| Issuance of common stock related to the issuance of secured convertible notes | $ | 118,749 | $ | — | ||||
| Amounts allocated to common stock purchase warrants in connection with proceeds investment agreement | $ | — | $ | 932,487 | ||||
| Issuance of common stock upon conversion of secured convertible notes payable and accrued interest | $ | — | $ | 153,200 | ||||
| Issuance of common stock upon exercise of common stock purchase warrants accounted for as warrant liabilities | $ | — | $ | 335,921 | ||||
| Amounts allocated to common stock purchase warrants in connection with proceeds from subordinated notes payable | $ | — | $ | 47,657 | ||||
| 2020 | 2019 | |||||||
| Cash Flows From Operating Activities: | ||||||||
| Net loss | $ | (2,832,004 | ) | $ | (3,592,904 | ) | ||
| Adjustments to reconcile net loss to net cash flows (used in) provided by operating activities: | ||||||||
| Depreciation and amortization | 134,143 | 206,969 | ||||||
| Stock based compensation | 688,415 | 1,310,393 | ||||||
| Provision for inventory obsolescence | 238,957 | 371,494 | ||||||
| Amortization of discount on unsecured promissory notes | 86,867 | — | ||||||
| Change in fair value of secured convertible notes | 1,300,252 | — | ||||||
| Change in fair value of proceeds investment agreement | (2,885,000 | ) | 3,098,000 | |||||
| Provision for doubtful accounts receivable | — | 20,000 | ||||||
| Debt issuance costs | 34,906 | — | ||||||
| Change in operating assets and liabilities: | ||||||||
| (Increase) decrease in: | ||||||||
| Accounts receivable – trade | (9,866 | ) | 215,840 | |||||
| Accounts receivable – other | (23,620 | ) | (118,556 | ) | ||||
| Inventories | 289,170 | (164,483 | ) | |||||
| Prepaid expenses | (193,366 | ) | 135 | |||||
| Operating lease right of use assets | (647,176 | ) | 224,413 | |||||
| Other assets | 79,981 | (133,000 | ) | |||||
| Increase (decrease) in: | ||||||||
| Accounts payable | (804,120 | ) | 1,073,021 | |||||
| Accrued expenses | 92,811 | (1,018,433 | ) | |||||
| Income taxes payable | (4,776 | ) | 244 | |||||
| Operating lease obligations | 572,022 | (143,252 | ) | |||||
| Contract liabilities | (174,599 | ) | (80,434 | ) | ||||
| Net cash (used in) provided by operating activities | (4,057,003 | ) | 1,269,447 | |||||
| Cash Flows from Investing Activities: | ||||||||
| Purchases of furniture, fixtures and equipment | (96,011 | ) | (73,705 | ) | ||||
| Additions to intangible assets | (67,098 | ) | (26,884 | ) | ||||
| Net cash used in investing activities | (163,109 | ) | (100,589 | ) | ||||
| Cash Flows from Financing Activities: | ||||||||
| Proceeds from unsecured promissory note payable, related party | 319,000 | — | ||||||
| Proceeds from unsecured promissory note payable | 100,000 | — | ||||||
| Proceeds from promissory notes payable | 1,568,900 | — | ||||||
| Proceeds from issuance of common stock upon exercise of warrants | 5,203,122 | 1,564,000 | ||||||
| Proceeds from issuance of secured convertible notes payable | 1,500,000 | |||||||
| Proceeds from sale of common stock in underwritten public offering | 12,829,241 | — | ||||||
| Proceeds from exercise of stock options | 7,800 | — | ||||||
| Principal payment on subordinated notes payable | (400,000 | ) | — | |||||
| Principal payment on secured convertible notes | (748,180 | ) | — | |||||
| Principal payments on unsecured promissory note payable, related party | (319,000 | ) | — | |||||
| Debt issuance costs | (34,906 | ) | ||||||
| Principal payment on proceeds investment agreement | — | (6,000,000 | ) | |||||
| Net cash provided by (used in) financing activities | 20,025,977 | (4,436,000 | ) | |||||
| Net increase (decrease) in cash and cash equivalents | 15,805,865 | (3,267,142 | ) | |||||
| Cash, cash equivalents, beginning of period | 359,685 | 3,598,807 | ||||||
| Cash, cash equivalents, end of period | $ | 16,165,550 | $ | 331,655 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash payments for interest | $ | 128,911 | $ | — | ||||
| Cash payments for income taxes | $ | 4,776 | $ | 5,756 | ||||
| Supplemental disclosures of non-cash investing and financing activities: | ||||||||
| Restricted common stock grant | $ | 664 | $ | 522 | ||||
| Restricted common stock forfeitures | $ | 36 | $ | 2 | ||||
| Cashless exercise of common stock purchase warrants | $ | 7 | $ | — | ||||
| Impact of Adoption of ASC 842 - obtaining right of use asset for lease liability | $ | — | $ | 500,751 | ||||
| Issuance of common stock upon conversion of secured convertible notes | $ | 3,024,685 | $ | — | ||||
| Amounts allocated to common stock purchase warrants in connection with issuance of unsecured promissory note payable | $ | 741,947 | $ | — | ||||
See Notes to the Unaudited Condensed Consolidated Financial Statements.
NOTES TOUnaudited CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1. NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Business:Operations:
Digital Ally, Inc. its wholly-owned subsidiaries, Digital Ally International, Inc. and subsidiaryShield Products, LLC (collectively, “Digital Ally,” “Digital,” the “Company”) produces digital video imaging, storage products and storagedisinfectant and related safety products for use in law enforcement, security and commercial applications. ItsThe Company’s products are aninclude in-car digital video/audio recorderrecorders contained in a rear-view mirror for use in law enforcement and commercial fleets; a system that provides its law enforcement customers with audio/video surveillance from multiple vantage points and hands-free automatic activation of body-worn cameras and in-car video systems; a miniature digital video system designed to be worn on an individual’s body; and cloud storage solutions. The Company has recently added two new lines of branded products: (1) the ThermoVu™ line, which is a line of self-contained temperature monitoring stations that provides alerts and controls facility access when an individual’s temperature exceeds a pre-set threshold and (2) the Shield™ disinfectant and cleanser line, which is for use against viruses and bacteria and which we began offering to the Company’s law enforcement and commercials customers beginning late in the second quarter of 2020. Both product lines are manufactured by third parties. In addition, the Company has active research and development programs to adapt its technologies to other applications. It can integrate electronic, radio, computer, mechanical, and multi-media technologies to create unique solutions to address needs in a variety of other industries and markets, including mass transit, school bus, taxicab and the military. The Company sells its products to law enforcement agencies, private security customers and organizations and consumer and commercial fleet operators through direct sales domestically and third-party distributors internationally.
The Company was originally incorporated in Nevada on December 13, 2000 as Vegas Petra, Inc. and had no operations until 2004. On November 30, 2004, Vegas Petra, Inc. entered into a Plan of Merger with Digital Ally, Inc., at which time the merged entity was renamed Digital Ally, Inc.
Recently Adopted Accounting Standards
In February 2016, the FASB issued Accounting Standard Update (“ASU”) 2016-02,Leases(“Topic 842”). The guidance requires lessees to put most leases on their balance sheets but recognize expenses on their income statements in a manner similar to today’s accounting. Lessees initially recognize a lease liability for the obligation to make lease payments and a right-of-use asset for the right to use the underlying asset for the lease term. The lease liability is measured at the present valueBasis of the lease payments over the lease term. The right-of-use asset is measured at the lease liability amount, adjusted for lease prepayments, lease incentives received and the lessee’s initial direct costs. The standard is effective for public business entities for annual reporting periods beginning after December 15, 2018, and interim periods within that reporting period, which is the first quarter of 2019 for the Company.Presentation:
The Company adoptedcondensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the new guidance on January 1, 2019 usingUnited States for interim financial information and with the optional transitional methodinstructions to Form 10-Q and elected to useArticle 8 of Regulation S-X. Accordingly, they do not include all the packageinformation and footnotes required by generally accepted accounting principles in the United States for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three practical expedients which allows the Companyand six month period ended June 30, 2020 are not to reassess whether contracts are or contain leases, lease classification and whether initial direct costs qualify for capitalization. The Company has completed its assessmentnecessarily indicative of the impact ofresults that may be expected for the standardyear ending December 31, 2020.
The balance sheet at December 31, 2019 has been derived from the audited financial statements at that date but does not include all the information and determined thatfootnotes required by generally accepted accounting principles in the only lease that the Company held was an operating leaseUnited States for its office and warehouse space. Upon adoption of the standard, the Company recorded Right of Use (ROU) assets of approximately $501,000 and lease liabilities of approximately $582,000 related to it office and warehouse space operating leases. The Company also removed deferred rent of approximately $81,000 when adopting the new guidance.complete financial statements.
For further information, refer to the audited financial liabilities measured using the fair value option in ASC 825, ASU 2016-01, Financial Instruments — Overall (Subtopic 825-10): Recognitionstatements and Measurement of Financial Assets and Financial Liabilities, issued in January 2016, requires entities to recognize the changes in fair value of liabilities caused by a change in instrument specific credit risk (own credit risk) in other comprehensive income. The ASU is effective for calendar-year public business entities beginning in 2018. For all other calendar-year entities, it is effective for annual periods beginning in 2019 and interim periods beginning in 2020. Entities can early adopt certain provisions of the new standard, including this provision related to financial liabilities measured under the fair value option. We have considered this guidance and its impact on this debt accounted for at fair value. Based on discussions with our valuation expert and knowledge of the Company there was no change in valuation caused by a changefootnotes included in the Company’s credit risk during the period from August 5, 2019 to September 30, 2019.
ASU 2018-09, Codification improvements, clarifies the accounting for a debt extinguishment when the fair value option is elected. Upon extinguishment an entity shall include in net income the cumulative amount of the gain or loss previously recorded in other comprehensive income for the extinguished debt that resulted from changes in instrument-specific credit risk. The ASU is effective for calendar-year public business entities beginning in 2019. For all other calendar-year entities, it is effective for annual periods beginning in 2020 and interim periods beginning in 2021. Early adoption is permitted for any fiscal year or interim period for which an entity’s financial statements have not yet been issued or have not been made available to be issued. We have considered this guidance and its impactreport on this debt accounted for at fair value. Based on discussions with our valuation expert and knowledge of the Company there was no change in valuation caused by a change in the Company’s credit risk during the period from August 5, 2019 to September 30, 2019. Since there is no change accounted for as a change in Credit Risk (included in other comprehensive income/loss) there is no impact to the Company’s financial statements from this new guidance.
Management’s Liquidity Plan
The Company incurred operating losses in the nine months ended September 30, 2019 and substantial operating lossesForm 10-K for the year ended December 31, 20182019 and the unaudited financial statements and footnotes included in the Company’s quarterly report on Form 10-Q for the quarter ended March 31, 2020.
COVID-19 pandemic:
The World Health Organization has declared the outbreak of COVID-19, or coronavirus, which began in December 2019, a pandemic and the U.S. federal government has declared it a national emergency. The COVID-19 pandemic had a negative impact on our revenues in the first and second quarters of 2020and we expect it will adversely affect our business and operations during the remainder of 2020. While its full and continued impact cannot be determined at present, we do expect it will have a material adverse effect on our future business, financial condition, results of operations, and cash flows. The global spread of COVID-19 has already created significant volatility, uncertainty and economic disruption in the markets in which we operate. Governments, public institutions, and other organizations in countries and localities where cases of COVID-19 have been detected are taking certain emergency measures to mitigate its spread, including implementing travel restrictions and closing factories, schools, public buildings, and businesses. We are closely monitoring the spread of COVID-19 and continually assessing its potential effects on our business. In response to the impact that the COVID-19 pandemic and other future pandemics may have on the Company’s customers and legacy products, the Company has recently added two new lines of branded products: (1) the ThermoVu™ which is a line of self-contained temperature monitoring stations that provides alerts and controls facility access when an individual’s temperature exceeds a pre-set threshold and (2) the Shield™ disinfectant and cleanser line which is for use against viruses and bacteria and which we began offering to the Company’s law enforcement and commercials customers beginning late in the second quarter of 2020.
The extent to which our future results are affected by COVID-19 will largely depend on future developments that cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to the pandemic and the impact on the global economy, our customers’ demand for our products and services, and our ability to provide our products and services, particularly as result of our employees working remotely and/or the closure of certain offices and facilities.
Management’s Liquidity Plan and Going Concern:
The accompanying unaudited condensed consolidated financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company incurred operating losses for the six months ended June 30, 2020 and for the year ended December 31, 2019 primarily due to reduced revenues and gross margins caused by competitors’ willful infringementa variety of factors, including the COVID-19 pandemic and its patents, specifically the auto-activation of body-wornrelated effects on our customers and in-car video systems,our supply chain, and by competitors’ introduction of newer products with more advanced features together with significant price cutting of their products. The Company incurred net losses of approximately $6.6$2.8 million forduring the ninesix months ended SeptemberJune 30, 20192020 and $15.5$10.0 million duringfor the year ended December 31, 20182019 and it had an accumulated deficit of $84.0$90.2 million as of SeptemberJune 30, 2019.2020. During the nine months ended September 30, 2019, the Company settled one of its patent infringement cases and received a lump sum payment of $6.0 million, which was used to pay its obligations under its Proceeds Investment Agreement, as more fully described in Note 11.4 — “Proceeds Investment Agreement Obligation.”. In recent years the Company has accessed the public and private capital markets to raise funding through the issuance of debt and equity. In that regard, the Company raised $12.8 million in underwritten public offerings of its common stock, raised $5.2 million through the exercise of common stock purchase warrants and options, raised $1.6 million through the issuance of promissory notes through the Small Business Administration’s (“SBA”) Paycheck Protection Program (“PPP”) and the Economic Injury Disaster Loan (“EIDL”) programs, raised $1.5 million through the issuance of secured convertible notes and raised $419,000 in unsecured promissory notes and detachable warrants during the six months ended June 30, 2020. In addition, the Company raised $1,564,000 in the nine monthsyear ended September 30,December 31, 2019 from the exercise of warrants, the Company borrowed $300,000 pursuant to a short-term promissory note payable on December 23, 2019 with detachable warrants to purchase 107,000 shares of common stock and on August 5, 2019, the Companyit raised funds from the issuance of $2.78 million principal balance of secured convertible notes with detachable warrants to purchase 571,248 shares of common stock with the net proceeds being used for working capital purposes as more fully described in Note 6. Additionally, the Company raised funding in the form of subordinated debt, secured debt and Proceeds Investment Agreement totaling $16,500,000 and net proceeds of $7,324,900 from an underwritten public offering of common stock during the year ended December 31, 2018. The Company issued common stock with detachable common stock purchase warrants for $2,776,332 and raised funding from subordinated and secured debt totaling $1,608,500 during the year ended December 31, 2017. During 2016, the Company raised $4.0 million of funding in the form of convertible debentures and common stock purchase warrants.3 – “Debt Obligations”. These debt and equity raises were utilized to fund its operations and management expects to continue this pattern until it achieves positive cash flows from operations, although it can offer no assurance in this regard.
The Company settled its lawsuit with the PGA Tour and the case was dismissed by the Plaintiff with prejudice on April 17, 2019. See Note 11, “Contingencies” for the details respecting the settlement. Additionally, the Company settled its lawsuit with WatchGuard on May 13, 2019 and the case was dismissed. See Note 11, “Contingencies” for the details respecting the settlement.
The Company will have to restore positive operating cash flows and profitability over the next year and/or raise additional capital to fund its operational plans, meet its customary payment obligations and otherwise execute its business plan. There can be no assurance that it will be successful in restoring positive cash flows and profitability, or that it can raise additional financing when needed, and obtain it on terms acceptable or favorable to the Company.
The Company has implemented an enhanced quality control program to detect and correct product issues before they result in significant rework expenditures affecting its gross margins and has seen progress in that regard. The Company has increased its addressable market to non-law enforcement customers and obtained new non-law enforcement contracts in 2018,2020 and 2019, which contracts include recurring revenue during the period 20192020 to 2020.2023. Further, it added two new product lines in response to the Covid-19 pandemic. The Company believes that its quality control and cost cutting initiatives, expansion to non-law enforcement sales channels and new product introductionintroductions will eventually restore positive operating cash flows and profitability, although it can offer no assurances in this regard.
In addition The extent to which its future operating results are affected by COVID-19 will largely depend on future developments which cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to the initiatives described above,pandemic and the Board of Directors is conducting a review of a full range of strategic alternativesimpact on the global economy, our customers’ demand for our products and services, and our ability to best position the Company for the future including, but not limited to, monetizing its patent portfolioprovide our products and related patent infringement litigation against Axon Enterprise, Inc. (“Axon” formerly Taser International, Inc.), the sale of all or certain assets, properties or groups of properties or individual businesses or merger or combination with another company. Theservices, particularly as result of this review may also includeour employees working remotely and/or the continued implementationclosure of certain offices and facilities. While degree of impact of these factors is uncertain, we believe that the Company’sCOVID-19 pandemic or the perception of its effects will have a material adverse effect on our business, plan. The Company’s August 5, 2019 issuancefinancial condition, results of $2.78 million principal balance of convertible notes was part of this strategic alternatives review. While such funding addressed the Company’s near-term liquidity needs, it continues to consider strategic alternatives to address longer-term liquidity needsoperations, and operational issues. There can be no assurance that any additional transactions or financings will result from this process.cash flows.
Based on the uncertainties described above, the Company believes its business plan does not alleviate the existence of substantial doubt about its ability to continue as a going concern within one year from the date of the issuance of these unaudited condensed consolidated interim financial statements. The accompanying unaudited condensed consolidated financial statements do not include any adjustments related to the recoverability and classification of asset amounts or the classification of liabilities that might be necessary should the Company be unable to continue as a going concern.
The following is a summary of the Company’s Significant Accounting Policies:
Basis of Consolidation:
The accompanying financial statements include the consolidated accounts of Digital Ally and its wholly-owned subsidiary,subsidiaries, Digital Ally International, Inc. and Shield Products, LLC. All intercompany balances and transactions have been eliminated during consolidation.
The Company formed Digital Ally International, Inc. during August 2009 to facilitate the export sales of its products.
Fair Value of Financial Instruments:
The carrying amounts of financial instruments, including cash and cash equivalents, accounts receivable and accounts payable approximate fair value because of the short-term nature of these items. The Company accounts forformed Shield Products, LLC in May 2020 to facilitate the sales of its proceeds investment agreementShield™ line of disinfectant/cleanser products and convertible debt on a fair value basis.
ThermoVu™ line of temperature monitoring equipment.
Revenue Recognition:
The Company applies the provisions of Accounting Standards Codification (ASC) 606-10,Revenue from Contracts with Customers, and all related appropriate guidance. The Company recognizes revenue under the core principle to depict the transfer of control to its customers in an amount reflecting the consideration to which it expects to be entitled. In order to achieve that core principle, the Company applies the following five-step approach: (1) identify the contract with a customer, (2) identify the performance obligations in the contract, (3) determine the transaction price, (4) allocate the transaction price to the performance obligations in the contract, and (5) recognize revenue when a performance obligation is satisfied.
The Company considers customer purchase orders, which in some cases are governed by master sales agreements, to be the contracts with the customer. In situation where sales are to a distributor, the Company had concluded its contracts are with the distributor as the Company holds a contract bearing enforceable rights and obligations only with the distributor. As part of part of its consideration for the contract, the Company evaluates certain factors including the customers’ ability to pay (or credit risk). For each contract, the Company considers the promise to transfer products, each of which is distinct, to be the identified performance obligations. In determining the transaction price, the Company evaluates whether the price is subject to refund or adjustment to determine the net consideration to which it expects to be entitled. As the Company’s standard payment terms are less than one year, it has elected the practical expedient under ASC 606-10-32-18 to not assess whether a contract has a significant financing component. The Company allocates the transaction price to each distinct product based on its relative standalone selling price. The product price as specified on the purchase order is considered the standalone selling price as it is an observable input which depicts the price as if sold to a similar customer in similar circumstances. Revenue is recognized when control of the product is transferred to the customer (i.e. when the Company’s performance obligations is satisfied), which typically occurs at shipment. Further in determining whether control has been transferred, the Company considers if there is a present right to payment and legal title, along with risks and rewards of ownership having transferred to the customer. Customers do not have a right to return the product other than for warranty reasons for which they would only receive repair services or replacement product. The Company has also elected the practical expedient under ASC 340-40-25-4 to expense commissions for product sales when incurred as the amortization period of the commission asset the Company would have otherwise recognized is less than one year.
The Company sells its products and services to law enforcement and commercial customers in the following manner:
| ● | Sales to domestic customers are made direct to the end customer (typically a law enforcement agency or a commercial customer) through its sales force, which is composed of its employees. Revenue is recorded when the product is shipped to the end customer. | |
| ● | Sales to international customers are made through independent distributors who purchase products from the Company at a wholesale price and sell to the end user (typically law enforcement agencies or a commercial customer) at a retail price. The distributor retains the margin as its compensation for its role in the transaction. The distributor generally maintains product inventory, customer receivables and all related risks and rewards of ownership. Accordingly, upon application of steps one through five above, revenue is recorded when the product is shipped to the distributor consistent with the terms of the distribution agreement. | |
| ● | Repair parts and services for domestic and international customers are generally handled by its inside customer service employees. Revenue is recognized upon shipment of the repair parts and acceptance of the service or materials by the end customer. |
Sales taxes collected on products sold are excluded from revenues and are reported as accrued expenses in the accompanying balance sheets until payments are remitted.
Service and other revenue is comprised of revenues from extended warranties, repair services, cloud revenue and software revenue. Revenue is recognized upon shipment of the product and acceptance of the service or materials by the end customer for repair services. Revenue for extended warranty, cloud service or other software-based products is over the term of the contract warranty or service period. A time-elapsed method is used to measure progress because the Company transfers control evenly over the contractual period. Accordingly, the fixed consideration related to these revenues is generally recognized on a straight-line basis over the contract term, as long as the other revenue recognition criteria have been met.
Contracts with some of the Company’s customers contain multiple performance obligations that are distinct and accounted for separately. The transaction price is allocated to the separate performance obligations on a relative standalone selling price (“SSP”). The Company determined SSP for all the performance obligations using observable inputs, such as standalone sales and historical pricing. SSP is consistent with the Company’s overall pricing objectives, taking into consideration the type of service being provided. SSP also reflects the amount the Company would charge for the performance obligation if it were sold separately in a standalone sale. Multiple performance obligations consist of product, software, cloud subscriptions and extended warranties.
The Company’s multiple performance obligations may include future in-car or body-worn camera devices to be delivered at defined points within a multi-year contract, and in those arrangements, the Company allocates total arrangement consideration over the life of the multi-year contract to future deliverables using management’s best estimate of selling price.
Contract liabilities consist of deferred revenue and include payments received in advance of performance under the contract and are reported separately as current liabilities and non-current liabilities in the Condensed Consolidated Balance Sheets. Such amounts consist of extended warranty contracts, prepaid cloud services and prepaid installation services and are generally recognized as the respective performance obligations are satisfied. Total contract liabilities consist of the following: Contract liabilities consist of deferred revenue and include payments received in advance of performance under the contract and are reported separately as current liabilities and non-current liabilities in the Condensed Consolidated Balance Sheets. Such amounts consist of extended warranty contracts, prepaid cloud services and prepaid installation services and are generally recognized as the respective performance obligations are satisfied.
September 30, 2019 | December 31, 2018 | |||||||
| Contract liabilities, current | $ | 1,698,560 | $ | 1,748,789 | ||||
| Contract liabilities, non-current | 1,830,471 | 1,991,091 | ||||||
| Total contract liabilities | $ | 3,529,031 | $ | 3,739,880 | ||||
Sales returns and allowances aggregated $19,356 and $72,127 for the three months ended September 30, 2019 and 2018, respectively, and $127,114 and $126,373 for the nine months ended September 30, 2019 and 2018, respectively. Obligations for estimated sales returns and allowances are recognized at the time of sales on an accrual basis. The accrual is determined based upon historical return rates adjusted for known changes in key variables affecting these return rates
Revenues for nine month ended September 30, 2019 and 2018 were derived from the following sources
| Nine months ended September 30, | ||||||||
| 2019 | 2018 | |||||||
| DVM-800 | $ | 2,964,862 | $ | 3,956,816 | ||||
| DVM-250 Plus | 844,140 | 617,705 | ||||||
| FirstVu HD | 1,019,287 | 1,070,245 | ||||||
| EVO | 186,369 | — | ||||||
| DVM-100 & DVM-400 | 7,140 | 69,496 | ||||||
| DVM-750 | 115,589 | 378,660 | ||||||
| VuLink | 113,894 | 146,896 | ||||||
| Repair and service | 386,806 | 288,073 | ||||||
| Cloud service revenue | 543,999 | 500,305 | ||||||
| Other service revenue | 1,050,677 | 805,068 | ||||||
| Laser Ally | 19,130 | 79,155 | ||||||
| Accessories and other revenues | 769,034 | 1,000,703 | ||||||
| $ | 8,020,927 | $ | 8,913,122 | |||||
Use of Estimates:
The preparation of the condensed consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Cash and cash equivalents:
Cash and cash equivalents include funds on hand, in bank and short-term investments with original maturities of ninety (90) days or less.
Accounts Receivable:
Accounts receivable are carried at original invoice amount less an estimate made for doubtful receivables based on a review of all outstanding amounts on a weekly basis. The Company determines the allowance for doubtful accounts by regularly evaluating individual customer receivables and considering a customer’s financial condition, credit history, and current economic conditions. Trade receivables are written off when deemed uncollectible. Recoveries of trade receivables previously written off are recorded when received.
A trade receivable is considered to be past due if any portion of the receivable balance is outstanding for more than thirty (30) days beyond terms. No interest is charged on overdue trade receivables.
Inventories:
Inventories consist of electronic parts, circuitry boards, camera parts and ancillary parts (collectively, “components”), work-in-process and finished goods, and are carried at the lower of cost (First-in, First-out Method) or market value. The Company determines the estimate for the reserve for slow moving or obsolete inventories by regularly evaluating individual inventory levels, projected sales and current economic conditions.
Furniture, fixtures and equipment:
Furniture, fixtures and equipment is stated at cost net of accumulated depreciation. Additions and improvements are capitalized while ordinary maintenance and repair expenditures are charged to expense as incurred. Depreciation is recorded by the straight-line method over the estimated useful life of the asset, which ranges from three to ten years. Amortization expense on capitalized leases is included with depreciation expense.
Intangible assets:
Intangible assets include deferred patent costs and license agreements. Legal expenses incurred in preparation of patent application have been deferred and will be amortized over the useful life of granted patents. Costs incurred in preparation of applications that are not granted will be charged to expense at that time. The Company has entered into several sublicense agreements under which it has been assigned the exclusive rights to certain licensed materials used in its products. These sublicense agreements generally require upfront payments to obtain the exclusive rights to such material. The Company capitalizes the upfront payments as intangible assets and amortizes such costs over their estimated useful life on a straight-line method.
Leases:
The Company determines if an arrangement contains a lease at inception. For arrangements where the Company is the lessee, the Company will evaluate whether to account for the lease as an operating or finance lease. Operating leases are included in the right of use assets (ROU) and operating lease liabilities on the condensed consolidated balance sheet as of September 30, 2019. Finance leases would be included in furniture, fixtures and equipment, net and long-term debt and finance lease obligations on the condensed balance sheet. The Company had an operating lease for office and warehouse space at September 30, 2019 but no financing leases.
ROU assets and lease liabilities are recognized based on the present value of the future minimum lease payments over the lease term at commencement date. The Company uses its incremental borrowing rate based on the information available at the commencement date in determining the operating lease liabilities if the operating lease does not provide an implicit rate. Lease terms may include the option to extend when Company is reasonably certain that the option will be exercised. Lease expense for operating leases is recognized on a straight-line basis over the lease term.
The Company elected to apply the short-term lease measurement and recognition exemption in which ROU assets and lease liabilities are not recognized for short term leases.
Proceeds investment agreement:
The Company has elected to record its proceeds investment agreement at its fair value. Accordingly, the proceeds investment agreement will be marked-to-market at each reporting date with the change in fair value reported as a gain (loss) in the Condensed Consolidated Statement of Operations. All issuance costs related to the proceeds investment agreement were expensed as incurred in the Condensed Consolidated Statement of Operations.
Senior Convertible Notes:
The Company has elected to record its senior convertible notes at its fair value. Accordingly, the new debt agreement will be marked-to-market at each reporting date with the change in fair value reported as a gain (loss) in the Condensed Consolidated Statement of Operations. All issuance costs related to the proceeds investment agreement were expensed as incurred in the Condensed Consolidated Statement of Operations.
Long-Lived Assets:
Long-lived assets such as furniture, fixtures and equipment and purchased intangible assets subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, the Company first compares undiscounted cash flows expected to be generated by that asset or asset group to its carrying value. If the carrying value of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques, including discounted cash flow models, quoted market values and third-party appraisals, as considered necessary.
Warranties:
The Company’s products carry explicit product warranties that extend up to two years from the date of shipment. The Company records a provision for estimated warranty costs based upon historical warranty loss experience and periodically adjusts these provisions to reflect actual experience. Accrued warranty costs are included in accrued expenses. Extended warranties are offered on selected products and when a customer purchases an extended warranty the associated proceeds are treated as contract liabilities and recognized over the term of the extended warranty.
Shipping and Handling Costs:
Shipping and handling costs for outbound sales orders totaled $16,208 and $12,378 for the three months ended September 30, 2019 and 2018, respectively, and $47,842 and $46,662 for the nine months ended September 30, 2019 and 2018, respectively. Such costs are included in selling, general and administrative expenses in the Condensed Consolidated Statements of Operations.
Advertising Costs:
Advertising expense includes costs related to trade shows and conventions, promotional material and supplies, and media costs. Advertising costs are expensed in the period in which they are incurred. The Company incurred total advertising expense of approximately $249,377 and $104,395 for the three months ended September 30, 2019 and 2018, respectively, and $884,184 and $295,641 for the nine months ended September 30, 2019 and 2018, respectively. Such costs are included in selling, general and administrative expenses in the Condensed Consolidated Statements of Operations.
Income Taxes:
Deferred taxes are provided for by the liability method in which deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax basis. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
The Company applies the provisions of the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) No. 740 - Income Taxes that provides a framework for accounting for uncertainty in income taxes and provided a comprehensive model to recognize, measure, present, and disclose in its financial statements uncertain tax positions taken or expected to be taken on a tax return. It initially recognizes tax positions in the financial statements when it is more likely than not the position will be sustained upon examination by the tax authorities. Such tax positions are initially and subsequently measured as the largest amount of tax benefit that is greater than 50% likely of being realized upon ultimate settlement with the tax authority assuming full knowledge of the position and all relevant facts. Application requires numerous estimates based on available information. The Company considers many factors when evaluating and estimating its tax positions and tax benefits, and it recognized tax positions and tax benefits may not accurately anticipate actual outcomes. As it obtains additional information, the Company may need to periodically adjust its recognized tax positions and tax benefits. These periodic adjustments may have a material impact on its Condensed consolidated Statements of Operations.
The Company’s policy is to record estimated interest and penalties related to the underpayment of income taxes as income tax expense in the condensed consolidated statements of operations. There was no interest expense related to the underpayment of estimated taxes during the nine months ended September 30, 2019 and 2018. There have been no penalties in the nine months ended September 30, 2019 and 2018.
The Company is subject to taxation in the United States and various states. As of September 30, 2019, the Company’s tax returns filed for 2016, 2017 and 2018 are subject to examination by the relevant taxing authorities. With few exceptions, as of September 30, 2019, the Company is no longer subject to Federal, state, or local examinations by tax authorities for years before 2016.
Research and Development Expenses:
The Company expenses all research and development costs as incurred. Development costs of computer software to be sold, leased, or otherwise marketed are subject to capitalization beginning when a product’s technological feasibility has been established and ending when a product is available for general release to customers. In most instances, the Company’s products are released soon after technological feasibility has been established. Costs incurred subsequent to achievement of technological feasibility were not significant, and software development costs were expensed as incurred during the nine months ended September 30, 2019 and 2018.
Common Stock Purchase Warrants:
The Company has common stock purchase warrants that are accounted for as equity based on their relative fair value and are not subject to re-measurement.
Stock-Based Compensation:
The Company grants stock-based compensation to its employees, board of directors and certain third-party contractors. Share-based compensation arrangements may include the issuance of options to purchase common stock in the future or the issuance of restricted stock, which generally are subject to vesting requirements. The Company records stock-based compensation expense for all stock-based compensation granted based on the grant-date fair value. The Company recognizes these compensation costs on a straight-line basis over the requisite service period of the award.
The Company estimates the grant-date fair value of stock-based compensation using the Black-Scholes valuation model. Assumptions used to estimate compensation expense are determined as follows:
Segments of Business:
Management has determined that its operations are comprised ofcomprise one reportable segment: the sale of digital audio and video recording and speed detection devices. For the three and ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, sales by geographic area were as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||||||||||||||||
2019 | 2018 | 2019 | 2018 | 2020 | 2019 | 2020 | 2019 | |||||||||||||||||||||||||
| Sales by geographic area: | ||||||||||||||||||||||||||||||||
| United States of America | $ | 2,854,501 | $ | 2,787,618 | $ | 7,846,560 | $ | 8,612,552 | $ | 1,726,119 | $ | 2,477,717 | $ | 4,097,815 | $ | 4,992,059 | ||||||||||||||||
| Foreign | 68,647 | 90,441 | 174,367 | 300,570 | 6,073 | 69,266 | 60,121 | 105,720 | ||||||||||||||||||||||||
| $ | 2,923,148 | $ | 2,878,059 | $ | 8,020,927 | $ | 8,913,122 | |||||||||||||||||||||||||
| Total | $ | 1,732,192 | $ | 2,546,983 | $ | 4,157,936 | $ | 5,097,779 | ||||||||||||||||||||||||
Sales to customers outside of the United States are denominated in U.S. dollars. All Company assets are physically located within the United States.
NOTE 2. BASIS OF PRESENTATIONRecent Accounting Pronouncements:
In February 2016, the FASB issued Accounting Standard Update (“ASU”) 2016-02, Leases (“Topic 842”). The condensed consolidated financialguidance requires lessees to put most leases on their balance sheets but recognize expenses on their income statements have been prepared in accordance with generally accepted accounting principles in the United States for interim financial information and with the instructionsa manner similar to Form 10-Q and Article 8 of Regulation S-X. Accordingly, they do not include all the information and footnotes required by generally accepted accounting principles in the United States for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary fortoday’s accounting. Lessees initially recognize a fair presentation have been included. Operating resultslease liability for the nine-month period ended September 30, 2019 are not necessarily indicativeobligation to make lease payments and a right-of-use asset for the right to use the underlying asset for the lease term. The lease liability is measured at the present value of the resultslease payments over the lease term. The right-of-use asset is measured at the lease liability amount, adjusted for lease prepayments, lease incentives received and the lessee’s initial direct costs. The standard is effective for public business entities for annual reporting periods beginning after December 15, 2018, and interim periods within that may be expectedreporting period, which was the first quarter of 2019 for the year ending December 31, 2019.
The balance sheet at December 31, 2018 has been derived from the audited financial statements at that date but does not include all the information and footnotes required by generally accepted accounting principles in the United States for complete financial statements.
For further information, refer to the financial statements and footnotes included in the Company’s annual report on Form 10-K for the year ended December 31, 2018.
NOTE 3. CONCENTRATION OF CREDIT RISK AND MAJOR CUSTOMERSCompany.
Financial instruments that potentially subject the Company to concentrations of credit risk consist of accounts receivable. Sales to domestic customers are typically made on credit and the Company generally does not require collateral while sales to international customers require payment before shipment or backing by an irrevocable letter or credit. The Company performs ongoing credit evaluations of its customers’ financial condition and maintains an allowance for estimated losses. Accounts are written off when deemed uncollectible and accounts receivable are presented net of an allowance for doubtful accounts. The allowance for doubtful accounts totaled $123,224 as of September 30, 2019 and $70,000 as of December 31, 2018.
The Company uses primarily a networkadopted the new guidance on January 1, 2019 using the optional transitional method and elected to use the package of unaffiliated distributors for international sales and employee-based direct sales force for domestic sales. No international distributor individually exceeded 10% of total revenues for the nine months ended September 30, 2019 and 2018. No individual customer receivable balance exceeded 10% of total accounts receivable as of September 30, 2019. One individual customer exceeded 10% of total accounts receivable as of September 30, 2018 and totaled $205,259, or 10% of total accounts receivable.
The Company purchases finished circuit boards and other proprietary component parts from suppliers located in the United States and on a limited basis from Asia. Althoughthree practical expedients which allows the Company obtains certain of these components from single source suppliers, it generally owns all toolingnot to reassess whether contracts are or contain leases, lease classification and management has located alternative suppliers to reduce the risk in most cases to supplier problems that could result in significant production delays.whether initial direct costs qualify for capitalization. The Company has not historically experienced significant supply disruptions from anycompleted its assessment of the impact of the standard and determined that the only lease that the Company held was an operating lease for its principal vendorsoffice and does not anticipate future supply disruptions.warehouse space. Upon adoption of the standard, the Company recorded Right of Use (ROU) assets of approximately $501,000 and lease liabilities of approximately $582,000 related to it office and warehouse space operating leases. The Company acquiresalso removed deferred rent of approximately $81,000 when adopting the new guidance.
In June 2016, the FASB issued ASU 2016-13, “Financial Instruments – Credit Losses” to improve information on credit losses for financial assets and net investment in leases that are not accounted for at fair value through net income. ASU 2016-13 replaces the current incurred loss impairment methodology with a methodology that reflects expected credit losses. In April 2019 and May 2019, the FASB issued ASU No. 2019-04, “Codification Improvements to Topic 326, Financial Instruments-Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments” and ASU No. 2019-05, “Financial Instruments-Credit Losses (Topic 326): Targeted Transition Relief” which provided additional implementation guidance on the previously issued ASU. In November 2019, the FASB issued ASU 2019-10, “Financial Instruments - Credit Loss (Topic 326), Derivatives and Hedging (Topic 815), and Leases (Topic 842),” which defers the effective date for public filers that are considered small reporting companies (“SRC”) as defined by the Securities and Exchange Commission (the “SEC”) to fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. Since the Company is an SRC, implementation will not be required until January 1, 2023. The Company will continue to evaluate the effect of adopting ASU 2016-13 will have on the Company’s consolidated financial statements.
In August 2018, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework—Changes to the Disclosure Requirements for Fair Value Measurement, to improve the effectiveness of disclosures. The amendments remove, modify, and add certain disclosure requirements in Topic 820, “Fair Value Measurement.” The amendments on changes in unrealized gains and losses, the range and weighted average of significant unobservable inputs used to develop Level 3 fair value measurements, and the narrative description of measurement uncertainty should be applied prospectively for only the most recent interim or annual period presented in the initial fiscal year of its components onadoption. All other amendments should be applied retrospectively to all periods presented upon their effective date. The amendments are effective for fiscal years beginning after December 15, 2019. Early adoption is permitted, including adoption in an interim period. Furthermore, an entity is permitted to early adopt any removed or modified disclosures upon issuance of the update and delay adoption of the additional disclosures until their effective date. The Company implemented the revised disclosure requirements upon adoption of ASU 2018-13.
In August 2018, the FASB issued ASU No. 2018-15, Intangible-Goodwill and Other Internal-Use Software (Subtopic 350-40), or ASU 2018-15. ASU 2018-15 updates guidance regarding accounting for implementation costs associated with a purchase order basiscloud computing arrangement that is a service contract. The amendments under ASU 2018-15 are effective for interim and doesannual fiscal periods beginning after December 15, 2019, with early adoption permitted. The adoption of this standard did not have long-term contracts with its suppliers.a significant impact on the Company’s financial position and results of operations.
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes - simplifying the accounting for income taxes (Topic 740), which is meant to simplify the accounting for income taxes by removing certain exceptions to the general principles in Topic 740, Income Taxes. The amendment also improves consistent application and simplifies GAAP for other areas of Topic 740 by clarifying and amending existing guidance. The adoption of this standard did not have a significant impact on the Company’s financial position and results of operations.
NOTE 4.2. INVENTORIES
Inventories consisted of the following at SeptemberJune 30, 20192020 and December 31, 2018:2019:
September 30, 2019 | December 31, 2018 | June 30, 2020 | December 31, 2019 | |||||||||||||
| Raw material and component parts | $ | 4,220,724 | $ | 4,969,786 | $ | 2,575,710 | $ | 4,481,611 | ||||||||
| Work-in-process | 334,967 | 351,451 | 30,679 | 35,858 | ||||||||||||
| Finished goods | 5,161,430 | 4,965,594 | 4,146,308 | 4,906,956 | ||||||||||||
| Subtotal | 9,717,121 | 10,286,831 | 6,752,697 | 9,424,425 | ||||||||||||
| Reserve for excess and obsolete inventory | (3,335,408 | ) | (3,287,771 | ) | (2,000,412 | ) | (4,144,013 | ) | ||||||||
| Total | $ | 6,381,713 | $ | 6,990,060 | $ | 4,752,285 | $ | 5,280,412 | ||||||||
Finished goods inventory includes units held by potential customers and sales agents for test and evaluation purposes. The cost of such units totaled $162,202$140,158 and $115,456$80,711 as of SeptemberJune 30, 20192020 and December 31, 2018,2019, respectively.
NOTE 5. FURNITURE, FIXTURES AND EQUIPMENT
Furniture, fixtures and equipment consisted of the following at September 30, 2019 and December 31, 2018:
Estimated Useful Life | September 30, 2019 | December 31, 2018 | ||||||||
| Office furniture, fixtures and equipment | 3-10 years | $ | 825,526 | $ | 802,681 | |||||
| Warehouse and production equipment | 3-5 years | 537,471 | 526,932 | |||||||
| Demonstration and tradeshow equipment | 2-5 years | 466,394 | 426,582 | |||||||
| Leasehold improvements | 2-5 years | 163,171 | 160,198 | |||||||
| Rental equipment | 1-3 years | 126,968 | 124,553 | |||||||
| Total cost | 2,119,530 | 2,040,946 | ||||||||
| Less: accumulated depreciation and amortization | (1,977,543 | ) | (1,793,405 | ) | ||||||
| Net furniture, fixtures and equipment | $ | 141,987 | $ | 247,541 | ||||||
Depreciation and amortization of furniture, fixtures and equipment aggregated $45,866 and $92,192 for the three months ended September 30, 2019 and 2018, respectively and $184,138 and $309,993 for the nine months ended September 30, 2019 and 2018, respectively.
NOTE 6.3. DEBT OBLIGATIONS
Proceeds investment agreementDebt obligations is comprised of the following:
September 30, 2019 | December 31, 2018 | |||||||
| 2018 Proceeds investment agreement, at fair value | $ | 6,417,000 | $ | 9,142,000 | ||||
| Less: Current portion | - | - | ||||||
| 2018 Proceeds investment agreement at fair value-less current portion | $ | 6,417,000 | $ | 9,142,000 | ||||
June 30, 2020 | December 31, 2019 | |||||||
| Payroll protection program loan (PPP) | $ | 1,418,900 | $ | — | ||||
| Economic injury disaster loan (EIDL) | 150,000 | — | ||||||
| 2019 Secured convertible notes, at fair value | — | 1,593,809 | ||||||
| Unsecured promissory notes payable, less unamortized discount of $-0- and $66,061 at June 30, 2020 and December 31, 2019, respectively | — | 233,939 | ||||||
| Debt obligations | 1,568,900 | 1,827,748 | ||||||
| Less: current maturities of debt obligations | 552,258 | 1,827,748 | ||||||
| Debt obligations, long-term | $ | 1,016,642 | $ | — | ||||
Debt obligations mature as follows as of June 30, 2020:
June 30, 2020 | ||||
| 2020 (July 1, 2020 to December 31, 2020) | $ | 68,241 | ||
| 2021 | 948,391 | |||
| 2022 | 401,321 | |||
| 2023 | 3,166 | |||
| 2024 | 3,286 | |||
| 2025 and thereafter | 144,495 | |||
| Total | $ | 1,568,900 | ||
2020 Small Business Administration Notes.
On April 4, 2020, the Company issued a promissory note in connection with the receipt of the PPP Loan of $1,418,900 under the SBA’s PPP Program under the CARES Act. The PPP Loan has a two-year term and bears interest at a rate of 1.0% per annum. Monthly principal and interest payments are deferred for six months after the date of disbursement and total $79,850.57 per month thereafter. The PPP Loan may be prepaid at any time prior to maturity with no prepayment penalties. The promissory note contains events of default and other provisions customary for a loan of this type. The PPP provides that the PPP Loan may be partially or wholly forgiven if the funds are used for certain qualifying expenses as described in the CARES Act. The Company intends to use the majority of the PPP Loan amount for qualifying expenses and to apply for forgiveness of the PPP Loan in accordance with the terms of the CARES Act.
On May 12, 2020 the Company received $150,000 in loan funding from the SBA under the EIDL program administered by the SBA, which program was expanded pursuant to the recently enacted CARES Act. The EIDL is evidenced by a promissory note, dated May 8, 2020, in the original principal amount of $150,000 with the SBA, the lender.
Under the terms of the note issued under the EIDL program, interest accrues on the outstanding principal at the rate of 3.75% per annum. The term of such note is thirty years, though it may be payable sooner upon an event of default under such note. Monthly principal and interest payments are deferred for twelve months after the date of disbursement and total $731.00 per month thereafter. Such note may be prepaid in part or in full, at any time, without penalty.
| 12 |
2019 Secured Convertible Notes.
On August 5, 2019, the Company, entered into a securities purchase agreement with several accredited investors providing for the issuance of (i) the Company’s 8% secured convertible notes due August 4, 2020 with a principal face amount of $2,777,777.78, which convertible notes are, subject to certain conditions, convertible into 1,984,126 shares of the Company’s common stock, at a price per share of $1.40 (the “2019 Convertible Notes”); (ii) five-year warrants to purchase an aggregate of 571,428 shares of Common Stock at an exercise price of $1.8125, which warrants are immediately exercisable upon issuance and on a cashless basis if the Warrants have not been registered 180 days after the date of issuance; and (iii) the issuance of shares of common stock equal to 5% of the aggregate purchase price of the convertible notes, with an aggregate value of $125,000 (the “Commitment Shares”). The accredited investors purchased the foregoing securities for an aggregate cash purchase price of $2,500,000.
Under the purchase agreement, the convertible notes and warrants contain provisions whereby the accredited investors are prohibited from exercising their rights to convert the notes or exercise the warrants if, as a result of such conversion or exercise, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of the Company’s common stock outstanding immediately after giving effect to such exercise. However, the investors may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice to the Company.
The Company elected to account for the secured convertible notes on the fair value basis. Therefore, the Company determined the fair value of the (1) secured convertible notes, (2) the Commitment Shares and (3) the common stock purchase warrants which yielded estimated fair values of the secured convertible notes including their embedded derivatives, the Commitment Shares and the detachable common stock purchase warrants. The following represents the resulting fair value as determined on August 5, 2019, the date of origination:
| Secured convertible notes | $ | 1,845,512 | ||
| Common stock issued as Commitment Shares | 118,749 | |||
| Common stock purchase warrants | 535,739 | |||
| Gross cash proceeds | $ | 2,500,000 |
During the six months ended June 30, 2020, the holders of the 2019 Convertible Notes exercised their right to convert principal balances aggregating $1,259,074 into equity. In addition, the Company paid regular monthly principal payments totaling $172,839 during the six months ended June 30, 2020 and on March 3, 2020, the Company exercised its right to prepay in cash the remaining outstanding principal balance aggregating $574,341. There remains no outstanding 2019 Convertible Notes as of June 30, 2020 as a result of these conversions and prepayments.
Under the fair value basis, the Company determines the fair value of the secured convertible notes and adjusts the carrying value of the secured convertible notes at each reporting date with the resulting charge or credit being reflected in the condensed consolidated statement of operations. Following is an analysis of the activity in the secured convertible notes during the six months ended June 30, 2020:
| Amount | ||||
| Balance at December 31, 2019 | $ | 1,593,809 | ||
| Principal repaid during the period by issuance of common stock | (1,259,074 | ) | ||
| Principal repaid during the period by payment of cash | (747,180 | ) | ||
| Change in fair value of secured convertible note during the period | 412,445 | |||
| Balance at June 30, 2020 | $ | — | ||
Following is a range of certain estimates and assumptions utilized as of December 31, 2019 to determine the fair value of secured convertible notes:
| December 31, 2019 | ||||
| Assumptions | ||||
| Volatility – range | 115 | % | ||
| Risk-free rate | 1.60 | % | ||
| Contractual term | 0.6 years | |||
| Calibrated stock price | $ | 1.06 | ||
| Debt yield | 123.6 | % | ||
2020 Secured Convertible Notes.
On April 17, 2020, the Company entered into a securities purchase agreement with several accredited investors providing for the issuance of (i) the Company’s 8% secured convertible notes due April 16, 2021 with a principal face amount of $1,666,666, which convertible notes are, subject to certain conditions, convertible into 1,650,164 shares of the Company’s common stock, at a price per share of $1.01 (the “2020 Convertible Notes”), and (ii) five-year warrants to purchase an aggregate of 1,237,624 shares of Common Stock at an exercise price of $1.31, which warrants are immediately exercisable upon issuance and on a cashless basis if the Warrants have not been registered 180 days after the date of issuance. The accredited investors purchased the foregoing securities for an aggregate cash purchase price of $1,500,000.
Under the purchase agreement, the convertible notes and warrants contain provisions whereby the accredited investors are prohibited from exercising their rights to convert the notes or exercise the warrants if, as a result of such conversion or exercise, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of the Company’s common stock outstanding immediately after giving effect to such exercise. However, the investors may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice to the Company.
The Company elected to account for the secured convertible notes on the fair value basis. Therefore, the Company determined the fair value of the secured convertible notes and the common stock purchase warrants which yielded estimated fair values of the secured convertible notes including their embedded derivatives and the detachable common stock purchase warrants. The following represents the resulting fair value as determined on April 17, 2020, the date of origination:
| Secured convertible notes | $ | 778,859 | ||
| Common stock purchase warrants | 721,141 | |||
| Gross cash proceeds | $ | 1,500,000 |
During the six months ended June 30, 2020, the holders of the 2020 Convertible Notes exercised their right to convert principal balances aggregating $1,665,666 into equity. In addition, on June 12, 2020, the Company exercised its right to prepay in cash the remaining outstanding principal balance aggregating $1,000. There remains no outstanding 2020 Convertible notes as of June 30, 2020 as a result of these conversions and prepayments.
Under the fair value basis, the Company determines the fair value of the secured convertible notes and adjusts the carrying value of the secured convertible notes at each reporting date with the resulting charge or credit being reflected in the condensed consolidated statement of operations. Following is an analysis of the activity in the secured convertible notes during the six months ended June 30, 2020:
| Amount | ||||
| Balance at December 31, 2019 | $ | — | ||
| Issuance of 2020 convertible notes at fair value | 778,859 | |||
| Principal repaid during the period by issuance of common stock | (1,665,666 | ) | ||
| Principal repaid during the period by payment of cash | (1,000 | ) | ||
| Change in fair value of secured convertible note during the period | 887,807 | |||
| Balance at June 30, 2020 | $ | — | ||
Following is a range of certain estimates and assumptions utilized as of the April 17, 2020 issuance date to determine the fair value of secured convertible notes:
| April 17, 2020 | ||||
| Assumptions | ||||
| Volatility – range | 90 | % | ||
| Risk-free rate | 0.36 | % | ||
| Contractual term | 1.0 years | |||
| Stock price | $ | 0.92 | ||
| Debt yield | 132.2 | % | ||
Unsecured Promissory Notes Payable.
On December 23, 2019, the Company, borrowed $300,000 under an unsecured note payable to a private, third-party lender. The promissory note bore interest at the rate of 8% per annum with principal and accrued interest payable on or before its maturity date of March 31, 2020 (this note was repaid in full on May 6, 2020). The Company granted the lender warrants exercisable to purchase a total of 107,000 shares of its common stock at an exercise price of $1.40 per share until December 23, 2024. The Company allocated $71,869 of the proceeds of the promissory note to additional paid-in-capital, which represented the grant date relative fair value of the warrants issued to the lender. The discount was amortized to interest expense ratably over the term of the promissory note which approximates the effective interest method. The amortization of discount resulted in $66,061 of the discount amortized to interest expense during the six months ended June 30, 2020.
On January 17, 2020, the Company, borrowed $100,000 under an unsecured note payable to a private, third-party lender. The promissory note bore interest at the rate of 8% per annum with principal and accrued interest payable on or before its maturity date of April 17, 2020. The Company granted the lender warrants exercisable to purchase a total of 35,750 shares of its common stock at an exercise price of $1.40 per share until January 17, 2025. The Company allocated $20,806 of the proceeds of the promissory note to additional paid-in-capital, which represented the grant date relative fair value of the warrants issued to the lender. The note was repaid in full on March 12, 2020 and the discount was amortized to interest expense through the date of payment. The amortization of discount resulted in $20,806 of the discount amortized to interest expense during the six months ended June 30, 2020.
2018 Proceeds Investment AgreementUnsecured Promissory Notes Payable – Related party.
During February and April 2020, the Company borrowed a total of $319,000 from the Company’s Chairman, CEO & President under an unsecured promissory note bearing interest at 6% through its May 28, 2020 maturity date. The proceeds from the note were used for general corporate purposes. The principal balance and related accrued interest was paid in full during the six months ended June 30, 2020. Total interest accrued and paid on this note was $5,236.
NOTE 4. PROCEEDS INVESTMENT AGREEMENT OBLIGATION
The proceeds investment agreement obligations is comprised of the following:
June 30, 2020 | December 31, 2019 | |||||||
| Proceeds investment agreement, at fair value | $ | 3,615,000 | $ | 6,500,000 | ||||
| Less: Current portion | (3,615,000 | ) | — | |||||
| Proceeds investment agreement, at fair value - Long-term | $ | — | $ | 6,500,000 | ||||
| 15 |
On July 31, 2018, the Company entered into a Proceeds Investment Agreement (the “PIA”) with Brickell Key Investments LP (“BKI”), pursuant to which BKI funded an aggregate of $500,000 (the “First Tranche”) to be used (i) to fund the Company’s litigation proceedings relating to the infringement of certain patent assets listed in the PIA and (ii) to repay the Company’s existing debt obligations and for certain working capital purposes set forth in the PIA. Pursuant to the PIA, BKI was granted an option to provide the Company with an additional $9.5 million, at BKI’s sole discretion (the “Second Tranche”). On August 21, 2018, BKI exercised its option on the Second Tranche for $9.5 million which completed the $10$10.0 million funding.
Pursuant to the PIA and in consideration for the $10.0 million in funding, the Company agreed to assign to BKI (i) 100% of all gross, pre-tax monetary recoveries paid by any defendant(s) to the Company or its affiliates agreed to in a settlement or awarded in judgment in connection with the patent assets, plus any interest paid in connection therewith by such defendant(s) (the “Patent Assets Proceeds”), up to the minimum return (as defined in the PIA) and (ii) if BKI has not received its minimum return by the earlier of a liquidity event (as defined in the PIA) and July 31, 2020, then the Company agreed to assign to BKI 100% of the Patent Asset Proceeds until BKI has received an amount equal to the minimum return on $4.0 million.
Pursuant to the PIA, the Company granted BKI (i) a senior security interest in the Patent Assets, the claims (as defined in the PIA) and the Patent Assets Proceeds until such time as the minimum return is paid, in which case, the security interest on the patent assets, the claims and the Patent Assets Proceeds will be released, and (ii) a senior security interest in all other assets of the Company until such time as the minimum return is paid on $4.0 million, in which case, the security interest on such other assets will be released.
The security interest is enforceable by BKI if the Company is in default under the PIA which would occur if (i) the Company fails, after five (5) days’ written notice, to pay any due amount payable to BKI under the PIA, Agreement, (ii) the Company fails to comply with any provision of the PIA or any other agreement or document contemplated under the PIA Agreement, (iii) the Company becomes insolvent or insolvency proceedings are commenced (and not subsequently discharged) with respect to the Company, (iv) the Company’s creditors commence actions against the Company (which are not subsequently discharged) that affect material assets of the Company, (v) the Company, without BKI’s consent, incurs indebtedness other than immaterial ordinary course indebtedness up to $500,000, (vi) the Company fails, within five (5) business days following the closing of the second tranche, to fully satisfy its obligations to certain holders of the Company’s senior secured convertible promissory notes listed in the PIA Agreement and fails to obtain unconditional releases from such holders as to the Company’s obligations to such holders and the security interests in the Company held by such holders or (vii) there is an uncured non-compliance of the Company’s obligations or misrepresentations by the Company under the PIA.
Under the PIA, the Company issued BKI a warrant to purchase up to 465,712 shares of the Company’s common stock par value $0.001 per share (the “PIA Warrant”), at an exercise price of $2.60 per share provided that the holder of the PIA Warrant will be prohibited from exercising the PIA Warrant if, as a result of such exercise, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of the Company’s common stock outstanding immediately after giving effect to such exercise. However, such holder may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice to the Company. The PIA Warrant is exercisable for five years from the date of issuance and is exercisable on a cashless exercise basis if there is no effective registration statement. No contractual registration rights were given.
The Company elected to account for the PIA on the fair value basis. Therefore, the Company determined the fair value of the PIA and PIA Warrants which yielded estimated fair values of the PIA including their embedded derivatives and the detachable PIA Warrants as follows:
| Proceeds investment agreement | $ | 9,067,513 | ||
| Common stock purchase warrants | 932,487 | |||
| Gross cash proceeds | $ | 10,000,000 |
The Company utilized a probability weighted present value of expected patent asset proceeds for the litigation involving both Axon Enterprises, Inc. (“Axon,” formerly known as Taser International, Inc.) and WatchGuard (see Note 9 – “Commitments and Contingencies”) which involved estimates of the amount and timing of the expected patent asset proceeds from the alleged patent infringement. The fair value of the PIA is updated for actual and estimated activity affecting the probability weighted present value of expected patent asset proceeds at each reporting date with the change charged/credited to operations. Following is a range of certain estimates and assumptions utilized as of June 30, 2020 and December 31, 2019 to probability weighted present value of expected patent asset proceeds for the litigation involving both Axon and WatchGuard:
During the nine months ended September 30,
| June 30, 2020 | December 31, 2019 | |||||||
| Discount rate | 15.13% -15.18% | 3.0% -16.6% | ||||||
| Expected term to patent asset proceeds payment | 0.33 years – 3.75 .06 - .29 years | 0.58 years - 4 years | ||||||
| Probability of success | 90.0 | % | 5.9% -38.5% | |||||
| Estimated minimum return payable to BKI | $ 4 million | $ 21 million | ||||||
| Negotiation discount | 0.0 | % | 43.3 | % | ||||
In May 2019, the Company settled its patent infringement litigation with WatchGuard whereby it received a lump-sum payment of $6.0 million as further described in Note 11.9 – “Commitments and Contingencies”. In accordance with the terms of the PIA, the Company remitted the $6.0 as a principal payment toward its minimum return payment obligations under the PIA. The Company recorded the receipt of the $6,000,000 settlement as Patent litigation settlement income in the accompanying condensed consolidated statement of operations.
The following represents activity in the PIA during the ninesix months ended SeptemberJune 30, 2019:2020:
| Beginning balance as of January 1, 2019 | $ | 9,142,000 | ||
| Repayment of obligation | (6,000,000 | ) | ||
| Change in the fair value during the period | 3,275,000 | |||
| Ending balance as of September 30, 2019 | $ | 6,417,000 |
2019 Secured Convertible Notes.
| Beginning balance as of December 31, 2019 | $ | 6,500,000 | ||
| Repayment of obligation | — | |||
| Change in the fair value during the period | (2,885,000 | ) | ||
| Ending balance as of June 30, 2020 | $ | 3,615,000 |
On August 5, 2019,Based on the recent unfavorable decisions by the United States Court of Appeals for the Tenth Circuit (see Note 9 – “Commitments and Contingencies”) the estimated future payments to BKI pursuant to the PIA has been reduced substantially resulting in the significant change in fair value (income) during the six months ended June 30, 2020. Subsequent to June 30, 2020 the Company also entered into a securities purchasesettlement agreement with several accredited investors providing forBKI which may further reduce its obligations under the issuance of (i) the Company’s 8% secured convertible notes due August 4, 2020 with a principal face amount of $2,777,777.78, which convertible notes are, subject to certain conditions, convertible into 1,984,126 shares of the Company’s common stock, at a price per share of $1.40; (ii) five-year warrants to purchase an aggregate of 571,428 shares of Common Stock at an exercise price of $1.8125, which warrants are immediately exercisable upon issuance and on a cashless basis if the Warrants have not been registered 180 days after the date of issuance; and (iii) the issuance of shares of common stock equal to 5% of the aggregate purchase price of the convertible notes, with an aggregate value of $125,000 (the “Commitment Shares”PIA. (See Note 14 – “Subsequent Events”). The accredited investors purchased the foregoing securities for an aggregate cash purchase price of $2,500,000.
Pursuant to the purchase agreement, an aggregate of $1,153,320 in principal amount of convertible notes (the “Registered Notes”), the conversion shares underlying the Registered Notes and all of the Commitment Shares were issued to the accredited investors in a registered direct offering pursuant to a prospectus supplement to the Company’s currently effective shelf registration statement on Form S-3. Accordingly, $1,153,320 in original principal amount of our convertible notes were issued as Registered Notes pursuant to the shelf registration statement and therefore freely tradable.
In a related transaction and in accordance with the purchase agreement, the Company issued to the accredited investors in a concurrent private placement pursuant to an exemption from the registration requirements of the Securities Act provided in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, (1) the remaining aggregate of $1,624,457.78 in principal amount of convertible notes, (2) the shares of common stock issuable from time to time upon conversion of such convertible notes, and (3) the common shares underlying the common stock purchase warrants. On September 5, 2019, the Company filed a Registration Statement on Form S-1 covering the securities issued in the concurrent private placement including an aggregate of $1,624,457.78 in principal amount of previously non-registered convertible notes, the shares of common stock issuable from time to time upon conversion of such non-registered convertible notes and the common stock underlying the common stock purchase warrants. Such Registration Statement on Form S-1 was declared effective by the Securities and Exchange Commission on September 12, 2019.
In connection with the purchase agreement, the Company and its subsidiary entered into a security agreement, dated as of August 5, 2019, with the investors, pursuant to which the Company and its subsidiary granted a security interest in, among other items, the Company and its subsidiary’s accounts, chattel paper, documents, equipment, general intangibles, instruments and inventory, and all proceeds, as set forth in the security agreement. In addition, pursuant to an intellectual property security agreement, dated as of August 5, 2019, the Company granted a continuing security interest in all of the Company’s right, title and interest in, to and under certain of the Company’s trademarks, copyrights and patents. In addition, the Company’s subsidiary jointly and severally agreed to guarantee and act as surety for the Company’s obligation to repay the convertible notes pursuant to a subsidiary guarantee.
Under the purchase agreement, the convertible notes and warrants contain provisions whereby the accredited investors are prohibited from exercising their rights to convert the notes or exercise the warrants if, as a result of such conversion or exercise, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of the Company’s common stock outstanding immediately after giving effect to such exercise. However, the investors may increase or decrease such percentage to any other percentage not in excess of 9.99%, provided that any increase in such percentage shall not be effective until 61 days after such notice to the Company.
The Company elected to account for the secured convertible notes on the fair value basis. Therefore, the Company determined the fair value of the (1) secured convertible notes, (2) the Commitment Shares and (3) the common stock purchase warrants which yielded estimated fair values of the secured convertible notes including their embedded derivatives, the Commitment Shares and the detachable common stock purchase warrants. The following represents the resulting fair value as determined on August 5, 2019, the date of origination:
| Secured convertible notes | $ | 1,845,512 | ||
Common stock issued as Commitment Shares | 118,749 | |||
| Common stock purchase warrants | 535,739 | |||
| Gross cash proceeds | $ | 2,500,000 |
Under the fair value basis, the Company determines the fair value of the secured convertible notes and adjusts the carrying value of the secured convertible notes at each reporting date with the resulting charge or credit being reflected in the consolidated statement of operations. Following is an analysis of the activity in the secured convertible notes during the nine months ended September 30, 2019:
| Amount | ||||
| Balance at December 31, 2018 | $ | — | ||
| Issuance of convertible notes on August 5, 2019, at fair value | 1,845,512 | |||
| Principal repaid during the period by issuance of common stock | (648,067 | ) | ||
| Principal repaid during the period by payment of cash | — | |||
| Change in fair value of secured convertible note during the period | 408,860 | |||
| Balance at September 30, 2019 | $ | 1,606,305 | ||
Under the fair value basis, legal, accounting and miscellaneous costs directly related to the issuance of the secured convertible notes are charged to expense as incurred. A total of $89,148 of such issuance costs were charged to operations during the three and nine months ended September 30, 2019.
NOTE 7.5. FAIR VALUE MEASUREMENT
In accordance with ASC Topic 820 —Fair Value Measurements and Disclosures (“ASC 820”), the Company utilizes the market approach to measure fair value for its financial assets and liabilities. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets, liabilities or a group of assets or liabilities, such as a business.
ASC 820 utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three broad levels. The following is a brief description of those three levels:
| ● | Level 1 — Quoted prices in active markets for identical assets and liabilities |
| ● | Level 2 — Other significant observable inputs (including quoted prices in active markets for similar assets or liabilities) |
| ● | Level 3 — Significant unobservable inputs (including the Company’s own assumptions in determining the fair value) |
The following table represents the Company’s hierarchy for its financial assets and liabilities measured at fair value on a recurring basis as of SeptemberJune 30, 20192020 and December 31, 2018.2019:
| September 30, 2019 | June 30, 2020 | |||||||||||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||
| Liabilities: | ||||||||||||||||||||||||||||||||
| Proceeds investment agreement | $ | — | $ | — | $ | 6,417,000 | $ | 6,417,000 | ||||||||||||||||||||||||
| Secured convertible notes | $ | — | $ | — | 1,606,305 | 1,606,305 | $ | — | $ | — | $ | — | $ | — | ||||||||||||||||||
| Proceeds investment agreement obligation | — | — | 3,615,000 | 3,615,000 | ||||||||||||||||||||||||||||
| $ | — | $ | — | $ | 8,023,305 | $ | 8,023,305 | $ | — | $ | — | $ | 3,615,000 | $ | 3,615,000 | |||||||||||||||||
| December 31, 2018 | December 31, 2019 | |||||||||||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||
| Liabilities: | ||||||||||||||||||||||||||||||||
| Proceeds investment agreement | $ | — | $ | — | $ | 9,142,000 | $ | 9,142,000 | ||||||||||||||||||||||||
| Secured convertible notes | $ | — | $ | — | $ | 1,593,809 | $ | 1,593,809 | ||||||||||||||||||||||||
| Proceeds investment agreement obligation | — | — | 6,500,000 | 6,500,000 | ||||||||||||||||||||||||||||
| $ | — | $ | — | $ | 8,093,809 | $ | 8,093,809 | |||||||||||||||||||||||||
The following table represents the change in Level 3 tier value measurements:
| Proceeds Investment Agreement | Secured Convertible Notes | Total | ||||||||||
| December 31, 2018 | $ | 9,142,000 | $ | — | $ | 9,142,000 | ||||||
| Repayment of obligation | (6,000,000 | ) | — | (6,000,000 | ) | |||||||
| Issuance of secured convertible notes | — | 1,845,512 | 1,845,512 | |||||||||
| Conversion of principal to equity | — | (648,067 | ) | (648,067 | ) | |||||||
| Change in fair value | 3,275,000 | 408,860 | 3,683,860 | |||||||||
| September 30, 2019 | $ | 6,417,000 | $ | 1,606,305 | $ | 8,023,305 | ||||||
| 2019 | 2020 | |||||||||||||||
| Secured | Secured | Proceeds | ||||||||||||||
| Convertible | Convertible | Investment | ||||||||||||||
| Notes | Notes | Agreement | Total | |||||||||||||
| Balance, December 31, 2019 | $ | 1,593,809 | $ | — | $ | 6,500,000 | $ | 8,093,809 | ||||||||
| Issuance of secured convertible debt | — | 778,859 | — | 778,859 | ||||||||||||
| Conversion of secured convertible debentures | (1,259,074 | ) | (1,665,666 | ) | — | (2,924,740 | ) | |||||||||
| Repayment of secured convertible notes | (747,180 | ) | (1,000 | ) | — | (748,180 | ) | |||||||||
| Change in fair value of secured convertible debentures and proceeds investment agreement | 412,445 | 887,807 | (2,885,000 | ) | (1,548,748 | ) | ||||||||||
| Balance, June 30, 2020 | $ | — | $ | — | $ | 3,615,000 | $ | 3,615,000 | ||||||||
NOTE 8.6. ACCRUED EXPENSES
Accrued expenses consistedcomprised of the following at SeptemberJune 30, 20192020 and December 31, 2018:2019:
September 30, 2019 | December 31, 2018 | June 30, 2020 | December 31, 2019 | |||||||||||||
| Accrued warranty expense | $ | 61,640 | $ | 195,135 | $ | 30,711 | $ | 17,838 | ||||||||
| Accrued litigation costs | 265,000 | 1,119,445 | 250,000 | 295,000 | ||||||||||||
| Accrued sales commissions | 33,583 | 25,750 | 25,772 | 28,480 | ||||||||||||
| Accrued payroll and related fringes | 385,101 | 186,456 | 181,970 | 233,254 | ||||||||||||
| Accrued insurance | 136,345 | 71,053 | 60,894 | 78,579 | ||||||||||||
| Accrued sales returns and allowances | 30,124 | 13,674 | 10,267 | 18,258 | ||||||||||||
| Accrued sales taxes | 43,900 | 50,136 | ||||||||||||||
| Other | 165,689 | 469,154 | 235,233 | 124,336 | ||||||||||||
| $ | 1,077,482 | $ | 2,080,667 | $ | 838,747 | $ | 845,881 | |||||||||
Accrued warranty expense was comprised of the following for the ninesix months ended SeptemberJune 30, 2019:2020:
| 2019 | ||||||||
| Beginning balance | $ | 195,135 | $ | 17,838 | ||||
| Provision for warranty expense | 37,648 | 52,796 | ||||||
| Charges applied to warranty reserve | (171,143 | ) | (39,923 | ) | ||||
| Ending balance | $ | 61,640 | $ | 30,711 | ||||
NOTE 9.7. INCOME TAXES
The effective tax rate for the ninesix months ended SeptemberJune 30, 20192020 and 20182019 varied from the expected statutory rate due to the Company continuing to provide a 100% valuation allowance on net deferred tax assets. The Company determined that it was appropriate to continue the full valuation allowance on net deferred tax assets as of SeptemberJune 30, 20192020 primarily because of the Company’s history of operating losses.
The Company has incurred operating losses in recent years and it continues to be in a three-year cumulative loss position at SeptemberJune 30, 2019.2020. Accordingly, the Company determined there was not sufficient positive evidence regarding its potential for future profits to outweigh the negative evidence of our three-year cumulative loss position under the guidance provided in ASC 740. Therefore, it determined to continue to provide a 100% valuation allowance on its net deferred tax assets. The Company expects to continue to maintain a full valuation allowance until it determines that it can sustain a level of profitability that demonstrates its ability to realize these assets. To the extent the Company determines that the realization of some or all of these benefits is more likely than not based upon expected future taxable income, a portion or all of the valuation allowance will be reversed. As of June 30, 2020, it had approximately $66,925,000 of net operating loss carryforwards and $1,795,000 of research and development tax credit carryforwards as determined on December 31, 2019 available to offset future net taxable income.
NOTE 10.8. OPERATING LEASELEASES
On May 13, 2020, the Company entered into an operating lease for new warehouse and office space which will serve as its new principal executive office and primary business location. The terms of the lease include no base rent for the first six months and monthly payments ranging from $12,398 to $13,693 thereafter, with a termination date of December 2026. The Company is responsible for property taxes, utilities, insurance and its proportionate share of common area costs related to its new location. The Company took possession of the leased facilities on June 15, 2020. The remaining lease term for the Company’s office and warehouse operating lease as of June 30, 2020 was seventy-eight months. The Company’s previous office and warehouse space lease expired in April 2020 and the Company paid holdover rent for the time period until it moved to and commenced occupying the new space on June 15, 2020.
The Company entered into an operating lease with a third party in September 2012October 2019 for copiers used for office and warehouse space in Lenexa, Kansas.purposes. The terms of the lease include 48 monthly payments ranging from $38,026 to $38,533of $1,598 with a maturity date of April 2020.October 2023. The Company has the option to renewpurchase the equipment at maturity for an additional three years beyond the original expiration date, which may be exercisedits estimated fair market value at the Company’s sole discretion.that point in time. The Company evaluated the renewal option at the lease commencement date to determine if it is reasonably certain the exercise the option and concluded that it is not reasonably certain that any options will be exercised. The weighted average remaining lease term for the Company’s copier operating lease as of SeptemberJune 30, 20192020 was .58 years.40 months.
ExpenseLease expense related to the office space and copier operating lease wasleases were recorded on a straight-line basis over thetheir respective lease term. Leaseterms. Total lease expense under the operating lease was approximately $298,292$252,290 for the ninesix months ended SeptemberJune 30, 2019.2020.
The discount rate implicit within the Company’s operating leaseleases was not generally determinable and therefore the Companyit determined the discount rate based on its incremental borrowing rate on the information available at commencement date. As of September 30, 2019,commencement date, the operating lease liabilities reflect a weighted average discount rate of 8%.
The following sets forth the operating lease right of use assets and liabilities as of SeptemberJune 30, 2019:2020:
| Assets: | ||||
| Operating lease right of use assets | $ | 167,443 | ||
| Liabilities: | ||||
| Operating lease obligations-current portion | $ | 248,603 | ||
| Operating lease obligations-less current portion | $ | — | ||
| Total operating lease obligations | $ | 248,603 | ||
| Assets: | ||||
| Operating lease right of use assets | $ | 769,635 | ||
| Liabilities: | ||||
| Operating lease obligations-Long-term portion | $ | 731,334 | ||
| Operating lease obligations-Current portion | $ | 44,308 | ||
| Total operating lease obligations | $ | 775,642 |
The components of lease expense were as follows for the six months ended June 30, 2020:
| Selling, general and administrative expenses | $ | 252,290 |
Following are the minimum lease payments for each year and in total.
| Year ending December 31: | ||||
| 2019 (period from October 1, 2019 to December 31, 2019) | $ | 115,092 | ||
| 2020 | 154,131 | |||
| $ | 269,223 | |||
| Year ending December 31: | ||||
| 2020 (July 1, to December 31, 2020) | $ | 21,986 | ||
| 2021 | 169,691 | |||
| 2022 | 172,666 | |||
| 2023 | 172,542 | |||
| 2024 | 159,703 | |||
| Thereafter | 310,259 | |||
| Total undiscounted minimum future lease payments | 1,006,847 | |||
| Imputed interest | (231,205 | ) | ||
| Total operating lease liability | $ | 775,642 | ||
NOTE 11.9. COMMITMENTS AND CONTINGENCIES
COVID-19 pandemic
The World Health Organization has declared the outbreak of COVID-19, or coronavirus, which began in December 2019, a pandemic and the U.S. federal government has declared it a national emergency. Our business, financial condition, results of operations and cash flows could be materially and adversely affected by the effects of COVID-19. The global spread of COVID-19 has already created significant volatility, uncertainty and economic disruption in the markets in which we operate. Governments, public institutions, and other organizations in countries and localities where cases of COVID-19 have been detected are taking certain emergency measures to mitigate its spread, including implementing travel restrictions and closing factories, schools, public buildings, and businesses. While the full impact of this outbreak is not yet known, we are closely monitoring the spread of COVID-19 and continually assessing its potential effects on our business.
The extent to which our results are affected by COVID-19 will largely depend on future developments which cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to the pandemic and the impact on the global economy, our customers’ demand for our products and services, and our ability to provide our products and services, particularly as result of our employees working remotely and/or the closure of certain offices and facilities.
Litigation.
From time to time, the Company iswe are notified that itwe may be a party to a lawsuit or that a claim is being made against us. It is the Company’sour policy to not disclose the specifics of any claim or threatened lawsuit until the summons and complaint are actually served on it.us. After carefully assessing the claim, and assuming the Company determineswe determine that it iswe are not at fault or it disagreeswe disagree with the damages or relief demanded, itwe vigorously defendsdefend any lawsuit filed against us. It recordsWe record a liability when losses are deemed probable and reasonably estimable. When losses are deemed reasonably possible but not probable, the Company determineswe determine whether it is possible to provide an estimate of the amount of the loss or range of possible losses for the claim, if material for disclosure. In evaluating matters for accrual and disclosure purposes, it takeswe take into consideration factors such as itsour historical experience with matters of a similar nature, the specific facts and circumstances asserted, the likelihood of our prevailing, the availability of insurance, and the severity of any potential loss. It reevaluatesWe reevaluate and updatesupdate accruals as matters progress over time.
While the ultimate resolution is unknown, based on the Company doesinformation currently available, we do not expect that these lawsuits will individually, or in the aggregate, have a material adverse effect to our results of operations, financial condition orand cash flows. However, the outcome of any litigation is inherently uncertain and there can be no assurance that any expense, liability or damages that may ultimately result from the resolution of these matters will be covered by itsour insurance or will not be in excess of amounts recognized or provided by insurance coverage and will not have a material adverse effect on itsour operating results, financial condition or cash flows.
Axon
The Company owns U.S. Patent No. 9,253,452 (the “ ‘452 Patent”), which generally covers the automatic activation and coordination of multiple recording devices in response to a triggering event, such as a law enforcement officer activating the light bar on the vehicle.
The Company filed suit on January 15, 2016 in the U.S. District Court for the District of Kansas (the “U.S. District Court”) (Case No: 2:16-cv-02032) against Axon, alleging willful patent infringement against Axon’s body camera product line and Signal auto-activation product. The Company is seeking both monetary damages and a permanent injunction against Axon for infringement of the ‘452 Patent.
In addition to the infringement claims, the Company brought claims alleging that Axon conspired to keep the Company out of the marketplace by engaging in improper, unethical, and unfair competition. The amended lawsuit alleges Axon bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. The Company’s lawsuit also seeks monetary and injunctive relief, including treble damages, for these alleged violations.
Axon filed an answer, which denied the patent infringement allegations on April 1, 2016. In addition, Axon filed a motion to dismiss all allegations in the complaint on March 4, 2016 for which the Company filed an amended complaint on March 18, 2016 to address certain technical deficiencies in the pleadings. Digital amended its complaint and Axon renewed its motion to seek dismissal of the allegations that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law on April 1, 2016. Formal discovery commenced on April 12, 2016 with respect to the patent related claims. In January 2017, the Court granted Axon’s motion to dismiss the portion of the lawsuit regarding claims that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. On May 2, 2018, the Federal Circuit affirmed the District Court’s ruling and on October 1, 2018 the Supreme Court denied Digital Ally’s petition for review.
In December 2016 and January 2017, Axon filed two petitions forInter Partes Review (“IPR”) against the ‘452 Patent. The United States Patent and Trademark Office (“USPTO”) rejected both of Axon’s petitions. Axon is now statutorily precluded from filing any more IPR petitions against the ‘452 Patent.
The U.S. District Court litigation in Kansas was temporarily stayed following the filing of the petitions for IPR. However, on November 17, 2017, the FederalU.S. District Court of Kansas rejected Axon’s request to maintain the stay. With this significant ruling, the parties will now proceedproceeded towards trial. Since litigation has resumed,trial, after which the Court has issued a claim construction order (also called aMarkmanOrder) where it sided with the Company on all disputes and denied Axon’s attempts to limit the scope of the claims. Following theMarkman Order, the Court set all remaining deadlines in the case. Fact discovery closed on October 8, 2018, and a Final Pretrial Conference took place on January 16, 2019. The parties filed motions for summary judgment on January 31, 2019.
On June 17, 2019, the U.S. District Court granted Axon’s motion for summary judgment that Axon did not infringe on the Company’s patent and dismissed the case. Importantly, theThe U.S. District Court’s ruling did not find that Digital’sthe ‘452 Patent was invalid. It also did not address any other issue, such as whether Digital’sthe Company’s requested damages were appropriate, and it did not impact the Company’s ability to file additional lawsuits to hold other competitors accountable for patent infringement. This ruling solely related to an interpretation of the Company’s claims as they relate to Axon and was unrelated to the supplemental briefing Digital recentlythe Company filed on its damages claim and the WatchGuard settlement. Those issues are separate and the judge’sU.S. District Court’s ruling on the motion for summary judgment had nothing to do with Digital’sthe Company’s damages request. The Company has filed an appeal to this ruling and has asked the appellate court to reverse this decision.
The Company filed its Opening Appeal Briefan opening appeal brief on August 26, 2019 andwith the U.S. Court of Appeals for the Tenth Circuit (the “Court of Appeals”), appealing the U.S. District Court’s granting of Axon’s motion for summary judgment. Axon filed its Responsive Briefresponded by filing a responsive brief on November 6, 2019. The Company will file its Reply Brief2019 and we then filed a reply brief responding to Axon no later thanon November 27, 2019. The Court of Appeals scheduled oral arguments on our appeal of the U.S. District Court’s summary judgment ruling on April 6, 2020. This appeal was intended to address the Company’s position that the U.S. District Court incorrectly dismissed our claims against Axon. If the Court of Appeals overturns the ruling of the U.S. District Court, the case will be remanded to the U.S District Court before a new judge. On March 12, 2020, the panel of judges for the Court of Appeals issued an order cancelling the oral arguments previously set for April 6, 2020, having determined that the appeal will be decided solely based on the parties’ briefs. On April 22, 2020, a three-judge panel of the United States Court of Appeals denied our appeal and affirmed the District Court’s previous decision to grant Axon summary judgment. On May 22, 2020, we filed a petition for panel rehearing requesting that we be granted a rehearing of our appeal of the U.S. District Court’s summary judgment ruling. Furthermore, we requested that we be given an opportunity to make our case through oral argument in front of the three-judge panel of the Court of Appeals, which was also denied. The Company is reviewing its alternatives at this point.
WatchGuard
On May 27, 2016, the Company filed suit against WatchGuard (Case No. 2:16-cv-02349-JTM-JPO) alleging patent infringement based on WatchGuard’s VISTA Wifi and 4RE In-Car product lines.
On May 13, 2019, the parties resolved the dispute and executed a settlement agreement in the form of a Release and License Agreement. The litigation has been dismissed as a result of this settlement.
The Release and License Agreement encompassescontains the following key terms:
| ● | WatchGuard paid Digital Ally a one-time, lump settlement payment of $6,000,000. | |
| ● | Digital Ally granted WatchGuard a perpetual covenant not to sue if WatchGuard’s products incorporate agreed-upon modified recording functionality. Digital Ally also granted WatchGuard a license to the ‘292 Patent and the ‘452 Patent (and related patents, now existing and yet-to-issue) through December 31, 2023. The parties agreed to negotiate in good faith to attempt to resolve any alleged infringement that occurs after the license period expires. | |
| ● | The parties further agreed to release each other from all claims or liabilities pre-existing the settlement. | |
| ● | As part of the settlement, the parties agreed that WatchGuard made no admission that it infringed any of Digital Ally’s patents. |
Upon receipt of the $6,000,000 the parties filed a joint motion to dismiss the lawsuit with the court, which the Judgewas granted.
PGA Tour, Inc.NASDAQ LISTING.
On July 11, 2019, we were officially notified by The Nasdaq Stock Market LLC that, for the previous 30 consecutive business days, the minimum Market Value of Listed Securities (the “MVLS”) for our Common Stock was below the $35 million minimum MVLS requirement for continued listing on Nasdaq under Nasdaq Listing Rule 5550(b)(2). In accordance with Nasdaq Listing Rule 5810(c)(3)(C), we had 180 calendar days, or until January 22, 20197, 2020, to regain compliance with the PGA Tour, Inc. (the “PGA”) filed suit against the CompanyMVLS Rule, or in the Federal District Court foralternative, the Districtminimum stockholders’ equity requirement of Kansas (Case No. 2:19-cv-0033-CM-KGG) alleging breach of contract and breach of implied covenant of good faith and fair dealing relative to the Web.com Tour Title Sponsor Agreement (the “Agreement”). The contract was executed on April 16, 2015 by and between the parties. Under the Agreement, Digital Ally would be a title sponsor of and receive certain naming and other rights and benefits associated$2,500,000. To regain compliance with the Web.com TourMVLS Rule, the minimum MVLS for 2015 through 2019 in exchangeour Common Stock must have been at least $35 million for Digital Ally’s paymenta minimum of 10 consecutive business days at any time during this 180-day period. If we failed to Tour of annual sponsorship fees.
The suit hasregain compliance with either the MVLS Rule or the minimum stockholders’ equity requirement by January 7, 2020, we could have been resolved and the case has been dismissed by Plaintiff with prejudice on April 17, 2019.
401 (k) Plan.The Company sponsors a 401(k) retirement savings plan for the benefit of its employees. The plan, as amended, requires it to provide 100% matching contributions for employees, who elect to contribute up to 3% of their compensation to the plan and 50% matching contributions for employee’s elective deferrals on the next 2% of their contributions. The Company has made matching contributions totaling $27,235 and $26,680 for the three months ended September 30, 2019 and 2018, respectively, and $80,645 and $85,028 for the nine months ended September 30, 2019 and 2018, respectively. Each participant is 100% vested at all times in employee and employer matching contributions.delisted from Nasdaq.
ConsultingOn January 8, 2020, we received a determination letter from the staff of The Nasdaq Stock Market LLC stating that we had not regained compliance with the MVLS Standard, since our Common Stock was below the $35 million minimum MVLS requirement for continued listing on Nasdaq under the MLVS Rule and Distributor Agreements.The Company entered intohad not been at least $35 million for a minimum of 10 consecutive business days at any time during the 180-day grace period granted to us. Pursuant to the Letter, unless we requested a hearing to appeal this determination by January 15, 2020, our Common Stock would have been delisted from Nasdaq, trading of our Common Stock would have been suspended at the opening of business on January 17, 2020, and a Form 25-NSE would have been filed with the SEC, which would have removed our Common Stock from listing and registration on Nasdaq.
On January 13, 2020, we requested a hearing before the Nasdaq Hearings Panel to appeal the Letter and a hearing was held on February 20, 2020, when we appeared before the Panel to discuss our plan to regain compliance, including, but not limited to, complying with Nasdaq Listing Rule 5550(b)(1), which is the minimum stockholders’ equity standard for continued listing, which requires that companies listed on Nasdaq maintain a minimum of $2,500,000 in stockholders’ equity (“Rule 5550(b)(1)”). On March 6, 2020, we received written notice from the Panel indicating that, based on the plan of compliance that we had presented at such hearing, the Panel granted our request for the continued listing of our Common Stock on Nasdaq, subject to, among other things, us keeping the Staff updated on the progress of our compliance plan and ultimately being able to evidence shareholder equity in an agreementamount greater than or equal to $2,500,000 in accordance with Rule 5550(b)(1) no later than June 30, 2020. During this time, our Common Stock remained listed and trading on Nasdaq.
On June 4, 2020 and June 10, 2020, we consummated underwritten public offerings, pursuant to underwriting agreements and raised aggregate gross proceeds of approximately $11.3 million, before underwriting discounts and commissions and other estimated expenses of such offerings. As a result of such offerings, we achieved compliance withRule 5550(b)(1) and on June 18, 2020 we received written notice from the Staff stating that required itwe had regained compliance with such rule and the matter is now closed.
On April 22, 2020, we received a written notification from the Nasdaq Stock Market LLC indicating that we were not in compliance with Nasdaq Listing Rule 5550(a)(2), as the closing bid price for our Common Stock was below $1.00 per share for the last thirty (30) consecutive business days. Pursuant to make monthly paymentsNasdaq Listing Rule 5810(c)(3)(A), we were granted a 180-calendar day compliance period to regain compliance with the minimum bid price requirement. Subsequently, the 180-day grace period to regain compliance with such minimum bid price requirement under applicable Nasdaq Stock Market LLC rules was extended due to the global market impact caused by COVID-19. More specifically, the Nasdaq Stock Market LLC has stated that the compliance periods for any company previously notified about non-compliance will be applied to future commissions and/or consulting fees to be earned by the provider. The agreement is with a limited liability company (“LLC”) that is minority owned by a relative of the Company’s chief financial officer. Under the agreement, dated January 15, 2016 and as amended on February 13, 2017, the LLC provides consulting services for developing a new distribution channel outside of law enforcement for its body-worn camera and related cloud storage products to customers in the United States. The Company advanced amounts to the LLC against commissions ranging from $5,000 to $6,000 per month plus necessary and reasonable expenses for the periodsuspended effective April 16, 2020, through June 30, 2017, which can2020. On July 1, 2020, companies not in compliance would receive the balance of any pending compliance period exception to come back into compliance with such minimum bid price requirement. As a result of this extension, we had until December 28, 2020, to regain compliance with such minimum bid price requirement. During the compliance period, our Common Stock would still continue to be automatically extended basedlisted and traded on Nasdaq. To regain compliance, the LLC achievingclosing bid price of the Common Stock had to have met or exceeded $1.00 per share for at least ten (10) consecutive business days by December 28, 2020. On June 11, 2020, our Common Stock met such minimum sales quotas. The agreement was renewed in January 2017 for a periodbid price requirement, as the closing sale price of three years, subject to yearly minimum sales thresholdsour Common Stock had equaled or exceeded $1.00 per share on Nasdaq at the close of each trading day since May 29, 2020, and we received written notice from the Staff stating that would allow the Company to terminate the contract ifregained compliance with such minimums are not met. As of September 30, 2019, the Company had advanced a total of $276,150 pursuant to this agreement and established an allowance reserve of $164,140 for a net advance of $112,010. The minimum sales threshold has not been metrequirement and the Company has discontinued all advances, although the contract has not been formally terminated. However, the exclusivity provisions of the agreement have been terminated.matter is now closed.
On June 1, 2018 the Company entered into an agreement with an individual that required it to make monthly payments that will be applied to future commissions and/or consulting fees to be earned by the provider. Under the agreement, the individual provides consulting services for developing new distribution channels both inside and outside of law enforcement for its in-car and body-worn camera systems and related cloud storage products to customers within and outside the United States. The Company was required to advance amounts to the individual as an advance against commissions of $7,000 per month plus necessary and reasonable expenses for the period through August 31, 2018, which was extended to December 31, 2018 by mutual agreement of the parties at $6,000 per month. The parties have mutually agreed to further extend the arrangement on a monthly basis at $5,000 per month. As of September 30, 2019, the Company had advanced a total of $53,332 pursuant to this agreement.
NOTE 12.10. STOCK-BASED COMPENSATION
The Company recorded pretax compensation expense related to the grant of stock options and restricted stock issued of $405,579$376,738 and $669,480$585,195 for the three months ended SeptemberJune 30, 2020 and 2019 and 2018, respectively,$688,415 and $1,715,972 and $1,757,227$1,310,393 for the ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, respectively.
As of SeptemberJune 30, 2019,2020, the Company had adopted seven separate stock option and restricted stock plans: (i) the 2005 Stock Option and Restricted Stock Plan (the “2005 Plan”), (ii) the 2006 Stock Option and Restricted Stock Plan (the “2006 Plan”), (iii) the 2007 Stock Option and Restricted Stock Plan (the “2007 Plan”), (iv) the 2008 Stock Option and Restricted Stock Plan (the “2008 Plan”), (v) the 2011 Stock Option and Restricted Stock Plan (the “2011 Plan”), (vi) the 2013 Stock Option and Restricted Stock Plan (the “2013 Plan”), (vii) the 2015 Stock Option and Restricted Stock Plan (the “2015 Plan”) and (vii) the 2018 Stock Option and Restricted Stock Plan (the “2018 Plan”). The 2005 Plan, 2006 Plan, 2007 Plan, 2008 Plan, 2011 Plan, 2013 Plan, 2015 Plan and 2018 Plan are referred to as the “Plans.”
These Plans permit the grant of stock options or restricted stock to its employees, non-employee directors and others for up to a total of 4,175,000 shares of common stock. The 2005 Plan terminated during 2015 with 19,678 shares not awarded or underlying options, which shares are now unavailable for issuance. Stock options granted under the 2005 Plan that remain unexercised and outstanding as of SeptemberJune 30, 20192020 total 8,063.7,563. The 2006 Plan terminated during 2016 with 24,66225,849 shares not awarded or underlying options, which shares are now unavailable for issuance. Stock options granted under the 2006 Plan that remain unexercised and outstanding as of SeptemberJune 30, 20192020 total 42,812.39,750. The 2007 Plan terminated during 2017 with 88,40189,651 shares not awarded or underlying options, which shares are now unavailable for issuance. Stock options granted under the 2007 Plan that remain unexercised and outstanding as of SeptemberJune 30, 20192020 total 6,250.5,000. The 2008 Plan terminated during 2018 with 8,2499,249 shares not awarded or underlying options, which shares are now unavailable for issuance. Stock options granted under the 2008 Plan that remain unexercised and outstanding as of June 30, 2020 total 31,250.
Our Board of Directors adopted the 2020 Stock Option and Restricted Stock Plan (the “2020 Plan”) on June 30, 2020. At the annual meeting of the Company’s stockholders to be held on September 9, 2020 (the “Annual Meeting”) the Company is asking its stockholders to approve the 2020 Plan and the reservation of 1,500,000 shares of common stock issuable under the 2020 Plan. The 2020 Plan would authorize us to issue 1,500,000 shares of Common Stock upon exercise of options and grant of restricted stock awards. No options have been granted under the 2020 Plan to date. The 2020 Plan would also authorize us to grant (i) to the key employees incentive stock options to purchase shares of Common Stock and non-qualified stock options to purchase shares of Common Stock and restricted stock awards and (ii) to non-employee directors and consultants non-qualified stock options and restricted stock. As of June 30, 2019 total 32,250.2020, approximately 78 employees, two executive officers, and three non-employee directors were eligible to participate in the 2020 Plan.
The Company believes that such awards better align the interests of our employees with those of its stockholders. Option awards have been granted with an exercise price equal to the market price of its stock at the date of grant with such option awards generally vesting based on the completion of continuous service and having ten-year contractual terms. These option awards typically provide for accelerated vesting if there is a change in control (as defined in the Plans). The Company has registered all shares of common stock that are issuable under its Plans with the SEC.SEC, except for shares of Common Stock issuable under the 2020 Plan, which the Company expects to register after the Annual Meeting, if the 2020 Plan is approved by the Company’s stockholders. A total of 629,1861,437 shares remained available for awards under the various Plans (other than the 2020 Plan) as of SeptemberJune 30, 2019.2020, and a total of 1,500,000 shares of Common Stock remained available for awards under the 2020 Plan as of June 30, 2020, which awards are not available for grant until the 2020 Plan is approved by the Company’s stockholders at the Annual Meeting, or which awards are terminable if such approval is not obtained, depending on the type of award available under the 2020 Plan.
The fair value of each option award is estimated on the date of grant using a Black-Scholes option valuation model.
Activity in the various Plans during the ninesix months ended SeptemberJune 30, 2019 is reflected in the following table:2020:
| Options | Number of Shares | Weighted Average Exercise Price | Number of Shares | Weighted Average Exercise Price | ||||||||||||
| Outstanding at January 1, 2019 | 434,012 | $ | 4.62 | |||||||||||||
| Outstanding at December 31, 2019 | 589,125 | $ | 3.74 | |||||||||||||
| Granted | 180,000 | 3.01 | — | — | ||||||||||||
| Exercised | — | — | (1,875 | ) | 4.16 | |||||||||||
| Forfeited | (24,887 | ) | (13.78 | ) | (3,937 | ) | (12.14 | ) | ||||||||
| Outstanding at September 30, 2019 | 589,125 | $ | 3.74 | |||||||||||||
| Exercisable at September 30, 2019 | 454,125 | $ | 3.96 | |||||||||||||
| Outstanding at June 30, 2020 | 583,313 | $ | 3.69 | |||||||||||||
| Exercisable at June 30, 2020 | 583,313 | $ | 3.69 | |||||||||||||
The fair value of each option award is estimated on the date of grant using a Black-Scholes option valuation model. The total estimated grant date fair value stock options issued during the ninesix months ended SeptemberJune 30, 20192020 was $436,217.
The Company has utilized the following assumptions in its Black-Scholes option valuation model to calculate the estimated grant date fair value of the options$-0- as there were no grants during the nine months ended September 30, 2019.that period.
| Assumptions | ||||
| Volatility – range | 107.6 | % | ||
| Risk-free rate | 2.23 | % | ||
| Expected term | 5.5 years | |||
| Exercise price | $ | 3.01 | ||
The Plans allow for the cashless exercise of stock options. This provision allows the option holder to surrender/cancel options with an intrinsic value equivalent to the purchase/exercise price of other options exercised. There were no shares surrendered pursuant to cashless exercises during the ninesix months ended SeptemberJune 30, 2020 and 2019.
At SeptemberJune 30, 2019,2020, the aggregate intrinsic value of options outstanding was approximately $-0-$187,800 and the aggregate intrinsic value of options exercisable was approximately $-0-.$187,800. No options were exercised in the ninesix months ended SeptemberJune 30, 2019.
As of SeptemberJune 30, 2019,2020, the unrecognized portion of stock compensation expense on all existing stock options was $290,811.
$-0-.
The following table summarizes the range of exercise prices and weighted average remaining contractual life for outstanding and exercisable options under the Company’s option plans as of SeptemberJune 30, 2019:2020:
| Outstanding options | Exercisable options | Outstanding options | Exercisable options | |||||||||||||||||||||||||||||
| Exercise price range | Exercise price range | Number of options | Weighted average remaining contractual life | Number of options | Weighted average remaining contractual life | Exercise price range | Number of options | Weighted average remaining contractual life | Number of options | Weighted average remaining contractual life | ||||||||||||||||||||||
| $ | 0.01 to $3.49 | 470,313 | 8.6 years | 335,313 | 8.2 years | 0.01 to $3.49 | 470,313 | 7.9 years | 470,313 | 7.9 years | ||||||||||||||||||||||
| $ | 3.50 to $4.99 | 66,875 | 4.5 years | 66,875 | 4.5 years | 3.50 to $4.99 | 64,000 | 3.8 years | 64,000 | 3.8 years | ||||||||||||||||||||||
| $ | 5.00 to $6.49 | — | — years | — | — years | 5.00 to $6.49 | — | — years | — | — years | ||||||||||||||||||||||
| $ | 6.50 to $7.99 | 8,437 | 2.1 years | 8,437 | 2.1 years | 6.50 to $7.99 | 7,250 | 1.3 years | 7,250 | 1.3 years | ||||||||||||||||||||||
| $ | 8.00 to $9.99 | 2,500 | 1.7 years | 2,500 | 1.7 years | 8.00 to $9.99 | 2,500 | 0.9 years | 2,500 | 0.9 years | ||||||||||||||||||||||
| $ | 10.00 to $19.99 | 39,750 | 1.3 years | 39,750 | 1.3 years | 10.00 to $19.99 | 39,250 | 0.5 years | 39,250 | 0.5 years | ||||||||||||||||||||||
| $ | 20.00 to $24.99 | 1,250 | 0.3 years | 1,250 | 0.3 years | |||||||||||||||||||||||||||
| 589,125 | 7.5 years | 454,125 | 6.9 years | 583,313 | 6.8 years | 583,313 | 6.8 years | |||||||||||||||||||||||||
Restricted stock grants. The Board of Directors has granted restricted stock awards under the Plans. Restricted stock awards are valued on the date of grant and have no purchase price for the recipient. Restricted stock awards typically vest over nine monthsone to four years corresponding to anniversaries of the grant date. Under the Plans, unvested shares of restricted stock awards may be forfeited upon the termination of service to or employment with the Company, depending upon the circumstances of termination. Except for restrictions placed on the transferability of restricted stock, holders of unvested restricted stock have full stockholder’s rights, including voting rights and the right to receive cash dividends.
A summary of all restricted stock activity under the equity compensation plans for the ninesix months ended SeptemberJune 30, 20192020 is as follows:
| Number of Restricted shares | Weighted average grant date fair value | Number of Restricted shares | Weighted average grant date fair value | |||||||||||||
| Non-vested balance, January 1, 2019 | 772,150 | $ | 3.40 | |||||||||||||
| Nonvested balance, January 1, 2020 | 514,875 | $ | 2.97 | |||||||||||||
| Granted | 522,110 | 2.91 | 665,500 | 1.05 | ||||||||||||
| Vested | (397,790 | ) | (3.84 | ) | (410,375 | ) | (2.14 | ) | ||||||||
| Forfeited | (5,370 | ) | (3.46 | ) | (35,250 | ) | (1.84 | ) | ||||||||
| Non-vested balance, September 30, 2019 | 891,100 | $ | 2.91 | |||||||||||||
| Nonvested balance, June 30, 2020 | 734,750 | $ | 1.75 | |||||||||||||
The Company estimated the fair market value of these restricted stock grants based on the closing market price on the date of grant. As of SeptemberJune 30, 2019,2020, there were $666,687$505,271 of total unrecognized compensation costs related to all remaining non-vested restricted stock grants, which will be amortized over the next 1518 months in accordance with thetheir respective vesting scale.
The non-vestednonvested balance of restricted stock vests as follows:
| Years ended | Number of shares | Number of shares | ||||||
| 2019 (October 1, 2019 to December 31, 2019) | 376,225 | |||||||
| 2020 | 264,750 | |||||||
| 2020 (April 1, 2020 through December 31, 2020) | 13,125 | |||||||
| 2021 | 250,125 | 480,250 | ||||||
| 2022 | 241,375 | |||||||
| 25 |
NOTE 13.11. COMMON STOCK PURCHASE WARRANTS
The Company has issued common stock purchase warrants in conjunction with various debt and equity issuances. The warrants are either immediately exercisable, or have a delayed initial exercise date, no more than ninesix months from their respective issue date and allow the holders to purchase up to 4,717,5733,393,364 shares of common stock at $2.60$1.40 to $16.50 per share as of SeptemberJune 30, 2019.2020. The warrants expire from July 15, 2020 through July 31, 2023January 17, 2025 and allow for cashless exercise.
| Warrants | Weighted average exercise price | |||||||
| Vested Balance, January 1, 2019 | 4,693,145 | $ | 5.40 | |||||
| Granted | 571,428 | 1.81 | ||||||
| Exercised | (529,000 | ) | (2.96 | ) | ||||
| Cancelled | (18,000 | ) | (3.50 | ) | ||||
| Vested Balance, September 30, 2019 | 4,717,573 | $ | 5.23 | |||||
The following table summarizes information about shares issuable under warrants outstanding during the six months ended June 30, 2020:
| Warrants | Weighted average exercise price | |||||||
| Vested Balance, January 1, 2020 | 4,824,573 | $ | 5.15 | |||||
| Granted | 1,273,374 | 1.31 | ||||||
| Exercised | (2,704,583 | ) | (1.95 | ) | ||||
| Cancelled | — | — | ||||||
| Vested Balance, June 30, 2020 | 3,393,364 | $ | 6.26 | |||||
The total intrinsic value of all outstanding warrants aggregated $-0-$295,836 as of SeptemberJune 30, 20192020 and the weighted average remaining term is 40.321.8 months.
During the six months ended June 30, 2020, warrants to purchase 2,686,582 common shares were exercised for cash proceeds of $5,203,122 and warrants to purchase 18,000 common shares were exercised on a cashless basis through the forfeiture of 10,715 common shares.
The following table summarizes the range of exercise prices and weighted average remaining contractual life for outstanding and exercisable warrants to purchase common shares as of SeptemberJune 30, 2019:2020:
| Outstanding and exercisable warrants | Outstanding and exercisable warrants | |||||||||||||||||
| Exercise price | Exercise price | Number of warrants | Weighted average remaining contractual life | Exercise price | Number of warrants | Weighted average remaining contractual life | ||||||||||||
| $ | 1.81 | 571,428 | 4.9 years | 2.60 | 465,712 | 3.1 years | ||||||||||||
| $ | 2.60 | 465,712 | 3.8 years | 3.00 | 316,800 | 2.8 years | ||||||||||||
| $ | 3.00 | 701,667 | 3.5 years | 3.36 | 166,667 | 1.7 years | ||||||||||||
| $ | 3.25 | 120,000 | 3.2 years | 3.36 | 566,666 | 2.7 years | ||||||||||||
| $ | 3.36 | 880,000 | 3.2 years | 3.65 | 167,000 | 2.0 years | ||||||||||||
| $ | 3.65 | 200,000 | 2.8 years | 3.75 | 25,753 | 2.1 years | ||||||||||||
| $ | 3.75 | 94,000 | 2.9 years | 5.00 | 800,000 | 1.5 years | ||||||||||||
| $ | 5.00 | 800,000 | 2.3 years | 13.43 | 879,766 | 0.6 years | ||||||||||||
| $ | 13.43 | 879,766 | 1.3 years | 16.50 | 5,000 | 0.1 years | ||||||||||||
| $ | 16.50 | 5,000 | 0.8 years | |||||||||||||||
| 4,717,573 | 3.0 years | 3,393,364 | 1.8 years | |||||||||||||||
NOTE 12. STOCKHOLDERS’ EQUITY (DEFICIT)
Underwritten Public Offerings
On March 3, 2020, the Company entered into an underwriting agreement with Aegis Capital Corp., as the representative of the underwriters and sole book-running manager, pursuant to which the Company agreed to sell to the underwriters in a firm commitment underwritten public offering (the “Offering”) an aggregate of 2,521,740 shares of the Company’s common stock at a public price of $1.15 per share. The Company also granted the underwriters a forty-five (45)-day option to purchase up to an additional 378,261 shares of common stock to cover over-allotments, if any. The Offering was registered and the common stock was issued pursuant to the Company’s effective shelf registration statement on Form S-3 (File No. 333-225227), which was initially filed with the SEC on May 25, 2018 and was declared effective on June 6, 2018.
The underwriting agreement contained customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters. The Underwriters received discounts and commissions of seven percent (7%) of the gross cash proceeds received by the Company from the sale of the common stock in the Offering. In addition, the Company agreed to pay the Underwriters (a) a non-accountable expense reimbursement of 1% of the gross proceeds received and (b) “road show” expenses, diligence fees and the fees and expenses of the Underwriters’ legal counsel not to exceed $50,000. The net proceeds to the Company from the Offering totaled approximately $2,502,136, after deducting underwriting discounts and commissions and estimated expenses payable by the Company.
On June 2, 2020, the Company entered into an underwriting agreement with Aegis Capital Corp., as the representative of the underwriters and sole book-running manager, pursuant to which the Company agreed to sell to the underwriters in a firm commitment underwritten public offering an aggregate of 3,090,909 shares of the Company’s common stock, at a public price of $1.65 per share (the “June 2nd Offering”). The Company also granted the underwriters a forty-five (45)-day option to purchase up to an additional 463,636 shares of common stock to cover over-allotments, if any (the “June 2nd Option Shares”). The June 2nd Offering was registered and the common stock was issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-225227), which was initially filed with the SEC on May 25, 2018 and was declared effective on June 6, 2018.
On June 8, 2020, the Underwriters fully exercised their over-allotment option to acquire the June 2nd Option Shares at $1.65 per share, and the offering of the June 2nd Option Shares closed on June 10, 2020. The exercise of such over-allotment option resulted in additional gross proceeds, before deducting underwriting discounts and commissions and other estimated offering expenses, of $765,000, which the Company intends to use for general corporate purposes, including for compliance with certain Nasdaq continued listing requirements and continued investments in the Company’s commercialization efforts.
The underwriting agreement contained customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters. The Underwriters received discounts and commissions of seven percent (7%) of the gross cash proceeds received by the Company from the sale of the common shares in the June 2nd Offering. In addition, the Company agreed to pay the Underwriters “road show” expenses, diligence fees and the fees and expenses of the Underwriters’ legal counsel not to exceed $30,000. The net proceeds to the Company from the June 2nd Offering totaled $5,350,413, including the exercise of the underwriter’s overallotment option and after deducting underwriting discounts and commissions and estimated expenses payable by the Company.
On June 8, 2020, the Company entered into an underwriting agreement with Aegis Capital Corp., as the representative of the underwriters and sole book-running manager, pursuant to which the Company agreed to sell to the underwriters in a firm commitment underwritten public offering an aggregate of 2,325,581 shares of common stock at a public price of $2.15 per share (the “June 8th Offering”). The Company also granted the underwriters a forty-five (45)-day option to purchase up to an additional 213,953 shares of common stock to cover over-allotments, if any (the “June 8th Option Shares”).The June 8th Offering was registered and the common stock was issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-225227), which was initially filed with the SEC on May 25, 2018 and was declared effective on June 6, 2018.
On June 10, 2020, the Underwriters fully exercised their over-allotment option to acquire the June 8th Option Shares at $2.15 per share, and the offering of the June 8th Option Shares closed on June 10, 2020. The exercise of such over-allotment option resulted in additional gross proceeds, before deducting underwriting discounts and commissions and other estimated Offering expenses, of $460,000, which the Company intends to use for general corporate purposes, including for compliance with certain Nasdaq continued listing requirements and continued investments in the Company’s commercialization efforts.
The underwriting agreement contained customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters. The Underwriters received discounts and commissions of seven percent (7%) of the gross cash proceeds received by the Company from the sale of the common shares in the June 8th Offering. In addition, the Company agreed to pay the Underwriters “road show” expenses, diligence fees and the fees and expenses of the Underwriters’ legal counsel not to exceed $30,000. The net proceeds to the Company from the June 8th Offering totaled $4,976,692, including the exercise of the underwriter’s overallotment option and after deducting underwriting discounts and commissions and estimated expenses payable by the Company.
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2020 Issuances of Restricted Common Stock.
On January 3, 2020, the board of directors approved the grant of 530,050 shares of restricted common stock to officers and employees of the Company. Such shares will generally vest one-half on January 2, 2021 and one half on January 2, 2022, provided that each grantee remains an officer or employee on such dates.
In April 17, 2020 the Compensation Committee of the Board of Directors of the Company determined that the cash portion of the annual base salaries of the Company’s President and Chief Executive Officer, and the Company’s Chief Financial Officer, Treasurer and Secretary, would be reduced to annual rates of $150,000 each for the balance of 2020 commencing May 1, 2020.
The Committee also decided that the reduction of the base annual salaries of Company’s President and Chief Executive Officer, and the Company’s Chief Financial Officer, Treasurer and Secretary, for 2020, which totaled $69,231 and $55,384, respectively, as of May 1, 2020 was paid through the issuance of shares of restricted stock under the 2018 Stock Option and Restricted Stock Plan with the Company paying the applicable federal and state taxes on such amounts. Accordingly, the Company issued the Company’s President and Chief Executive Officer, and the Company’s Chief Financial Officer, Treasurer and Secretary 75,250 shares and 60,200 shares, respectively, effective April 17, 2020 based on a closing price of $0.92 per share on such date.
NOTE 14.13. NET LOSS PER SHARE
The calculationscalculation of the weighted average number of shares outstanding and loss per share outstanding for the three and ninesix months ended SeptemberJune 30, 20192020 and 20182019 are as follows:
Three Months Ended September 30, | Nine Months Ended September 30, | Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||||||||||||||||
| 2019 | 2018 | 2019 | 2018 | 2020 | 2019 | 2020 | 2019 | |||||||||||||||||||||||||
| Numerator for basic and diluted income per share – Net loss | $ | (2,985,825 | ) | $ | (4,665,580 | ) | $ | (6,578,729 | ) | $ | (10,216,702 | ) | $ | (497,894 | ) | $ | (387,730 | ) | $ | (2,832,004 | ) | $ | (3,592,904 | ) | ||||||||
| Denominator for basic loss per share – weighted average shares outstanding | 11,637,289 | 7,725,877 | 11,296,999 | 7,295,098 | 18,976,724 | 11,305,248 | 16,430,214 | 11,124,222 | ||||||||||||||||||||||||
| Dilutive effect of shares issuable under stock options and warrants outstanding | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Denominator for diluted loss per share – adjusted weighted average shares outstanding | 11,637,289 | 7,725,877 | 11,296,999 | 7,295,098 | 18,976,724 | 11,305,248 | 16,430,214 | 11,124,222 | ||||||||||||||||||||||||
| Net loss per share: | ||||||||||||||||||||||||||||||||
| Basic | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.03 | ) | $ | (0.03 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||||||
| Diluted | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.03 | ) | $ | (0.03 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||||||
Basic loss per share is based upon the weighted average number of common shares outstanding during the period. For the three and ninesix months ended SeptemberJune 30, 2020 and 2019, all shares issuable upon conversion of convertible debt and 2018, allthe exercise of outstanding stock options to purchase common stockand warrants were antidilutive, and, therefore, not included in the computation of diluted net lossincome (loss) per share.
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Note 15 – Subsequent Events
NOTE 14. SUBSEQUENT EVENTS
Management evaluated all activitiesWarehouse Building Acquisition. On July 13, 2020, the Company entered into a Commercial and Industrial Real Estate Sale Contract (the “Contract”) whereby it will purchase new warehouse space which will serve as the company’s warehouse and distribution location for its new branded temperature screening device ThermoVU™ and its Shield™ line of disinfectant/cleanser products. The terms of the Contract include a total purchase price of $420,000 with the closing expected to occur on or before August 21, 2020. The Company throughpaid cash to close the issuancepurchase of the building on July 16, 2020.
Proceeds Investment Agreement Termination Agreement. - On July 20, 2020, the Company and BKI executed a Termination Agreement and Mutual Release (the “Termination Agreement”). Under the terms of the Termination Agreement the parties agreed to terminate the PIA and to release one another from any further liability under the PIA obligation. (See Note 4 — “Proceeds Investment Agreement Obligation”).
Under the terms of the Termination Agreement, upon payment of $1,250,000 by the Company to BKI both parties agreed to terminate the PIA and to release each other from any further liability thereunder. Such $1,250,000 payment was made on July 22, 2020. In addition to the $1,250,000 payment, the Company further agreed to pay BKI the following: (a) a contingent payment in the amount of $2,750,000 following the closing of an asset purchase, membership interest purchase, or similar transaction between the Company and a specified third-party (the “Purchase Transaction”) and (b) any and all future proceeds received from Watchguard and its successors and assigns by the Company for WatchGuard’s use of U.S. Patent Nos. 8,781,292 and 9,253,452. For clarity, the Company and BKI further agreed that the payment of the contingent payment would only be due and payable upon the closing of the specified Purchase Transaction and the relevant contingent payment portion of the Termination Agreement, and any obligations stemming therefrom, would automatically terminate if the specified Purchase Transaction is abandoned prior to its closing, including its failure to close within three years from the date of the Termination Agreement. The specified Purchase Transaction has not yet occurred and there is no binding agreement to complete such Purchase Transaction.
Shelf Registration Statement on Form S-3 On July 2, 2020 the SEC declared the Company’s unaudited condensed consolidated financial statementsshelf registration statement on Form S-3 (the “Shelf Registration Statement”) effective. The Shelf Registration Statement allows the Company to offer and concluded that no subsequent events have occurred that would require adjustmentssell, from time to time in one or disclosuremore offerings, any combination of our common stock, debt securities, debt securities convertible into the unaudited condensed consolidated financial statements.common stock or other securities in any combination thereof, rights to purchase shares of common stock or other securities in any combination thereof, warrants to purchase shares of common stock or other securities in any combination thereof or units consisting of common stock or other securities in any combination thereof having an aggregate initial offering price not exceeding $125,000,000.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operation.
This Reportquarterly report on Form 10-Q of Digital Ally, Inc. (the “Company”, “we”, “us”, or “our”) contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.1934, as amended (the “Exchange Act”). The words “believe,” “expect,” “anticipate,” “intend,” “estimate,” “may,” “should,” “could,” “will,” “plan,” “future,” “continue,” and other expressions that are predictions of or indicate future events and trends and that do not relate to historical matters identify forward-looking statements. These forward-looking statements are based largely on our expectations or forecasts of future events, can be affected by inaccurate assumptions, and are subject to various business risks and known and unknown uncertainties, a number of which are beyond our control. Therefore, actual results could differ materially from the forward-looking statements contained in this document, and readers are cautioned not to place undue reliance on such forward-looking statements.
We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. A wide variety of factors could cause or contribute to such differences and could adversely impact revenues, profitability, cash flows and capital needs. There can be no assurance that the forward-looking statements contained in this document will, in fact, transpire or prove to be accurate.
Factors that could cause or contribute to our actual results differing materially from those discussed herein or for our stock price to be adversely affected include, but are not limited to: (1) our losses in recent years, including during the ninesix months ended SeptemberJune 30, 2020 and the 2019 fiscal year; (2) economic and fiscal 2018; (2) macro-economicother risks for our business from the effects of the decrease in budgets forCOVID-19 pandemic, including the impacts on our law-enforcement community;and commercial customers, suppliers and employees and on our ability to raise capital as required; (3) our ability to increase revenues, increase our margins and return to consistent profitability in the current economic and competitive environment; (4) our operation in developing markets and uncertainty as to market acceptance of our technology and new products; (5) the availability of funding from federal, state and local governments to facilitate the budgets of law enforcement agencies, including the timing, amount and restrictions on such funding; (6) our ability to deliver our new product offerings as scheduled in 2019,2020, such as the EVO-HD, have themShield™ disinfectant/sanitizers products and ThermoVU™ temperature screening systems, whether such new products perform as planned or advertised and whether they will help increase our revenues; (7) whether we will be able to increase the sales, domestically and internationally, for our products in the future; (8) our ability to maintain or expand our share of the market for our products in the domestic and international markets in which we compete, including increasing our international revenues; (9) our ability to produce our products in a cost-effective manner; (10) competition from larger, more established companies with far greater economic and human resources; (11) our ability to attract and retain quality employees; (12) risks related to dealing with governmental entities as customers; (13) our expenditure of significant resources in anticipation of sales due to our lengthy sales cycle and the potential to receive no revenue in return; (14) characterization of our market by new products and rapid technological change; (15) our dependence on sales of our EVO-HD, DVM-800, FirstVU HD and DVM-250 products and cloud and service revenue;products; (16) potential that stockholders may lose all or part of their investment if we are unable to compete in our markets and return to profitability; (17) defects in our products that could impair our ability to sell our products or could result in litigation and other significant costs; (18) our dependence on key personnel; (19) our reliance on third-party distributors and sales representatives for part of our marketing capability; (20) our dependence on a few manufacturers and suppliers for components of our products and our dependence on domestic and foreign manufacturers for certain of our products; (21) our ability to protect technology through patents and to protect our proprietary technology and information as trade secrets and through other similar means; (22) our ability to generate more recurring cloud and service revenues; (23) risks related to our license arrangements; (24) our revenues and operating results may fluctuate unexpectedly from quarter to quarter; (25) sufficient voting power by coalitions of a few of our larger stockholders, including directors and officers, to make corporate governance decisions that could have significant effect on us and the other stockholders; (26) sale of substantial amounts of our common stock, par value $0.001 per share that may have a depressive effect on the market price of the outstanding shares of our common stock; (27) possible issuance of common stock subject to options and warrants that may dilute the interest of stockholders; (28) our nonpayment of dividends and lack of plans to pay dividends in the future; (29) future sale of a substantial number of shares of our common stock that could depress the trading price of our common stock, lower our value and make it more difficult for us to raise capital; (30) our additional securities available for issuance, which, if issued, could adversely affect the rights of the holders of our common stock; (31) the likely high volatility of our stock price is likely to be highly volatile due to a number of factors, including a relatively limited public float; (32) whether the litigation against Axon will achieve its intended objectives and result in monetary recoveries for us; (33) whether the USPTO rulings will curtail, eliminate or otherwise have an effect on the actions of Axon and other competitors respecting us, our products and customers; (34) whether the remaining two claims under the ‘556 Patent have applicability to us or our products; and (35) whether our patented VuLink technology is becomingwill become thede-facto “standard” for agencies engaged in deploying state-of-the-art body-worn and in-car camera systems and will increase our revenues; (36)(35) whether such technology will have a significant impact on our revenues in the long-term;long-term and (37)(36) indemnification of our officers and directors.
Current Trends and Recent Developments for the Company
Overview
We produce digital video imaging, storage products and disinfectant and related safety products for use in law enforcement, security and commercial applications. Our current products include in-car digital video/audio recorders contained in a rear-view mirror for use in law enforcement and commercial fleets; a system that provides its law enforcement customers with audio/video surveillance from multiple vantage points and hands-free automatic activation of body-worn cameras and in-car video systems; a miniature digital video system designed to be worn on an individual’s body; and cloud storage solutions. We have active research and development programs to adapt our technologies to other applications. We sell our products to law enforcement agencies, private security customers and organizations and consumer and commercial fleet operators through direct sales domestically and third-party distributors internationally.
We supply technology-based products utilizing our portable digital video and audio recording capabilities, for the law enforcement and security industries and for the commercial fleet and mass transit markets. We have the ability to integrate electronic, radio, computer, mechanical, and multi-media technologies to create unique solutions to our customers’ requests.address needs in a variety of other industries and markets, including mass transit, school bus, taxicab and the military. Our products include the DVM-800 and DVM-800 Lite, in-car digital video mirror systems for use by law enforcement; the FirstVU and the FirstVU HD which are body-worn cameras, our patented and revolutionary VuLink product, which integrates our body-worn cameras with our in-car systems by providing hands-free automatic activation forand which we supply to both law enforcement and commercial markets; the DVM-250 and DVM-250 Plus, a commercial line of digital video mirrors that serve as “event recorders” for the commercial fleet and mass transit markets; and FleetVU and VuLink, ourwhich are cloud-based evidence management systems. We introduced the EVO-HD product in late June 2019 and began full-scale deploymentsdeliveries in the third quarter 2019. It is designed and built on a new and highly advanced technology platform that willwe expect to become the platform for a new family of our in-car video solution products for the law enforcement and commercial markets. We believe that the launch of these new products will help to reinvigorate our in-car and body-worn systems revenues while diversifying and broadening the market for our product offerings as circumstances normalize in a post-COVID-19 economy, although we can offer no assurance in this regard. The Company has recently added two new lines of branded products: (1) the ThermoVu™ which is a line of self-contained temperature monitoring stations that provides alerts and controls facility access when an individual’s temperature exceeds a pre-set threshold and (2) our Shield™ disinfectants and cleansers which are for use against viruses and bacteria and began offering such products to its law enforcement and commercials customers beginning late in the second quarter 2020. We are ramping up our supply chain for both of these new product lines, which are manufactured by third-parties.
We experienced operating losses for all of our fiscal quarters during 20192020 and 20182019 except for the second quarter of 2019, which was aided byas a result of a patent litigation settlement. The following is a summary of our recent operating results on a quarterly basis:
September 30, 2019 | June 30, 2019 | March 31, 2019 | December 31, 2018 | September 30, 2018 | June 30, 2018 | March 31, 2018 | ||||||||||||||||||||||
| Total revenue | $ | 2,923,148 | $ | 2,546,983 | $ | 2,550,796 | $ | 2,378,287 | $ | 2,878,059 | $ | 3,563,550 | $ | 2,471,513 | ||||||||||||||
| Gross profit | 1,188,262 | 980,812 | 1,181,740 | 56,658 | 1,177,289 | 1,618,467 | 1,109,394 | |||||||||||||||||||||
| Gross profit margin percentage | 40.7 | % | 37.3 | % | 46.3 | % | 2.3 | % | 40.9 | % | 45.4 | % | 44.9 | % | ||||||||||||||
| Total selling, general and administrative expenses | 3,468,709 | (1,616,830 | ) | 4,267,898 | 5,292,374 | 3,087,005 | 3,055,776 | 3,082,710 | ||||||||||||||||||||
| Operating loss | (2,280,447 | ) | 2,567,642 | (3,086,158 | ) | (5,235,716 | ) | (1,909,716 | ) | (1,437,309 | ) | (1,973,316 | ) | |||||||||||||||
| Operating loss percentage | (78.0 | )% | 100.8 | % | (121.0 | )% | (220.1 | )% | (66.4 | )% | (40.3 | )% | (79.8 | )% | ||||||||||||||
| Net loss | $ | (2,985,825 | ) | $ | (387,730 | ) | $ | (3,205,174 | ) | $ | (5,327,849 | ) | $ | (4,665,580 | ) | $ | (2,962,890 | ) | $ | (2,588,232 | ) | |||||||
June 30, 2020 | March 31, 2020 | December 31, 2019 | September 30, 2019 | June 30, 2019 | ||||||||||||||||
| Total revenue | $ | 1,732,192 | $ | 2,425,745 | $ | 2,420,437 | $ | 2,923,148 | $ | 2,546,983 | ||||||||||
| Gross profit (loss) | 392,758 | 1,265,028 | (88,185 | ) | 1,188,262 | 950,812 | ||||||||||||||
| Gross profit margin % | 22.7 | % | 52.2 | % | (3.6 | )% | 40.7 | % | 37.3 | % | ||||||||||
| Total selling, general and administrative expenses | 2,535,912 | 3,192,396 | 3,145,633 | 3,468,709 | (1,616,830 | ) | ||||||||||||||
| Operating income (loss) | (2,143,154 | ) | (1,927,368 | ) | (3,233,819 | ) | (2,280,447 | ) | 2,567,642 | |||||||||||
| Operating income (loss) % | (123.7 | )% | (79.5 | )% | (133.6 | )% | (78.0 | )% | 100.8 | % | ||||||||||
| Net loss | $ | (497,894 | ) | $ | (2,334,110 | ) | $ | (3,426,984 | ) | $ | (2,985,825 | ) | $ | (387,730 | ) | |||||
Our business is subject to substantial fluctuations on a quarterly basis as reflected in the significant variations in revenues and operating results in the above table. These variations result from various factors, including but not limited to: (1) the timing of large individual orders; (2) the traction gained by newer products, such as the recently released EVO-HD;EVO-HD, the ThermoVU™ and the Shield™ line; (3) production, quality and other supply chain issues affecting our cost of goods sold; (4) unusual increases in operating expenses, such as the timing of trade shows and bonus compensation; (5) the timing of patent infringement litigation settlements, such as the $6.0 settlement we obtained from WatchGuard during the second quarter of 2019 and (5) ongoingthe impact of patent infringement and other litigation including all related obligations and related expenses respecting outstanding lawsuits. We reported an operating losssuch litigation and (6) most recently, the impact of $2,280,447COVID-19 on revenues of $2,923,148 for the three months ended September 30, 2019 compared to operating income of $2,567,642 on revenues of $2,546,983 for the three months ended June 30, 2019 primarily as a result of the $6.0 million settlement of the WatchGuard patent litigation. The income recognized in the second quarter 2019 ended a series of quarterly losses resulting from competitive pressures, supply chain problems, increases in inventory reserves aseconomy and our current product suite ages, product quality control issues, product warranty issues, infringement of our patents by direct competitors such as Axon that reduced our revenues, and litigation expenses relating to the patent infringement.business.
A number of factors and trends affected our recent performance, which include:
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Off-Balance Sheet Arrangements
We do not have any off-balance sheet debt, nor did we have any transactions, arrangements, obligations (including contingent obligations) or other relationships with any unconsolidated entities or other persons that may have material current or future effect on our financial conditions, changes in the financial conditions, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenue or expenses.
For the Three Months Ended SeptemberJune 30, 20192020 and 20182019
Results of Operations
Summarized immediately below and discussed in more detail in the subsequent sub-sections is an analysis of our operating results for the three months ended SeptemberJune 30, 20192020 and 2018,2019, represented as a percentage of total revenues for each respective year:
Three Months Ended September 30, | Three months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| Revenue | 100 | % | 100 | % | 100 | % | 100 | % | ||||||||
| Cost of revenue | 59 | % | 59 | % | 77 | % | 63 | % | ||||||||
| Gross profit | 41 | % | 41 | % | 23 | % | 37 | % | ||||||||
| Selling, general and administrative expenses: | ||||||||||||||||
| Research and development expense | 18 | % | 11 | % | 21 | % | 23 | % | ||||||||
| Selling, advertising and promotional expense | 30 | % | 25 | % | 28 | % | 48 | % | ||||||||
| Stock-based compensation expense | 14 | % | 23 | % | 22 | % | 23 | % | ||||||||
| General and administrative expense | 57 | % | 48 | % | 76 | % | 78 | % | ||||||||
| Patent litigation settlement | — | % | (236 | )% | ||||||||||||
| Total selling, general and administrative expenses | 119 | % | 107 | % | 147 | % | (64 | )% | ||||||||
| Operating loss | (78 | )% | (66 | )% | ||||||||||||
| Change in fair value of secured convertible debentures | — | % | (51 | )% | ||||||||||||
| Loss on the extinguishment of secured convertible debentures | — | % | (4 | )% | ||||||||||||
| Operating income (loss) | (124 | )% | 101 | % | ||||||||||||
| Change in fair value of proceeds investment agreement | (6 | )% | — | % | 149 | % | (116 | )% | ||||||||
| Change in fair value of secured convertible notes | (14 | )% | 3 | % | (51 | )% | — | % | ||||||||
| Secured convertible notes issuance expenses | (3 | )% | — | % | ||||||||||||
| Other income and interest expense, net | (1 | )% | (38 | )% | (3 | )% | — | % | ||||||||
| Loss before income tax benefit | (102 | )% | (162 | )% | (29 | )% | (15 | )% | ||||||||
| Income tax (provision) | — | % | — | % | — | % | — | % | ||||||||
| �� | ||||||||||||||||
| Net loss | (102 | )% | (162 | )% | (29 | )% | (15 | )% | ||||||||
| Net loss per share information: | ||||||||||||||||
| Basic | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.03 | ) | $ | (0.03 | ) | ||||
| Diluted | $ | (0.26 | ) | $ | (0.60 | ) | $ | (0.03 | ) | $ | (0.03 | ) | ||||
Revenues
Our current product offerings include the following:
| Product | Description | Retail Price | ||||
EVO-HD | An in-car digital audio/video system which records in 1080P high definition video and is designed for law enforcement and commercial fleet customers. This system includes two cameras and can use up to four external cameras for a total of four video streams. This system includes integrated, patented VuLink technology, internal GPS, and an internal Wi-Fi Module. The system includes the choice between a Wireless Microphone Kit or the option to use the FirstVu HD Body Camera as the wireless microphone. This system also includes a three-year Advanced Exchange Warranty. We offer a cloud storage solution to manage the recorded evidence and charge a monthly device license fee for our cloud storage. | $ | 4,795 | |||
| DVM-750 | An in-car digital audio/video system that is integrated into a rear view mirror primarily designed for law enforcement customers. We offer local storage as well as cloud storage solutions to manage the recorded evidence. We charge a monthly storage fee for our cloud storage option and a one-time fee for the local storage option. This product is being discontinued and phased out of our product line. | $ | 2,995 | |||
| DVM-100 | An in-car digital audio/video system that is integrated into a rear view mirror primarily designed for law enforcement customers. This system uses an integrated fixed focus camera. This product is being discontinued and phased out of our product line. | $ | 1,895 | |||
| DVM-400 | An in-car digital audio/video system that is integrated into a rear view mirror primarily designed for law enforcement customers. This system uses an external zoom camera. This product is being discontinued and phased out of our product line. | $ | 2,795 | |||
| DVM-250 Plus | An in-car digital audio/video system that is integrated into a rear view mirror primarily designed for commercial fleet customers. We offer a web-based, driver management and monitoring analytics package for a monthly service fee that is available for our DVM-250 customers. | $ | 1,295 | |||
| DVM-800 | An in-car digital audio/video system which records in 480P standard definition video that is integrated into a rear view mirror primarily designed for law enforcement customers. This system can use an internal fixed focus camera or two external cameras for a total of four video streams. This system also includes the Premium Package which has additional warranty. We offer local storage as well as cloud storage solutions to manage the recorded evidence. We charge a monthly storage fee for our cloud storage option and a one-time fee for the local storage option. | $ | 3,995 | |||
| DVM-800 Lite | An in-car digital audio/video system which records in 480P standard definition video that is integrated into a rear view mirror primarily designed for law enforcement customers. This system can use an internal fixed focus camera or two external cameras for a total of four video streams. We offer local storage as well as cloud storage solutions to manage the recorded evidence. We charge a monthly storage fee for our cloud storage option and a one-time fee for the local storage option. This system is replacing the DVM-100 and DVM-400 product offerings and allows the customer to configure the system to their needs. | Various based on configuration | ||||
| FirstVU HD | A body-worn digital audio/video camera system primarily designed for law enforcement customers. We also offer a cloud based evidence storage and management solution for our FirstVU HD customers for a monthly service fee. | $ | 595 | |||
| VuLink | An in-car device that enables an in-car digital audio/video system and a body worn digital audio/video camera system to automatically and simultaneously start recording. | $ | 495 | |||
We sell our products and services to law enforcement and commercial customers in the following manner:
| ● | Sales to domestic customers are made directly to the end customer (typically a law enforcement agency or a commercial customer) through our sales force, comprised of our employees. Revenue is recorded when the product is shipped to the end customer. |
| ● | Sales to international customers are made through independent distributors who purchase products from us at a wholesale price and sell to the end user (typically law enforcement agencies or a commercial customer) at a retail price. The distributor retains the margin as its compensation for its role in the transaction. The distributor generally maintains product inventory, customer receivables and all related risks and rewards of ownership. Revenue is recorded when the product is shipped to the distributor consistent with the terms of the distribution agreement. | |
| ● | Repair parts and services for domestic and international customers are generally handled by our inside customer service employees. Revenue is recognized upon shipment of the repair parts and acceptance of the service or materials by the end customer. |
We may discount our prices on specific orders based upon the size of the order, the specific customer and the competitive landscape. We believe that our systems are at least comparable to those of our principal competitors and are generally lower priced when considering comparable features and capabilities.
Revenues for third quartereach of the second quarters of 2020 and 2019 and 2018 were derived from the following sources:
| Three months ended September 30, | Three months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| DVM-800 | 34 | % | 38 | % | 21 | % | 35 | % | ||||||||
| Repair and service | 19 | % | 13 | % | 23 | % | 15 | % | ||||||||
| DVM-250 Plus | 14 | % | 9 | % | 6 | % | 9 | % | ||||||||
| FirstVu HD | 10 | % | 15 | % | 13 | % | 12 | % | ||||||||
| Cloud service revenue | 7 | % | 6 | % | 16 | % | 7 | % | ||||||||
EVO-HD | 4 | % | — | % | 9 | % | 3 | % | ||||||||
| VuLink | 1 | % | — | % | 1 | % | 1 | % | ||||||||
| DVM-750 | 1 | % | 6 | % | ||||||||||||
| Accessories and other revenues | 10 | % | 13 | % | 11 | % | 18 | % | ||||||||
| 100 | % | 100 | % | |||||||||||||
| 100 | % | 100 | % | |||||||||||||
The COVID-19 pandemic had a negative impact on our revenues in the second quarter 2020 and we expect it to adversely affect our revenues during the remainder of 2020.
Product revenues for the three months ended SeptemberJune 30, 2020 and 2019 were $1,053,581 and 2018 were $2,173,257 and $2,334,863,$1,945,724 respectively, a decrease of $161,606 (7%$892,143 (46%), due to the following factors:
| ● | In general, we have experienced pressure on our revenues as our in-car and body-worn systems are facing increased competition because our competitors have released new products with advanced features. Additionally, our law enforcement revenues declined over the prior period due to price-cutting | |
| ● |
| ● | Management has been focusing on migrating customers, in particular commercial customers, from a “hardware sale” to a service fee model. Therefore, we expect a reduction in commercial hardware sales (principally DVM-250’s and FirstVU’s) as we convert these customers to a service model under which we provide the hardware as part of a recurring monthly service fee. In that respect, we introduced a monthly subscription agreement plan for our body worn cameras and related equipment during the second quarter 2020 that allowed law enforcement agencies to pay a monthly service fee to obtain body worn cameras without incurring a significant upfront capital outlay. This program has gained some traction, resulting in decreased product revenues and increasing our service revenues. | |
| ● | Our international revenues decreased to | |
| ● | During the second quarter of 2020, the Company launched two product lines in direct response to the increased safety precautions that organizations and individuals are taking due to the COVID-19 pandemic. ThermoVu™ was launched as a non-contact temperature-screening instrument that measures temperature through the wrist and controls entry to facilities when temperature measurements exceed pre-determined parameters. ThermoVu™ has optional features such as facial recognition to improve facility security by restricting access based on temperature and/or facial recognition reasons. ThermoVu™ provides an instant pass/fail audible tone with its temperature display and controls access to facilities based on such results. We believe that it can be widely applied in schools, office buildings, subway stations, airports and other public venues. The Company also launched its Shield™ disinfectant/sanitizer product lines to fulfill demand by current customers and others for a disinfectant and sanitizer that is less harsh than | |
The Company began offering the Shield™ line of disinfecting products to its first responder customers including police, fire and |
Service and other revenues for the three months ended SeptemberJune 30, 2020 and 2019 were $678,611 and 2018 were $749,891 and $543,196,$601,259, respectively, an increase of $206,695 (38%$77,352 (13%), due to the following reasons:factors:
| ● | Cloud revenues were |
| ● | Revenues from extended warranty services were $334,705 and $343,119 for the three months ended | |
| ● | Installation service revenues were | |
| ● | Software revenue, non-warranty repair and other revenues were $13,122 and $56,475 for the three months ended June 30, 2020 and 2019, respectively, a decrease of $43,353 (77%). Software revenues were $10,996 for the three months ended June 30, 2020 compared to $20,011 for the three months ended June 30, 2019 and non-warranty repairs were $8,904 for the three months ended June 30, 2020 compared to $32,833 for the three months ended June 30, 2019. Situational security event fees were $10,800 during the three months ended June 30,2020 compared to $-0- during the three months ended June 30, 2019. |
Total revenues for the three months ended SeptemberJune 30, 2020 and 2019 were $1,732,192 and 2018 were $2,923,148 and $2,878,059,$2,546,983, respectively, an increasea decrease of $45,089 (2%$814,791 (32%), due to the reasons noted above.
Cost of Revenue
Cost of product revenue on units sold for the three months ended SeptemberJune 30, 2020 and 2019 was $1,165,528 and 2018 was $1,601,913 and $1,592,072,$1,468,828, respectively, a decrease of $303,300 (21%). The decrease in cost of goods sold for products is primarily due to the 46% decrease in product revenues offset by an increase in the cost of $9,841 (1%).goods sold for products as a percentage of product revenues to 111% for the three months ended June 30, 2020 compared to 75% for the three months ended June 30, 2019. During the second quarter of 2020 the Company moved to new and smaller warehouse facilities and during the move sorted through its entire inventory and disposed of all excess and obsolete inventory rather than moving it to the new location, which contributed to the increase in the cost of goods sold for products as a percentage of product revenues to 111% for the three months ended June 30, 2020. In addition, the move to a new facility coupled with the manufacturing slow down caused by the COVID-19 pandemic caused significant unfavorable overhead and labor variances for production in the second quarter of 2020, which management decided to expense as a period cost rather than apply to finished good and work in process inventory.
Cost of service and other revenues for the three months ended SeptemberJune 30, 2020 and 2019 was $173,906 and 2018 was $132,973 and $108,698,$127,343, respectively, an increase of $24,275 (22%$46,563 (37%). The increase in service and other cost of goods sold is primarily due to the 38%13% increase in service and other revenues coupled with an increase in the cost of service and other revenues sold for products as a percentage of service and other revenues to 26% for the three months ended SeptemberJune 30, 2020 compared to 21% for the three months ended June 30, 2019.
Total cost of sales as a percentage of revenues was 59%77% for both the three months ended SeptemberJune 30, 2019 and 2018.2020 compared to 63% for the three months ended June 30, 2019. We believe our gross margins will improve during the remainder of 20192020 if we can increase revenues (in particular service and other revenues) in light of the COVID-19 pandemic and continue to reduce product warranty issues.
We had $3,335,408$2,000,412 and $3,287,771$4,144,013 in reserves for obsolete and excess inventories at SeptemberJune 30, 20192020 and December 31, 2018,2019, respectively. Total raw materials and component parts were $4,220,724$2,575,710 and $4,969,786$4,481,611 at SeptemberJune 30, 20192020 and December 31, 2018,2019, respectively, a decrease of $749,062 (15%$1,905,901 (43%). During June 2020 the Company moved to a new and smaller warehouse facilities and during the move sorted through its entire inventory and disposed of all excess and obsolete inventory rather than moving it to the new location which contributed to the significant decrease in the cost. We scrapped older version inventory component parts that were mostly or fully reserved during the three months ended SeptemberJune 30, 20192020, which was the primary cause for the decrease.decrease in total raw materials and component parts. Finished goods balances were $5,161,430$4,146,308 and $4,965,594$4,906,956 at SeptemberJune 30, 20192020 and December 31, 2018,2019, respectively, an increasea decrease of $195,836 (4%$760,648 (16%). The increasedecrease in the inventory reserve is primarily due to the scrapping of older version legacy products that were mostly or fully reserved during the three months ended June 30, 2020 as a higherresult of moving our warehouse and office location. The remaining reserve for inventory obsolescence is generally provided for the level of excess component parts of the older versions of our PCBprinted circuit boards and the phase out of our DVM-750, DVM-500 Plus and LaserAlly legacy products. We believe that the reserves are appropriate given our inventory levels at SeptemberJune 30, 2019.2020.
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Gross Profit
Gross profit for the three months ended SeptemberJune 30, 2020 and 2019 was $392,758 and 2018 was $1,188,262 and $1,177,289,$950,812, respectively, an increasea decrease of $10,973 (1%$558,054 (59%). The increasedecrease is commensurate with the 2% increase32% decrease in total revenues and the cost of sales as agross margin percentage of revenues remained steady at 59%decline to 23% during the three months ended SeptemberJune 30, 2019 and 2018. We believe that gross margins will improve2020, from 37% during 2019 if we improve revenue levels primarily through the introduction and sale of products such as the EVO-HD, continue to reduce product warranty issues and shift our revenues to higher-margin cloud services.three months ended June 30, 2019. Our goal is to improve our margins to 60% over the longer termlonger-term based on the expected margins of our EVO-HD, DVM-800, VuLink, and FirstVU HD, ThermoVU™, Shield™ disinfectants and our cloud evidence storage and management offering, if they gain traction in the marketplace and we are ablesubject to increase our commercial market penetrationa normalizing economy in 2019.the wake of the COVID-19 pandemic. In addition, if revenues from these products increase, we will seek to further improve our margins from them through economies of scale and more efficiently utilizing fixed manufacturing overhead components. We plan to continue our initiative to more efficient management ofefficiently manage our supply chain through outsourcing production, quantity purchases and more effective purchasing practices.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $3,468,709$2,535,912 and $3,087,005$(1,616,830) for the three months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, an increase of $381,704 (12%$4,152,742 (257%). OverallThe significant increase was attributable to the patent litigation settlement of $6.0 million that we received in the second quarter of 2019. Exclusive of the patent litigation settlement, overall selling, general and administrative expenses as a percentage of sales increased to 119%would have decreased by 42% in thirdthe second quarter 20192020 compared to 107% in the same period in 2018.2019. The significant components of selling, general and administrative expenses are as follows:
| Three Months Ended September 30, | Three months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| Research and development expense | $ | 517,010 | $ | 323,981 | $ | 359,697 | $ | 582,905 | ||||||||
| Selling, advertising and promotional expense | 877,218 | 711,506 | 486,649 | 1,237,947 | ||||||||||||
| Stock-based compensation expense | 405,579 | 669,480 | 376,738 | 585,195 | ||||||||||||
| Professional fees and expense | 168,996 | 356,856 | 217,726 | 228,476 | ||||||||||||
| Executive, sales and administrative staff payroll | 735,637 | 426,291 | ||||||||||||||
| Executive, sales, and administrative staff payroll | 510,872 | 1,090,868 | ||||||||||||||
| Other | 764,269 | 598,891 | 584,230 | 657,779 | ||||||||||||
| Patent litigation proceeds | — | (6,000,000 | ) | |||||||||||||
| Total | $ | 3,468,709 | $ | 3,087,005 | $ | 2,535,912 | $ | (1,616,830 | ) | |||||||
Research and development expense.We continue to focus on bringing new products to market, including updates and improvements to current products. Our research and development expenses totaled $517,010$359,697 and $323,981$582,905 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $193,029 (60%$223,208 (38%). We employed 17Most of our engineers at September 30, 2019 compared to 12 engineers at September 30, 2018, most of whom are dedicated to research and development activities for new products and primarily the EVO-HD, which was launched in late second quarter 2019. Researchof 2019 and development expenses as a percentage of total revenues were 18% for the three months ended September 30, 2019 compared to 11% for the three months ended September 30, 2018.non-mirror based DVM-250 that can be located in multiple places in a vehicle. We expect our research and development activities will continue to trend higherdecrease in future quarters as we continuereduce our engineering headcount to expand our product offerings basedreflect lower activity on our new EVO-HD product platform. We consider our research and development capabilities and new product focus to be a competitive advantage and will continue to invest in this area on a prudent basis and consistent with our financial resources.
Selling, advertising and promotional expenses.Selling, advertising and promotional expense totaled $877,218$486,649 and $711,506$1,237,847 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $165,712 (23%$751,198 (61%). The increasesignificant decrease was primarily attributable to the 2% increaseour sponsorship of a NASCAR race in revenuesMay 2019 and other related sponsorship opportunities. Salesmenopportunities that did not recur in 2020. Salesman salaries and commissions represent the primary components of these costs and were $627,841$374,882 and $607,111$727,155 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $20,730 (3%$352,273 (48%). The effective commission rate was 21.6% for the three months ended June 30, 2020 compared to 28.5% for the three months ended June 30, 2019. We increasedreduced the number of salesmen in our law enforcement and commercial channels beginning in late 2018 and increased travel expenses in 2019 compared to 2018. The effective commission rate was 21.5% for the three months ended September 30, 2019 compared to 21.1% forfirst quarter of 2020, which had a full effect on the three months September 30, 2018.second quarter 2020.
Promotional and advertising expenses totaled $249,377$111,767 during the three months ended SeptemberJune 30, 20192020 compared to $104,395$510,792 during the three months ended SeptemberJune 30, 2018, an increase2019, a decrease of $144,982 (139%$399,025 (78%). The increasedecrease is primarily attributable to efforts to expand brand awarenessour sponsorship of the NASCAR race in May 2019, the suspension of the 2020 NASCAR season late in the first quarter 2020 and leverage our relationship with NASCAR for business opportunities.a reduction in attendance at trade shows as a result of the COVID-19 pandemic.
Stock-based compensation expense.Stock-basedStock based compensation expense totaled $405,579$376,738 and $669,480$585,195 for the three months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, a decrease of $263,901 (39%$208,457 (36%). The decrease is primarily due to the decreased amortization during the three months ended SeptemberJune 30, 20192020 related to the restricted stock granted at a lower market price per share during 20192020 and 20182019 to our officers, directors, and other employees. We relied more on stock-based compensation during 20192020 and 20182019 as we attempted to reducereduced cash expenses for liquidity reasons.
Professional fees and expense.expense. Professional fees and expenses totaled $168,996$217,726 and $356,856$228,476 for the three months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, a decrease of $187,860 (53%$10,750 (5%). The decrease in professional fees areis primarily attributable to legal fees and expenses related to the ongoing Axon lawsuit.lawsuit and the resolution of the WatchGuard and PGA lawsuits. We resolved the PGA lawsuit on April 17, 2019 and the WatchGuard lawsuit was settled on May13, 2019. On June 17, 2019, the U.S. District Court granted Axon’s Motion for Summary Judgment and accepted Axon’s position that it did not infringe on our U.S. Patent No. 9,253,452 and dismissed the lawsuit in its entirety. We appealed the U.S. District Court’s ruling and on April 22, 2020, a three-judge panel of the United States Court of Appeals for the Tenth Circuit denied our appeal and affirmed the U.S. District Court’s previous decision to grant Axon summary judgment. The decreaseCompany filed a motion requesting a rehearing in professional feesfront of the Court of Appeals which motion was also denied on June 9, 2020.
The Company has until November 7, 2020 to decide whether it will appeal the U.S. District Court’s and expenses is attributableCourt of Appeals’ decisions to the decrease in the activity related to such lawsuit after the judge’s rulingUnited States Supreme Court. Our spending on legal fees on the Summary Judgment motion and our filingAxon case has slowed during 2020 as we waited for the appeal to be heard. The Company’s decision on whether it will appeal the decisions to the United States Supreme Court will impact the trend of legal expenses for the appeal.balance of 2020.
Executive, sales and administrative staff payroll.Executive, sales and administrative staff payroll expenses totaled $735,637$510,872 and $426,291$1,090,868 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $309,346 (73%$579,996 (53%). The primary reason for the increasedecrease in executive, sales and administrative staff payroll was an increasea reduction in totalour technical support staffing in response to the COVID-19 pandemic and the Company expects such reductions to continue to reduce related staff from 83 at September 30, 2018 to 114 at September 30, 2019.expenses during the balance of 2020. The COVID-19 pandemic has significantly impacted the Company’s new event security business channel in the second quarter of 2020 as many sporting venues were closed including those served by these service technicians.
Other. Other selling, general and administrative expenses totaled $764,269$584,230 and $598,891$657,779 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $165,378 (28%$73,549 (11%). The increasedecrease in other expenses in third quarter 2019during the three months ended June 30, 2020 compared to third quarter 2018the same period in 2019 is primarily attributable to higherlower contract employee expenses and travel costs. We have added several contract employeescosts resulting from the COVID-19 pandemic.
Patent litigation settlement. The income attributable to our technical support teams during 2019.patent litigation settlement was $-0- and $6,000,000 for the three months ended June 30, 2020 and 2019, respectively. On May 13, 2019 we reached a resolution of the pending patent infringement litigation with WatchGuard and executed a settlement agreement that resulted in the dismissal of this case. As part of such agreement, we received a one-time $6,000,000 payment and granted WatchGuard a perpetual covenant to not sue WatchGuard if its products incorporate agreed-upon modified recording functionality. Additionally, we granted WatchGuard a license to the ‘292 Patent and ‘452 Patent through December 31, 2023. As part of the settlement, we and WatchGuard agreed that WatchGuard was making no admission that it had infringed any of our patents. See Note 9 — “Commitments and Contingencies” to the Company’s condensed consolidated financial statements, included in Part I, Item 1 of this quarterly report on Form 10-Q (the “June 30, 2020 Financial Statements”), for the details respecting the settlement.
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Operating Loss
For the reasons stated above, our operating loss was $2,280,447$2,143,154 and $1,909,716our operating income was $2,567,642 for the three months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, a deterioration of $370,731 (19%$4,710,796 (183%). Operating loss as a percentage of revenues increased to 78% in 2019 from 66% in 2018.
Interest Income
Interest income increased to $6,667$15,609 for the three months ended SeptemberJune 30, 20192020 from $2,206$5,628 in 2018,2019, which reflected our higher cash and cash equivalent levels in thirdthe second quarter 2019of 2020 compared to thirdthe second quarter 2018.of 2019. The Company raised significant amounts of cash through the closing of two underwritten public offerings and the exercise of outstanding common stock purchase warrants during June 2020, which will generate interest income in future quarters.
Interest Expense
We incurred interest expense of $37,037$25,636 and $1,083,317$-0- during the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively. We
The Company issued an aggregate of $2.778$1.667 million principal amount of secured convertible notes on August 5, 2019 bearingApril 17, 2020 which bore interest at 8% per annum on the outstanding principal balance. During the three months ended June 30, 2020, the holders of the secured convertible notes exercised their right to convert principal balances aggregating $1.666 million into equity. In Mayaddition, the Company exercised its right to prepay in cash the remaining outstanding principal balance aggregating $1,000. Such secured convertible notes are no longer outstanding as of June 30, 2020 as a result of these conversions and April 2018, weprepayments.
The Company issued an unsecured promissory note in an aggregate of $6.875 million principal amount of Debentures bearing$300,000 payable on December 23, 2019 which bore interest at the rate of 8% per annum on the outstanding principal balance. We paid the 2018 Debenturesbalance which has been repaid in full on August 21, 2018, but were required to payas of June 30, 2020. In addition, during 2020 we issued an unsecured note payable with a related party in the remaining 12 monthsprincipal amount of guaranteed$319,000 which bore interest on the Debentures,at 6% per annum, which included a 10% premium, because they were not retired before August 1, 2018.has been repaid in full as of June 30, 2020.
Change in Warrant Derivative Liabilities
Detachable warrants exercisable to purchaseOn April 4, 2020, the Company entered into a totalpromissory note providing for a PPP Loan of 398,916 common shares, as adjusted, were issued in conjunction with $2.0 million$1,418,900. The PPP Loan has a two-year term and $4.0 million Secured Convertible Notes during Marchbears interest at a rate of 1.0% per annum. Monthly principal and August 2014. The warrants were required to be treated as derivative liabilities because of their anti-dilution and down-round provisions. Accordingly, we estimated the fair value of such warrants as of their respective date of issuance and recorded a corresponding derivative liability in the balance sheet. Upon exercise of the warrants we recognized a gain/loss based on the closing market price of the underlying common stock oninterest payments are deferred for six months after the date of exercise. In addition,disbursement and total $79,850.57 per month thereafter. On May 12, 2020 the warrant derivative liability was adjusted toCompany received $150,000 in additional loan funding under the estimated fair value of any unexercised warrants as of December 31, 2017 and September 30, 2018.
The holderEIDL program administered by the SBA. Under the terms of the warrants exercised its option to purchase common stock for all remainingEIDL promissory note, interest accrues on the outstanding warrants during the three months ended September 30, 2018principal at the reset exercise pricerate of $0.523.75% per share.annum. The net change in fair valueterm of the warrants toEIDL promissory note is thirty years and monthly principal and interest payments are deferred for twelve months after the closing market price on their respective date of exercise resulted in a net charge to change in warrant derivatives for the three months ended September 30, 2018 of $9,799.
There remained no warrants classified as derivative liabilities outstanding at December 31, 2018 therefore the respective warrant derivative liability balance was $0 at September 30, 2019disbursement and December 31, 2018 and no change in fair value was recorded for the three months ended September 30, 2019.total $731.00 per month thereafter.
Secured Convertible Notes Issuance Expenses
We elected to account for and record our secured convertible notes$1.667 million principal amount of the 2020 Convertible Notes issued in August 2019April 2020 on a fair value basis. Accordingly, we were required to expense the related issuance costs to other expense in the condensed consolidated statements of operations. Such costs totaled $89,148$34,906 for the three months ended SeptemberJune 30, 2019.2020. The issuance costs primarily included related legal and accounting fees. No similar debt issuances occurred during the three months ended SeptemberJune 30, 2018.2019.
Loss on Extinguishment of Secured Convertible Debentures
We closed the Private Placement of $6.875 million of 2018 Debentures and warrants exercisable to purchase 916,667 shares of common stock on April 3, 2018. The Private Placement resulted in gross proceeds of $6.25 million before placement agent fees and other expenses associated with the transaction. We used a portion of the proceeds to repay in full the 2016 Debentures, which matured on March 30, 2018, and approximately $758,500 principal amount of the June Note and Secured Note that matured in March 2018. The balance of the proceeds was used for working capital purposes. In conjunction with the transaction we recorded a loss on extinguishment of the 2016 Debentures totaling $100,000 for the three months ended September 30, 2018. There was no similar extinguishment of debentures in 2019.
Change in Fair Value of Proceeds Investment Agreement
We elected to account for the PIA that we entered into with BKI in July of 2018 on its fair value basis. Therefore, we determined the fair value of the 2018 PIA as of September 30, 2019, and June 30, 20192020, and March 31, 2020 to be $6,417,000$3,615,000 and $6,240,000,$6,193,000, respectively. During the nine months ended September 30, 2019, the Company settled its patent infringement litigation with WatchGuard whereby it received a lump sum payment of $6.0 million as further described in Note 11. In accordance with the terms of the PIA, the Company remitted the $6.0 million as a principal payment toward its minimum return payment obligations under the PIA. The change in fair value from March 31, 2020 to June 30, 2020 was $2,578,000, which was recognized as a gain in the Condensed Consolidated Statement of Operations for the three months ended June 30, 2020. The change in fair value from March 31, 2019 to June 30, 2019 and September 30, 2019 was $177,000,$(2,961,000), which was recognized as a loss in the Condensed Consolidated Statement of Operations at Septemberfor the three months ended June 30, 2019.
In July 2018 we determined the fair value of the 2018 PIA, which yielded an estimated fair value of $9,067,513 as of its origination date. We also determined the estimated fair value of $9,166,000 for the PIA as of September 30,2018. The change in fair value from origination date until September 30, 2018 was $98,487, which was recognized as a loss in the Condensed Consolidated Statement of Operations.
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Change in Fair Value of Secured Convertible Notes
We elected to account for the secured convertible notes that were issued in August of 2019 on aApril 17, 2020 on their fair value basis. Therefore, we determined the fair value of the secured convertible notes as of their issuance date of April 17, 2020 and as of September 30, 2019 to be $1,845,512 and $1,606,305, respectively. During the three months ended September 30, 2019, the holders converted an aggregate of $648,067 of secured convertible note principal.through June 12, 2020, when they were paid in full. The change in fair value from thetheir issuance date of August 5, 2019 and September 30, 2019April 17, 2020 to their pay-off date was $408,860,$887,807, which was recognized as a charge in the Condensed Consolidated Statement of Operations at September 30, 2019.
Change in Fair Value of Secured Convertible Debentures
We elected to account for the $6.875 million principal amount of the 2018 Debentures issued in April and May 2018 on their fair value basis. Therefore, we determined the fair value of the 2018 Debentures was an estimated fair value of $4,565,749 including their embedded derivatives as of their origination date. We also determined the estimated fair value of $5,354,803 for the 2018 Debentures including their embedded derivatives as of June 30, 2018. We paid the 2018 Debentures in full on August 21, 2018 and the change in fair value from June 30, 2018 until August 21, 2018 was $1,466,467, which was recognized as a loss in the Condensed Consolidated Statement of Operations. We paid these Debentures on August 21, 2018 so there was no similar fair value change in the three months ended SeptemberJune 30, 2019.2020.
Loss before Income Tax Benefit
As a result of the above, we reported a loss before income tax benefit of $2,985,825$497,894 and $4,665,580$387,730 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an improvementa deterioration of $1,679,755 (36%$110,164 (28%).
Income Tax Benefit
We did not record an income tax related to our losses for the three months ended SeptemberJune 30, 20192020 due to our overall net operating loss carryforwards available. We have further determined to continue providing a full valuation reserve on our net deferred tax assets as of SeptemberJune 30, 2019.
2020. We had approximately $61,600,000$66,925,000 of net operating loss carryforwards and $1,795,000 of research and development tax credit carryforwards as ofdetermined on December 31, 20182019 available to offset future net taxable income.
Net Loss
As a result of the above, we reported net losses of $2,985,825$497,894 and $4,665,580$387,730 for the three months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an improvementa deterioration of $1,679,755 (36%$110,164 (28%).
Basic and Diluted Loss per Share
The basic and diluted loss per share was ($0.26)0.03) and ($0.60)0.03) for the three months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, for the reasons previously noted. All outstanding stock options, warrants and convertible securities were considered antidilutive and therefore excluded from the calculation of diluted loss per share for the three months ended SeptemberJune 30, 20192020 and 20182019 because of the net loss reported for each of such period.
For the Nine Months Ended SeptemberSix months ended June 30, 20192020 and 20182019
Results of Operations
Summarized immediately below and discussed in more detail in the subsequent subsectionssub-sections is an analysis of our operating results for the ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, represented as a percentage of total revenues for each respective year:
Nine Months Ended | Six months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| Revenue | 100 | % | 100 | % | 100 | % | 100 | % | ||||||||
| Cost of revenue | 59 | % | 56 | % | 60 | % | 58 | % | ||||||||
| Gross profit | 41 | % | 44 | % | 40 | % | 42 | % | ||||||||
| Selling, general and administrative expenses: | ||||||||||||||||
| Research and development expense | 20 | % | 12 | % | 20 | % | 21 | % | ||||||||
| Selling, advertising and promotional expense | 36 | % | 24 | % | 28 | % | 39 | % | ||||||||
| Stock-based compensation expense | 21 | % | 20 | % | 17 | % | 26 | % | ||||||||
| General and administrative expense | 74 | % | 48 | % | 73 | % | 84 | % | ||||||||
| Patent litigation settlement | (75 | )% | — | % | — | % | (118 | )% | ||||||||
| Total selling, general and administrative expenses | 76 | % | 104 | % | 138 | % | 52 | % | ||||||||
| Operating loss | (35 | )% | (60 | )% | ||||||||||||
| Operating income (loss) | (98 | )% | (10 | )% | ||||||||||||
| Change in fair value of proceeds investment agreement | 69 | % | (60 | )% | ||||||||||||
| Change in fair value of secured convertible notes | (5 | )% | (26 | )% | (31 | )% | — | % | ||||||||
| Change in fair value proceeds investment agreement | (41 | )% | (1 | )% | ||||||||||||
| Loss on the extinguishment of secured convertible debentures | — | % | (7 | )% | ||||||||||||
| Change in warrant derivative liabilities | — | % | (4 | )% | ||||||||||||
| Secured convertible debentures issuance expense | (1 | )% | (2 | )% | ||||||||||||
| Other income and interest expense, net | — | % | (15 | )% | (8 | )% | — | % | ||||||||
| Loss before income tax benefit | (82 | )% | (115 | )% | (68 | )% | (70 | )% | ||||||||
| Income tax benefit | — | % | — | % | ||||||||||||
| Income tax (provision) | — | % | — | % | ||||||||||||
| Net loss | (82 | )% | (115 | )% | (68 | )% | (70 | )% | ||||||||
| Net loss per share information: | ||||||||||||||||
| Basic | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||
| Diluted | $ | (0.58 | ) | $ | (1.40 | ) | $ | (0.17 | ) | $ | (0.32 | ) | ||||
Revenues
We sell our products and services to law enforcement and commercial customers as noted earlier in this quarterly report on Form 10-Q.
We may discount our prices on specific orders based upon the size of the order, the specific customer and the competitive landscape.
Revenues for each of the ninesix months ended 2019June 30, 2020 and 2018, respectively,2019 were derived from the following sources:
| Nine months ended September 30, | Six months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| DVM-800 | 37 | % | 44 | % | 29 | % | 39 | % | ||||||||
| Repair and service | 18 | % | 12 | % | 19 | % | 14 | % | ||||||||
| FirstVU HD | 13 | % | 12 | % | ||||||||||||
| DVM-250 Plus | 11 | % | 7 | % | 5 | % | 8 | % | ||||||||
| FirstVu HD | 14 | % | 15 | % | ||||||||||||
| Cloud service revenue | 7 | % | 6 | % | 13 | % | 7 | % | ||||||||
| EVO-HD | 2 | % | — | % | 8 | % | 1 | % | ||||||||
| VuLink | 1 | % | 2 | % | 2 | % | 2 | % | ||||||||
| DVM-750 | 1 | % | 4 | % | ||||||||||||
| DVM-100 & DVM-400 | — | % | 1 | % | ||||||||||||
| Accessories and other revenues | 10 | % | 12 | % | 10 | % | 14 | % | ||||||||
| 100 | % | 100 | % | |||||||||||||
| 100 | % | 100 | % | |||||||||||||
The COVID-19 pandemic had a negative impact on our revenues during the six months ended June 30, 2020 and we expect it to adversely affect our revenues during the remainder of 2020.
Product revenues for the ninesix months ended SeptemberJune 30, 2020 and 2019 were $2,820,116 and 2018 were $6,039,445 and $7,319,676,$3,866,188 respectively, a decrease of $1,280,231 (17%$1,046,072 (27%), due to the following factors:
| ● | In general, we have experienced pressure on our revenues as our in-car and body-worn systems are facing increased competition because our competitors have released new products with advanced features. Additionally, our law enforcement revenues declined over the prior period due to price-cutting |
| ● | ||
| ● | In addition, the COVID-19 pandemic delayed the shipment of orders late in the first quarter of 2020 as police forces and governments dealt with its impact. Specifically, we were unable to ship the initial purchase orders under a substantial contract awarded by a foreign country for the expected deployment of body cameras to its entire national police force. The contract was expected to include up to 5,000 body cameras with our web-based software infrastructure service over a three-year period. The contract was suspended pending the government’s decision to freeze the planned deployment until such time as the pandemic is contained within its population. The initial purchase order was expected to ship during the first quarter 2020 and we believed that it would have made a substantial impact on our product revenues for such quarter. At this point, we are unable to forecast if and when this major project will be restarted or how it may be modified as a result of the pandemic. Upon completion, the original contract would have been the largest body camera deployment in our history and the largest contract for recurring service revenues for our web-based software related to the Company’s body cameras. | |
| ● | Management has been focusing on migrating customers, in particular commercial customers from a “hardware sale” to a service fee model. Therefore, we expect a reduction in commercial hardware sales (principally DVM-250’s and FirstVU’s) as we convert these customers to a service model under which we provide the hardware as part of a recurring monthly service fee. In that respect, we introduced a monthly subscription agreement plan for our body worn cameras and related equipment during the second quarter 2020 which allowed law enforcement agencies to pay a monthly service fee to obtain body worn cameras without incurring a significant upfront capital outlay. This program has gained some traction which is resulting in decreased product revenues and increasing our service revenues. | |
| ● | Our international revenues decreased to |
| ● | During the second quarter 2020, the Company launched ThermoVuä and |
Service and other revenues for the ninesix months ended SeptemberJune 30, 2020 and 2019 were $1,337,820 and 2018 were $1,981,482 and $1,593,446,$1,231,591, respectively, an increase of $388,036 (24%$106,229 (9%), due to the following factors:
| ● | Cloud revenues were | |
| ● | Revenues from extended warranty services were $668,073 and $670,689 for the six months ended June 30, 2020 and 2019, respectively, a decrease of $2,616 (0%). We have a number of customers that have purchased extended warranty packages, primarily in our DVM-800 premium service program. | |
| ● | Installation service revenues were | |
| ● | Software revenue, non-warranty repair and other revenues were $75,182 and $128,738 for the six months ended June 30, 2020 and 2019, respectively, a decrease of $53,556 (42%). Software revenues were $28,851 during the six months ended June 30, 2020 compared to $58,975 in the 2019 period and non-warranty repairs were $27,489 during the six months ended June 30, 2020 compared to $63,134 in the 2019 period. Situational security event fees were $10,800 during the six months ended June 30, 2020 compared to $-0- in the 2019 period. |
Total revenues for the ninesix months ended SeptemberJune 30, 2020 and 2019 were $4,157,936 and 2018 were $8,020,927 and $8,913,122,$5,097,779, respectively, a decrease of $892,195 (10%$939,843 (18%), due to the reasons noted above.
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Cost of Revenue
Cost of product revenue on units sold for the ninesix months ended SeptemberJune 30, 2020 and 2019 was $2,154,774 and 2018 was $4,333,812 and $4,672,432,$2,731,899, respectively, a decrease of $338,620 (7%$577,125 (21%). The decrease in cost of goods sold for products is commensurate withprimarily due to the 17%27% decrease in product revenues offset bycoupled with an increase in the cost of goods sold attributable to product cost of salesfor products as a percentage of product revenues increasing to 72%76% for the six months ended June 30, 2020 compared to 71% for the six months ended June 30, 2019. During June 2020 the Company moved to new and smaller warehouse facilities and during the move sorted through its entire inventory and disposed of all excess and obsolete inventory rather than moving it to the new location, which contributed to the increase in 2019 from 64%the cost of goods sold for products as a percentage of product revenues to 76% for the six months ended June 30, 2020. In addition, the move to a new facility coupled with the manufacturing slow down caused by the COVID-19 pandemic caused significant unfavorable overhead and labor variances for production in 2018.the first half of 2020, which management decided to expense as a period cost rather than apply to finished good and work in process inventory.
Cost of service and other revenues for the ninesix months ended SeptemberJune 30, 2020 and 2019 was $345,374 and 2018 was $366,301 and $335,540,$233,328, respectively, an increase of $30,761 (9%$112,046 (48%). The increase in service and other cost of goods sold is primarily due to the 24%9% increase in service and other revenues coupled with an increase in the cost of service and other revenues sold for products as a percentage of service and other revenues to 26% for the ninesix months ended SeptemberJune 30, 20192020 compared to 2018.19% for the six months ended June 30, 2019.
Total cost of sales as a percentage of revenues increased to 59% duringwas 60% for the ninesix months ended SeptemberJune 30, 20192020 compared to 56%58% for the ninesix months ended SeptemberJune 30, 2018.2019. We believe our gross margins will improve during the remainder of 20192020 if we can increase revenues (in particular service and other revenues) and continue to reduce product warranty issues.
We had $2,000,412 and $4,144,013 in reserves for obsolete and excess inventories at June 30, 2020 and December 31, 2019, respectively. Total raw materials and component parts were $2,575,710 and $4,481,611 at June 30, 2020 and December 31, 2019, respectively, a decrease of $1,905,901 (43%). During the six months ended June 30, 2020 the Company moved to a new and smaller warehouse facilities and during the move sorted through its entire inventory and disposed of all excess and obsolete inventory rather than moving it to the new location which contributed to the significant decrease in the cost. We scrapped older version inventory component parts that were mostly or fully reserved during the six months ended June 30, 2020, which was the primary cause for the decrease in total raw materials and component parts. Finished goods balances were $4,146,308 and $4,906,956 at June 30, 2020 and December 31, 2019, respectively, a decrease of $760,648 (16%). The decrease in the inventory reserve is primarily due to the scrapping of older version legacy products that were mostly or fully reserved during the six months ended June 30, 2020, as a result of moving our warehouse and office location. The remaining reserve for inventory obsolescence is generally provided for the level of component parts of the older versions of our PCB boards and the phase out of our DVM-750, DVM-500 Plus and LaserAlly legacy products. We believe the reserves are appropriate given our inventory levels at June 30, 2020.
Gross Profit
Gross profit for the ninesix months ended SeptemberJune 30, 2020 and 2019 was $1,657,788 and 2018 was $3,320,814 and $3,905,150,$2,132,552, respectively, a decrease of $584,336 (15%$474,764 (22%). The decrease is primarily attributable tocommensurate with the 10%18% decrease in total revenues and the cost of sales as agross margin percentage of revenues increasingdecrease to 59%40% during the ninesix months ended SeptemberJune 30, 20192020, from 56% for42% during the ninesix months ended SeptemberJune 30, 2018. We believe that gross margins will improve during 2019 if we improve revenue levels primarily through the introduction of products such as the EVO-HD, continue to reduce product warranty issues and shift our revenues to higher-margin cloud services.2019. Our goal is to improve our margins to 60% over the longer termlonger-term based on the expected margins of our EVO-HD, DVM-800, VuLink and FirstVU HD ThermoVuä products, Shieldä disinfectant/sanitizer products and our cloud evidence storage and management offering, if they gain traction in the marketplace and we are ablesubject to increase our commercial market penetrationa normalizing economy in 2019.the wake of the COVID-19 pandemic. In addition, if revenues from these products increase, we will seek to further improve our margins from them through economies of scale and more efficiently utilizing fixed manufacturing overhead components. We plan to continue our initiative to more efficient managementefficiently manage of our supply chain through outsourcing production, quantity purchases and more effective purchasing practices.
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Selling, General and Administrative Expenses
Selling, general and administrative expenses were $6,119,777$5,728,307 and $9,225,491$2,651,068 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, a decreasean increase of $3,105,714 (34%$3,077,239 (116%). The significant decreaseincrease was fueled byattributable to the patent litigation settlement of $6.0 million that we received in second quarter 2019. Exclusive of the patent litigation settlement, overall selling, general and administrative expenses as a percentagewould have decreased by $922,761 (11%) in the first half of sales increased to 151% for the nine months ended September 30, 20192020 compared to 104% in the same period in 2018.2019. The significant components of selling, general and administrative expenses are as follows:
| Nine Months Ended September 30, | Six months ended June 30, | |||||||||||||||
| 2019 | 2018 | 2020 | 2019 | |||||||||||||
| Research and development expense | $ | 1,562,086 | $ | 1,097,861 | $ | 845,445 | $ | 1,045,076 | ||||||||
| Selling, advertising and promotional expense | 2,871,154 | 2,097,919 | 1,169,030 | 1,993,936 | ||||||||||||
| Stock-based compensation expense | 1,715,972 | 1,757,227 | 688,415 | 1,310,393 | ||||||||||||
| Professional fees and expense | 1,338,448 | 1,167,761 | 557,318 | 1,169,452 | ||||||||||||
| Executive, sales and administrative staff payroll | 2,440,926 | 1,380,209 | ||||||||||||||
| Executive, sales, and administrative staff payroll | 1,231,650 | 1,705,289 | ||||||||||||||
| Other | 2,191,191 | 1,724,514 | 1,236,449 | 1,426,922 | ||||||||||||
| Patent litigation settlement | (6,000,000 | ) | — | |||||||||||||
| Patent litigation proceeds | — | (6,000,000 | ) | |||||||||||||
| Total | $ | 6,119,777 | $ | 9,225,491 | $ | 5,728,307 | $ | 2,651,068 | ||||||||
Research and development expense.We continue to focus on bringing new products to market, including updates and improvements to current products; however, we are now relying more on contracted engineering services on an “as-needed” basis.products. Our research and development expenses totaled $1,562,086$845,445 and $1,097,861$1,045,076 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $464,225 (42%$199,631 (19%). We employed 17Most of our engineers at September 30, 2019 compared to 12 engineers at September 30, 2018, most of whom are dedicated to research and development activities for new products and primarily the EVO-HD, which was launched late in latethe second quarter 2019. Researchof 2019 and development expenses as a percentage of total revenues were 20% for the nine months ended September 30, 2019 compared to 12% for the nine months ended September 30, 2018.non-mirror based DVM-250 that can be located in multiple places in a vehicle. We expect our research and development activities will continue to trend higherdecrease in future quarters as we continuereduce our engineering headcount to expand our product offerings basedreflect lower activity on our new EVO-HD product platform. We consider our research and development capabilities and new product focus to be a competitive advantage and will continue to invest in this area on a prudent basis and consistent with our financial resources.
Selling, advertising and promotional expenses.Selling, advertising and promotional expense totaled $2,871,154$1,169,030 and $2,097,919$1,993,936 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $773,235 (37%$824,906 (41%). Salesman salaries and commissions represent the primary components of these costs and were $1,986,970$952,832 and $1,359,129 for the ninesix months ended SeptemberJune 30, 2020 and 2019, respectively, a decrease of $406,297 (30%). The effective commission rate was 22.9% for the six months ended June 30, 2020 compared to $1,802,27826.7% for the ninesix months ended SeptemberJune 30, 2018, an increase of $184,692 (10%).2019. We increasedreduced the number of salesmen in our law enforcement and commercial channels in late 20182020. We expect continued reductions in salesman commissions and increased travel expenses in 2019 compared to 2018.The overall effective commission rate was 24.8% for the nine months ended September 30, 2019 compared to 20.2% forbalance of 2020 while the nine months ended September 30, 2018.effects of the COVID-19 pandemic continue.
Promotional and advertising expenses totaled $884,184$216,198 during the ninesix months ended SeptemberJune 30, 2020 compared to $634,807 during the six months ended June 30, 2019, compared to $295,641 during the nine months ended September 30, 2018, an increasea decrease of $588,543 (199%$19,584 (16%). The increasedecrease is primarily attributable to our sponsorship of the 2019 NASCAR race in May 2019Kansas City and efforts to expand brand awarenessthe suspension of the 2020 NASCAR season in 2020 and leverage our relationship with NASCAR for business opportunities.a reduction in attendance at trade shows as a result of the COVID-19 pandemic.
Stock-based compensation expense.Stock based compensation expense totaled $1,715,972$688,415 and $1,757,227$1,310,393 for the ninesix months ended SeptemberJune 30, 20182020 and 2017,2019, respectively, a decrease of $41,255 (2%$621,978 (47%). The decrease is primarily due to the decreased amortization during the ninesix months ended SeptemberJune 30, 20192020 related to the restricted stock granted at a lower market price per share during 20192020 and 20182019 to our officers, directors, and other employees. We relied more on stock-based compensation during 20192020 and 20182019 as we attempted to reduce cash expenses for liquidity reasons.
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Professional fees and expense.. Professional fees and expenses totaled $1,338,448$557,318 and $1,167,761$1,169,452 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $170,687 (15%$612,134 (52%). The decrease in professional fees areis primarily attributable to legal fees and expenses related to the ongoing Axon lawsuit and the resolution of the WatchGuard and PGA lawsuits. We resolved the PGA lawsuit on April 17, 2019 and the associated cost was accrued as of September 30, 2019. The WatchGuard lawsuit was settled on May13, 2019. On June 17, 2019, the U.S. District Court granted Axon’s Motionmotion for Summary Judgment whichsummary judgment and accepted Axon’s position that it did not infringe on our patent‘452 Patent and dismissed the lawsuit in its entirety. We have appealed the U.S District Court’s ruling.ruling and on April 22, 2020, a three-judge panel of the United States Court of Appeals denied our appeal and affirmed the U.S. District Court’s previous decision to grant Axon summary judgment. The Company filed a motion requesting a rehearing in front of the Court of Appeals which was denied on June 9, 2020.
The Company has until November 7, 2020 to decide whether it will appeal the U.S. District Court’s and Court of Appeals’ decisions to the United States Supreme Court. Our spending on legal fees on the Axon case has slowed during 2020 as we waited for the appeal to be heard. The Company’s decision on whether it will appeal the decisions to the United States Supreme Court will impact the trend of legal expenses for the balance of 2020.
Executive, sales and administrative staff payroll.Executive, sales and administrative staff payroll expenses totaled $2,440,926$1,231,650 and $1,380,209$1,705,289 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $1,060,717 (77%$473,639 (28%). The primary reason for the increasedecrease in executive, sales and administrative staff payroll was an increasea reduction in our technical support staffing in response to the COVID-19 pandemic and we expect such reductions to continue to reduce related staff from 83 at September 30, 2018 to 114 at September 30, 2019 and bonuses paid to executivesexpenses during the nine months ended September 30, 2019.balance of 2020. The COVID-19 pandemic has significantly impacted the Company’s new event security business channel in 2020 as many sporting venues were closed including those served by these service technicians.
Other. Other selling, general and administrative expenses totaled $2,191,191$1,236,449 and $1,724,514$1,426,922 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an increasea decrease of $466,677 (27%$190,473 (13%). The increasedecrease in other expenses induring the ninesix months ended SeptemberJune 30, 20192020 compared to 2018the 2019 period is primarily attributable to higherlower contract employee expenses and travel costs. We have added several contract employees to our technical support teams during 2019.costs, a result of the COVID-19 pandemic.
Patent litigation settlement.The income attributable to our patent litigation settlement was $6.0 million$-0- and $-0-$6,000,000 for the ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, respectively. On May 13, 2019 we reached a resolution of the pending patent infringement litigation with WatchGuard and executed a settlement agreement that resulted in the dismissal of this case. As part of the settlementsuch agreement, we received a one-time $6.0 million$6,000,000 payment and granted WatchGuard a perpetual covenant to not sue WatchGuard if its products incorporate agreed-upon modified recording functionality. Additionally, we granted itWatchGuard a license to the ‘292 Patent and ‘452 Patent through December 31, 2023. As part of the settlement, the partieswe and WatchGuard agreed that WatchGuard madewas making no admission that it had infringed on any of our patents. See Note 11, “Contingencies”9 -- “Commitments and Contingencies” to the June 30, 2020 Financial Statements, for the details respecting the settlement.
Operating Loss
For the reasons previously stated above, our operating loss was $2,798,963$4,070,519 and $5,320,341$518,516 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively, an improvementa deterioration of $2,521,378 (47%$3,552,003 (685%). Operating loss as a percentage of revenues decreasedimproved to 35% for the first nine months of 201982% in 2020, from 60% for the same period121% in 2018.2019.
Interest Income
Interest income increased to $30,279$21,869 for the ninesix months ended SeptemberJune 30, 2020 from $23,612 in the 2019 from $4,507 in 2018period, which reflected our overall higherlower cash and cash equivalent levels in 20192020 compared to 2018.first quarter 2019. The Company raised significant amounts of cash through the closing of two underwritten public offerings and the exercise of outstanding common stock purchase warrants during June 2020, which will generate interest income in future quarters.
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Interest Expense
We incurred interest expense of $37,037$333,196 and $1,366,520$-0- during the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018. Werespectively.
The Company issued an aggregate of $2.778$1.667 million principal amount of Notessecured convertible notes on August 5, 2019 bearingApril 20, 2020 which bore interest at 8% per annum on the outstanding principal balance. During the six months ended June 30, 2020, the holders of the secured convertible notes exercised their right to convert principal balances aggregating $1.666 million into equity. In Mayaddition, the Company exercised its right to prepay in cash the remaining outstanding principal balance aggregating $1,000. Such secured convertible notes are no longer outstanding as of June 30, 2020, as a result of these conversions and April 2018, weprepayments.
The Company issued an aggregate of $6.875$2.778 million principal amount of Debentures bearingsecured convertible notes on August 5, 2019 which bore interest at the rate of 8% per annum on the outstanding principal balance. WeDuring the six months ended June 30, 2020, the holders of the secured convertible notes exercised their right to convert principal balances aggregating $1,259,074 into equity. In addition, the Company paid regular monthly principal payments totaling $172,839 during the 2018 Debenturessix months ended June 30, 2020 and on March 3, 2020, the Company exercised its right to prepay in full on August 21, 2018, but were required to paycash the remaining 12 monthsoutstanding principal balance aggregating $574,341. Such secured convertible notes are no longer outstanding as of guaranteed interest on the Debentures, which includedJune 30, 2020, as a 10% premium, because they were not retired before August 1, 2018.
Change in Warrant Derivative Liabilitiesresult of these conversions and prepayments.
We
The Company issueddetachablewarrants exercisable to purchase a total an unsecured promissory note in an aggregate principal amount of 398,916 common shares, as adjusted,$300,000 on December 23, 2019 which bore interest at 8% per annum on the outstanding principal balance and which has been repaid in conjunction with $2.0 million and $4.0 million Secured Convertible Notes during March and August 2014. The warrants were required to be treated as derivative liabilities because of their anti-dilution and down-round provisions. Accordingly, we estimated the fair value of such warrantsfull as of their respective dates of issuance and recordedJune 30, 2020. In addition, during 2020 we issued an unsecured note payable with a corresponding derivative liabilityrelated party in the balance sheet. Upon exerciseprincipal amount of the warrants$319,000 which bore interest at 6% per annum and which has been repaid in full as of June 30, 2020 and we recognized a gain/loss basedissued an aggregate of $100,000 principal amount of unsecured promissory note payable which bore interest at 8% per annum on the closing market priceoutstanding principal balance which remained outstanding until it was paid in full as of June 30, 2020.
On April 4, 2020, the underlying common stock onCompany entered into a promissory note providing for a PPP Loan of $1,418,900. The PPP Loan has a two-year term and bears interest at a rate of 1.0% per annum. Monthly principal and interest payments are deferred for six months after the date of exercise. In addition,disbursement and total $79,850.57 per month thereafter. On May 12, 2020 the warrant derivative liability was adjusted toCompany received $150,000 in additional loan funding under the estimated fair value of any unexercised warrants as of December 31, 2017 and September 30, 2018.
The holderEIDL program administered by the SBA. Under the terms of the warrants exercised its option to purchase common stock for all remainingEIDL promissory note, interest accrues on the outstanding warrants duringprincipal at the year ended December 31, 2018. There remained no warrants classified as derivative liabilities outstanding at December 31, 2018; therefore, the respective warrant derivative liability balance was $0 at December 31, 2018 and no change in fair value for the nine months ended September 30, 2019
rate of 3.75% per annum. The changes in the fair valueterm of the warrant derivatives related to unexercised warrants resulted in a chargeEIDL promissory note is thirty years and monthly principal and interest payments are deferred for twelve months after the date of $319,105 for the nine months ended September 30, 2018.disbursement and total $731.00 per month thereafter.
Secured Convertible DebenturesNotes Issuance Expenses
We elected to account for and record our secured convertible notes$1.667 million principal amount of the 2020 Convertible Notes issued in August 2019April 2020 on a fair value basis. Accordingly, we were required to expense the related issuance costs to other expense in the condensed consolidated statements of operations. Such costs totaled $89,148$34,906 for the ninesix months ended SeptemberJune 30, 2019.
We elected to account for and record our $6.875 million Secured Convertible Debenture issued in April and May 2018 on a fair value basis. Accordingly, we were required to expense the related issuance costs to other expense in the condensed consolidated statements of operations. Such costs totaled $220,312 for the nine months ended September 30, 2018.2020. The issuance costs primarily included a $150,000 placement agent feerelated legal and accounting fees. No similar debt issuances occurred during the remainder was primarily legal fees.
Loss on Extinguishment of Secured Convertible Debentures
The Board of Directors approved the Private Placement of $6.875 million of debentures and 806,667 Warrants exercisable to purchase 916,667 shares of our common stock. The Private Placement closed on April 3, 2018.
The Private Placement resulted in gross proceeds of $6.25 million before placement agent fees and other expenses associated with the transaction. A portion of the proceeds was used to repay in full the Debentures issued in December 2016, which matured on March 30, 2018, and approximately $758,500 principal amount of the June Note and Secured Note that matured in March 2018. The balance of the proceeds was used for working capital purposes.
In conjunction with the transaction we recorded a loss on extinguishment of the secured convertible debentures totaling $600,000 for the ninesix months ended SeptemberJune 30, 2018. There was no similar extinguishment of secured convertible debentures in 2019.
Change in Fair Value of Proceeds Investment Agreement
We elected to account for the PIA that was entered into July of 2018 on its fair value basis. Therefore, we determined the fair value of the 2018 PIA as of SeptemberJune 30, 2019,2020 and December 31, 20182020 to be $6,417,000$3,615,000 and $9,142,000,$6,500,000, respectively. DuringThe change in fair value from December 31, 2020 to June 30, 2020 was $2,885,000, which was recognized as a gain in the nineCondensed Consolidated Statement of Operations for the six months ended SeptemberJune 30, 2019, we settled our patent infringement litigation with WatchGuard and received a lump sum payment of $6.0 million as further described in Note 11. In accordance with the terms of the PIA, we remitted the $6.0 million as a principal payment toward our minimum return payment obligations under the PIA.2020. The change in fair value from December 31, 2018 to SeptemberJune 30, 2019 was $3,275,000,$(3,098,000), which was recognized as a loss in the Condensed Consolidated Statement of Operations atfor the six months ended June 30, 2019.
In July 2018 we determined the fair value of the 2018 PIA was an estimated fair value of $9,067,513 as of its origination date. We also determined the estimated fair value was $9,166,000 for the PIA as of September 30,2018. The change in fair value from origination date until September 30, 2018 was $98,487, which was recognized as a loss in the Condensed Consolidated Statement of Operations.
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Change in Fair Value of Secured Convertible Notes
We elected to account for the secured convertible notes that were issued in August of 2019 on itsApril 17, 2020 on their fair value basis. Therefore, we determined the fair value of the secured convertible notes as of their issuance date of April 17, 2020 and as of September 30, 2019 to be $1,845,512 and $1,606,305, respectively. During the nine months ended September 30, 2019, the holders converted an aggregate of $648,067 of convertible note principal.through June 12, 2020, when they were paid in full. The change in fair value from thetheir issuance date of August 5, 2019 and September 30, 2019April 17, 2020 to their pay-off date was $408,860,$887,807, which was recognized as a charge in the Condensed Consolidated Statement of Operations at Septemberfor the six months ended June 30, 2019.
Change in Fair Value of Secured Convertible Debentures2020.
We elected to account for the $4.0 million principal amount of Debentures whichsecured convertible notes that were paid off on April 3, 2018 on their fair value basis. The change in fair value of the debentures was $12,807 during the nine months ended September 30, 2018 which was recognized as a gain in the Condensed Consolidated Statement of Operations. We paid these Debentures on April 3, 2018 so there was no similar fair value change in the nine months ended September 30, 2019.
We elected to account for the $6.875 million principal amount of 2018 Debentures issued in April and May 2018August of 2019 on their fair value basis. Therefore, we determined the estimated fair value of the 2018 Debentures was $4,565,749 including their embedded derivativessecured convertible notes as of their origination date. We also determined the estimated fair value of $5,354,803 for the 2018 Debentures including their embedded derivatives as of June 30, 2018. Weissuance date on December 31, 2019 until they were paid the 2018 Debentures on August 21, 2018 in full and theon March 3, 2020. The change in fair value of the 2018 Debentures from originationDecember 31, 2019 to their pay-off date to August 21, 2018 was $2,309,251,$412,445, which was recognized as a losscharge in the Condensed Consolidated Statement of Operations.
The net charge to change in fair value of secured debenturesOperations for the ninesix months ended SeptemberJune 30, 2018 was $2,296,444. We retired these Debentures on August 21, 2018 and thus there was no similar fair value change in the nine months ended September 30, 2019.2020.
Loss before Income Tax Benefit
As a result of the above, we reported a loss before income tax benefit of $6,578,729$2,832,004 and $10,216,702$3,592,904 for the ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, an improvement of $3,637,973 (36%$760,900 (21%).
Income Tax Benefit
We did not record an income tax benefit related to our losses for the ninesix months ended SeptemberJune 30, 20192020 due to our overall net operating loss carryforwards available. We have further determined to continue providing a full valuation reserve on our net deferred tax assets as of SeptemberJune 30, 2019.
2020. We had approximately $61,600,000$66,925,000 of net operating loss carryforwards and $1,795,000 of research and development tax credit carryforwards as ofdetermined on December 31, 20182019 available to offset future net taxable income.
Net Loss
As a result of the above, we reported net losses of $6,578,729$2,832,004 and $10,216,702$3,592,904 for the ninesix months ended SeptemberJune 30, 2020 and 2019, and 2018, respectively,an improvement of $3,637,973 (36%$760,900 (21%).
Basic and Diluted Loss per Share
The basic and diluted loss per share was ($0.58)0.17) and ($1.40)0.32) for the ninesix months ended SeptemberJune 30, 20192020 and 2018,2019, respectively, for the reasons previously noted. All outstanding stock options, warrants and convertible securities were considered antidilutive and therefore excluded from the calculation of diluted loss per share for the ninesix months ended SeptemberJune 30, 20192020 and 20182019 because of the net loss reported for each period.such periods.
Liquidity and Capital Resources and Going Concern
Overall:
Management’s Liquidity Plan.Plan and Going Concern. The June 30, 2020 Financial Statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company incurred substantial operating losses in recent yearsfor the six months ended June 30, 2020 and for the year ended December 31, 2019 primarily due to reduced revenues and gross margins caused by a variety of factors, including the factors cited elsewhere in this ReportCOVID-19 pandemic and has accessedits related effects on our customers and our supply chain, and by competitors’ introduction of newer products with more advanced features together with significant price cutting of their products. The Company incurred net losses of approximately $2.8 million during the public and private capital markets to raise funding through the issuance of debt and equity. During the ninesix months ended SeptemberJune 30, 2020 and $10.0 million for the year ended December 31, 2019 and it had an accumulated deficit of $90.2 million as of June 30, 2020. During 2019, the Company settled one of its patent infringement cases and received a lump sum payment of $6.0 million, which itwas used to pay its obligations under the PIAits Proceeds Investment Agreement, as more fully described in Note 11.4 – “Proceeds Investment Agreement Obligation” to the June 30, 2020 Financial Statements. In recent years the Company has accessed the public and private capital markets to raise funding through the issuance of debt and equity. In that regard, the Company raised $2,500,000$12.8 million in underwritten public offerings of common stock, $5.2 million through issuancesthe exercise of common stock purchase warrants and options, $1.6 million through the issuance of promissory notes under the SBA’s PPP and EIDL programs, raised $1.5 million through the issuance of secured convertible debtnotes and $419,000 in unsecured promissory notes and detachable warrants during the six months ended June 30, 2020. In addition, the Company raised $1,564,000 in the year ended December 31, 2019 from the exercise of warrants, in the nine months ended September 30, 2019. Additionally, the Companyborrowed $300,000 pursuant to a short-term promissory note payable on December 23, 2019 with detachable warrants to purchase 107,000 shares of common stock and on August 5, 2019, and raised capital throughfunds from the issuance of subordinated debt,$2.78 million principal balance of secured debt and the PIA totaling $16,500,000, and net proceeds of $7,324,900 from an underwritten public offeringconvertible notes with detachable warrants to purchase 571,248 shares of common stock duringwith the year ended December 31, 2018. The Company issued common stock with detachable common stock purchase warrantsnet proceeds used for $2,776,332 and raisedworking capital from subordinated and secured debt totaling $1,608,500 duringpurposes as more fully described in Note 3—“Debt Obligations” to the year ended December 31, 2017. During 2016, the Company raised $4.0 million through the issuance of convertible debentures and common stock purchase warrants.June 30, 2020 Financial Statements. These debt and equity raises were utilized to fund itsthe Company’s operations and management expects to continue this pattern until itthe Company achieves positive cash flows from operations, although it can offer no assurance in this regard.
On April 4, 2020, the Company issued a promissory note in connection with the receipt of a loan of $1,418,900 (the “PPP Loan”) under the SBA’s PPP under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The PPP Loan has a two-year term and bears interest at a rate of 1% per annum. Monthly principal and interest payments are deferred for six months after the date of disbursement. The PPP Loan may be prepaid at any time prior to maturity with no prepayment penalties. Such promissory note contains events of default and other provisions customary for a loan of this type. The PPP provides that the PPP Loan may be partially or wholly forgiven if the funds are used for certain qualifying expenses as described in the CARES Act. The Company intends to use the majority of the PPP Loan amount for qualifying expenses and to apply for forgiveness of the loan in accordance with the terms of the CARES Act. As of June 30, 2020, the Company has used the entirety of the PPP Loan proceeds for purposes consistent with the PPP and has not taken any actions that it believes will reduce the amount eligible for forgiveness. As such, the Company believes that the entire amount of the PPP Loan will be forgiven. However, to the extent any portion of the PPP Loan is determined to be ineligible for forgiveness, we will be required to repay any portion of the outstanding principal that is not forgiven, along with accrued interest, and we cannot provide any assurance that we will be eligible for loan forgiveness or that any amount of the PPP Loan will ultimately be forgiven by the SBA. On April 23, 2020, the SBA issued guidance stating that it is unlikely that a public company with substantial market value and access to capital markets will be able to make the certification required to obtain a PPP loan in good faith. The lack of clarity regarding loan eligibility under the CARES Act PPP has resulted in significant media coverage and controversy with respect to public companies applying for and receiving loans. If, despite our good-faith belief that we satisfied all eligible requirements for the PPP Loan, we are later determined to have violated any of the laws or governmental regulations that apply to us in connection with the PPP Loan, such as the False Claims Act, or it is otherwise determined that we were ineligible to receive the PPP Loan, we may be subject to penalties, including significant civil, criminal and administrative penalties, and could be required to repay the PPP Loan in its entirety. In addition, our receipt of the PPP Loan may result in adverse publicity and damage to our reputation, and a review or audit by the SBA or other government entity or claims under the False Claims Act could consume significant financial and management resources.
On July 2, 2020 the SEC declared the Company’s Shelf Registration Statement effective. The Shelf Registration Statement will provide the Company with access to liquidity from the public markets should it decide to utilize it for such purposes. The Shelf Registration Statement allows the Company to offer and sell, from time to time in one or more offerings, any combination of our common stock, debt securities, debt securities convertible into common stock or other securities in any combination thereof, rights to purchase shares of common stock or other securities in any combination thereof, warrants to purchase shares of common stock or other securities in any combination thereof or units consisting of common stock or other securities in any combination thereof having an aggregate initial offering price not exceeding $125,000,000.
The Company will have to restore positive operating cash flows and profitability over the next year and/or raise additional capital to fund its operational plans, meet its customary payment obligations and otherwise execute its business plan. There can be no assurance that it will be successful in restoring positive cash flows and profitability, or that it can raise additional debt or equity financing when needed, and obtain it on terms acceptable or favorable to the Company.
The Company has implemented an enhanced quality control program to detect and correct product issues before they result in significant re-work expenditures affecting the Company’s gross margins and has seen progress in that regard. The Company has increased its addressable market to non-law enforcement customers and obtained new non-law enforcement contracts in 20172020 and 2018,2019, which contracts include recurring revenue during the period 2019from 2020 to 2020. It2023. The Company believes that its quality control and cost cutting initiatives, and expansion to non-law enforcement sales channels and new product introduction will eventually restore positive operating cash flows and profitability, during the next year, although it can offer no assurances in this regard.
If we must further supplement The extent to which our liquidityfuture operating results are affected by COVID-19 will largely depend on future developments which cannot be accurately predicted, including the duration and scope of the pandemic, governmental and business responses to supportthe pandemic and the impact on the global economy, our operations in 2019, givencustomers’ demand for our recent history of net operating lossesproducts and negative cash flows, we do not believe that traditional banking indebtedness would be available to us given our recent operating history. Our 2019 operating plan could include raising additional capital through an asset sale, a public offering or a private placement of debt or equity, all of which are under consideration as part of our strategic alternatives. We have demonstratedservices, and our ability to raise new debt provide our products and services, particularly as result of our employees working remotely and/or equity capital in 2019the closure of certain offices and recent years. If necessary,facilities. While these factors are uncertain, we believe that we could raise additional capital during the next 12 months if required, but we can offer no assurances in this regard.
Further, we had warrants outstanding exercisable to purchase 4,717,573 sharesCOVID-19 pandemic or the perception of common stock atits effects will have a weighted average exercise price $5.23 per share outstanding asmaterial adverse effect on our business, financial condition, results of September 30, 2019. In addition, there are common stock options outstanding exercisable to purchase 454,125 shares at an average price of $3.96 per share. We could potentially use such outstanding warrants to provide near-term liquidity if we could induce their holders to exercise their warrants by adjusting/lowering the exercise price on a temporary or permanent basis if the exercise price was below the then market price of our common stock, although we can offer no assurances in this regard. Ultimately, we must restore profitable operations and positive cash flows to provide liquidity to support our operations and, if necessary, to raise capital on commercially reasonable terms in 2019, although we can offer no assurances in this regard.
flows.
Based on the uncertainties described above, we believe ourthe Company believes its business plan does not alleviate the existence of substantial doubt about ourits ability to continue as a going concern within one year afterfrom the date thatof the issuance of these unaudited condensed consolidated financial statements. The accompanying unaudited condensed consolidated financial statements in this Report are filed withdo not include any adjustments related to the Securitiesrecoverability and Exchange Commission.
We had $1,272,935classification of available cash and equivalents and net working capitalasset amounts or the classification of approximately $3,695,076liabilities that might be necessary should the Company be unable to continue as of September 30, 2019. Net working capital as of September 30, 2019 includes approximately $1.8 million of accounts receivable and $6.4 million of inventory.a going concern.
Cash, and cash equivalents balances:equivalents: As of SeptemberJune 30, 2019,2020, we had cash and cash equivalents with an aggregate balance of $1,272,935, a decrease$16,165,550, an increase from a balance of $3,598,807$359,685 at December 31, 2018.2019. Summarized immediately below and discussed in more detail in the subsequent subsections are the main elements of the $2,325,872$15,805,865 net decreaseincrease in cash during the ninesix months ended SeptemberJune 30, 2019:2020:
| ● | Operating | $ | |
| ● | Investing | $ | |
| ● | Financing | $ |
The net result of these activities was a decreasean increase in cash of $2,325,872 to $1,272,935$15,805,865 for the ninesix months ended SeptemberJune 30, 2019.2020 to $16,165,550 as of June 30, 2020.
Commitments:
We had $1,272,935$16,165,550 of cash and cash equivalent balancesequivalents and net positive working capital approximating $3,695,076$14,777,559 as of SeptemberJune 30, 2019.2020. Accounts receivable balances represented $1,762,169$1,619,234 of our net working capital at SeptemberJune 30, 2019.2020. We intend to collect our outstanding receivables on a timely basis and reduce the overall level during 2019,the balance of 2020, which would help to provide positive cash flow to support our operations during the balance of 2019.2020. Inventory represented $6,381,713$4,752,285 of our net working capital at SeptemberJune 30, 20192020 and finished goods represented $5,161,430$4,146,308 of total inventory.inventory at June 30, 2020. We are actively managing the overall level of inventory and our goal is to reduce such levelslevel during the balance of 20192020 by our sales activities, which should provide additional cash flow to help support our operations during 2019.activities.
Capital Expenditures.We had no material commitments for capital expenditures at September 30, 2019.
Lease Commitments-Operating Leases. We have a non-cancelable long-term operating lease agreement for office and warehouse space that expires during April 2020. We have also entered into month-to-month leases for equipment and facilities. Rent expense related to these leases was $298,292 for the nine months ended September 30, 2019 and 2018, respectively. Following are our minimum lease payments for each year and in total.
| Year ending December 31: | ||||
| 2019 (period from October 1, 2019 to December 31, 2019) | $ | 115,092 | ||
| 2020 | 154,131 | |||
| $ | 269,223 | |||
Litigation.
From time to time, we are notified that we may be a party to a lawsuit or that a claim is being made against us. It is our policy to not disclose the specifics of any claim or threatened lawsuit until the summons and complaint are actually served on us. After carefully assessing the claim, and assuming we determine that we are not at fault or we disagree with the damages or relief demanded, we vigorously defend any lawsuit filed against us. We record a liability when losses are deemed probable and reasonably estimable. When losses are deemed reasonably possible but not probable, we determine whether it is possible to provide an estimate of the amount of the loss or range of possible losses for the claim, if material for disclosure. In evaluating matters for accrual and disclosure purposes, we take into consideration factors such as our historical experience with matters of a similar nature, the specific facts and circumstances asserted, the likelihood of our prevailing, the availability of insurance, and the severity of any potential loss. We reevaluate and update accruals as matters progress over time.
While the ultimate resolution is unknown we do not expect that these lawsuits will individually, or in the aggregate, have a material adverse effect to our results of operations, financial condition or cash flows. However, the outcome of any litigation is inherently uncertain and there can be no assurance that any expense, liability or damages that may ultimately result from the resolution of these matters will be covered by our insurance or will not be in excess of amounts recognized or provided by insurance coverage and will not have a material adverse effect on our operating results, financial condition or cash flows.
Axon
The Company owns U.S. Patent No. 9,253,452 (the “ ‘452 Patent”), which generally covers the automatic activation and coordination of multiple recording devices in response to a triggering event, such as a law enforcement officer activating the light bar on the vehicle.
The Company filed suit on January 15, 2016 in the U.S. District Court for the District of Kansas (Case No: 2:16-cv-02032) against Axon, alleging willful patent infringement against Axon’s body camera product line and Signal auto-activation product. The Company is seeking both monetary damages and a permanent injunction against Axon for infringement of the ‘452 Patent.
In addition to the infringement claims, the Company brought claims alleging that Axon conspired to keep the Company out of the marketplace by engaging in improper, unethical, and unfair competition. The amended lawsuit alleges Axon bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. The Company’s lawsuit also seeks monetary and injunctive relief, including treble damages, for these alleged violations.
Axon filed an answer, which denied the patent infringement allegations on April 1, 2016. In addition, Axon filed a motion to dismiss all allegations in the complaint on March 4, 2016 for which the Company filed an amended complaint on March 18, 2016 to address certain technical deficiencies in the pleadings. Digital amended its complaint and Axon renewed its motion to seek dismissal of the allegations that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law on April 1, 2016. Formal discovery commenced on April 12, 2016 with respect to the patent related claims. In January 2017, the Court granted Axon’s motion to dismiss the portion of the lawsuit regarding claims that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. On May 2, 2018, the Federal Circuit affirmed the District Court’s ruling and on October 1, 2018 the Supreme Court denied Digital Ally’s petition for review.
In December 2016 and January 2017, Axon filed two petitions forInter Partes Review (“IPR”) against the ‘452 Patent. The United States Patent and Trademark Office (“USPTO”) rejected both of Axon’s petitions. Axon is now statutorily precluded from filing any more IPR petitions against the ‘452 Patent.
The District Court litigation in Kansas was temporarily stayed following the filing of the petitions for IPR. However, on November 17, 2017, the Federal District Court of Kansas rejected Axon’s request to maintain the stay. With this significant ruling, the parties will now proceed towards trial. Since litigation has resumed, the Court has issued a claim construction order (also called aMarkmanOrder) where it sided with the Company on all disputes and denied Axon’s attempts to limit the scope of the claims. Following theMarkman Order, the Court set all remaining deadlines in the case. Fact discovery closed on October 8, 2018, and a Final Pretrial Conference took place on January 16, 2019. The parties filed motions for summary judgment on January 31, 2019.
On June 17, 2019, the Court granted Axon’s motion for summary judgment that Axon did not infringe on the Company’s patent and dismissed the case. Importantly, the Court’s ruling did not find that Digital’s ‘452 Patent was invalid. It also did not address any other issue, such as whether Digital’s requested damages were appropriate, and it does not impact the Company’s ability to file additional lawsuits to hold other competitors accountable for patent infringement. This ruling solely related to an interpretation of the claims as they relate to Axon and was unrelated to the supplemental briefing Digital recently filed on its damages claim and the WatchGuard settlement. Those issues are separate and the judge’s ruling on summary judgment had nothing to do with Digital’s damages request. The Company has filed an appeal to this ruling and has asked the appellate court to reverse this decision.
The Company filed its Opening Appeal Brief on August 26, 2019 and Axon filed its Responsive Brief on November 6, 2019. The Company will file its Reply Brief responding to Axon no later than November 27, 2019.
WatchGuard
On May 27, 2016 the Company filed suit against WatchGuard, (Case No. 2:16-cv-02349-JTM-JPO) alleging patent infringement based on WatchGuard’s VISTA Wifi and 4RE In-Car product lines.
On May 13, 2019, the parties resolved the dispute and executed a settlement agreement in the form of a Release and License Agreement. The litigation has been dismissed as a result of this settlement.
The Release and License Agreement encompasses the following key terms:
| ||
Upon receipt of the $6.0 million the parties filed a joint motion to dismiss the lawsuit which the judge granted.
PGA Tour, Inc.
On January 22, 2019 the PGA Tour, Inc. (the “PGA”) filed suit against the Company in the Federal District Court for the District of Kansas (Case No. 2:19-cv-0033-CM-KGG) alleging breach of contract and breach of implied covenant of good faith and fair dealing relative to the Web.com Tour Title Sponsor Agreement (the “Agreement”). The contract was executed on April 16, 2015 by and between the parties. Under the Agreement, Digital Ally would be a title sponsor of and receive certain naming and other rights and benefits associated with the Web.com Tour for 2015 through 2019 in exchange for Digital Ally’s payment to Tour of annual sponsorship fees.
The suit has been resolved and the case was dismissed by the PGA with prejudice on April 17, 2019.
401 (k) Plan.In July 2008, the Company amended and restated its 401(k) retirement savings plan. The amended plan requires the Company to provide 100% matching contributions for employees who elect to contribute up to 3% of their compensation to the plan and 50% matching contributions for employee’s elective deferrals on the next 2% of their contributions. The Company made matching contributions totaling $27,235 and $26,680 for the three months ended September 30, 2019 and 2018, respectively, and $80,645 and $85,028 for the nine months ended September 30, 2019 and 2018, respectively. Each participant is 100% vested at all times in employee and employer matching contributions.
Consulting and Distributor Agreements.The Company entered into an agreement that required it to make monthly payments that will be applied to future commissions and/or consulting fees to be earned by the provider. The agreement is with a limited liability company (“LLC”) that is minority owned by a relative of the Company’s chief financial officer. Under the agreement, dated January 15, 2016 and as amended on February 13, 2017, the LLC provides consulting services for developing a new distribution channel outside of law enforcement for its body-worn camera and related cloud storage products to customers in the United States. The Company advanced amounts to the LLC against commissions ranging from $5,000 to $6,000 per month plus necessary and reasonable expenses for the period through June 30, 2017, which can be automatically extended based on the LLC achieving minimum sales quotas. The agreement was renewed in January 2017 for a period of three years, subject to yearly minimum sales thresholds that would allow the Company to terminate the contract if such minimums were not met. As of September 30, 2019, the Company had advanced a total of $276,150 pursuant to this agreement and established an allowance reserve of $164,140 for a net advance of $112,010. The minimum sales threshold has not been met and the Company has discontinued all advances, although the contract has not been formally terminated. However, the exclusivity provisions of the agreement have been terminated.
On June 1, 2018 the Company entered into an agreement with an individual that required it to make monthly payments that will be applied to future commissions and/or consulting fees to be earned by the provider. Under the agreement, the individual provides consulting services for developing new distribution channels both inside and outside of law enforcement for its in-car and body-worn camera systems and related cloud storage products to customers within and outside the United States. The Company was required to advance amounts to the individual as an advance against commissions of $7,000 per month plus necessary and reasonable expenses for the period through August 31, 2018, which was extended to December 31, 2018 by mutual agreement of the parties at $6,000 per month. The parties have mutually agreed to further extend the arrangement on a monthly basis at $5,000 per month. As of September 30, 2019, the Company had advanced a total of $53,332 pursuant to this agreement.
Critical Accounting Policies
Critical Accounting Policies
Our significant accounting policies are summarized in note 1 to our condensed consolidated financial statements included in Item 1, “Financial Statements”, of this report. While the selection and application of any accounting policy may involve some level of subjective judgments and estimates, we believe the following accounting policies are the most critical to our financial statements, potentially involve the most subjective judgments in their selection and application, and are the most susceptible to uncertainties and changing conditions:
Revenue Recognition / Allowances for Doubtful Accounts. Revenue is recognized for the shipment of products or delivery of service when all four of the following conditions are met:
We consider the terms and conditions of the contract and our customary business practices in identifying our contracts under ASC 606. We determine we have a contract when the customer order is approved, we can identify each party’s rights regarding the services to be transferred, we can identify the payment terms for the services, we have determined the customer has the ability and intent to pay and the contract has commercial substance. At contract inception we evaluate whether the contract includes more than one performance obligation. We apply judgment in determining the customer’s ability and intent to pay, which is based on a variety of factors, including the customer’s historical payment experience or, in the case of a new customer, credit and financial information pertaining to the customer.
Performance obligations promised in a contract are identified based on the services and the products that will be transferred to the customer that are both capable of being distinct, whereby the customer can benefit from the service either on its own or together with other resources that are readily available from third parties or from us, and are distinct in the context of the contract, whereby the transfer of the services and the products is separately identifiable from other promises in the contract. Our performance obligations consist of (i) products, (ii) professional services, and (iii) extended warranties.
The transaction price is determined based on the consideration to which we expect to be entitled in exchange for transferring services to the customer. Variable consideration is included in the transaction price if, in our judgment it is probable that a significant future reversal of cumulative revenue under the contract will not occur. None of our contracts contain a significant financing component.
If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that contain multiple performance obligations require an allocation of the transaction price to each performance obligation based on the relative standalone selling price (“SSP”).
Revenue is recognized at the time the related performance obligation is satisfied by transferring the control of the promised service to a customer. Revenue is recognized when control of the service is transferred to the customer, in an amount that reflects the consideration that we expect to receive in exchange for our services. We generate all our revenue from contracts with customers.
We review all significant, unusual or nonstandard shipments of product or delivery of services as a routine part of our accounting and financial reporting process to determine compliance with these requirements. Extended warranties are offered on selected products and when a customer purchases an extended warranty the associated proceeds are treated as contract liability and recognized over the term of the extended warranty.
Our principal customers are state, local and federal law enforcement agencies, which historically have been low risks for uncollectible accounts. However, we have commercial customers and international distributors that present a greater risk for uncollectible accounts than such law enforcement customers and we consider a specific reserve for bad debts based on their individual circumstances. Our historical bad debts have been negligible, with less than $258,000 charged off as uncollectible on cumulative revenues of $236.4 million since we commenced deliveries during 2006. As of September 30, 2019, and December 31, 2018, we had provided a reserve for doubtful accounts of $123,224 and $70,000, respectively.
We periodically perform a specific review of significant individual receivables outstanding for risk of loss due to uncollectibility. Based on such review, we consider our reserve for doubtful accounts to be adequate as of September 30, 2019. However, should the balance due from any significant customer ultimately become uncollectible then our allowance for bad debts will not be sufficient to cover the charge-off and we will be required to record additional bad debt expense in our statement of operations.
Allowance for Excess and Obsolete Inventory.We record valuation reserves on our inventory for estimated excess or obsolete inventory items. The amount of the reserve is equal to the difference between the cost of the inventory and the estimated market value based upon assumptions about future demand and market conditions. On a quarterly basis, management performs an analysis of the underlying inventory to identify reserves needed for excess and obsolescence. Management uses its best judgment to estimate appropriate reserves based on this analysis. In addition, we adjust the carrying value of inventory if the current market value of that inventory is below its cost.
Inventories consisted of the following at September 30, 2019 and December 31, 2018:
September 30, 2019 | December 31, 2018 | |||||||
| Raw material and component parts | $ | 4,220,724 | $ | 4,969,786 | ||||
| Work-in-process | 334,967 | 351,451 | ||||||
| Finished goods | 5,161,430 | 4,965,594 | ||||||
| Subtotal | 9,717,121 | 10,286,831 | ||||||
| Reserve for excess and obsolete inventory | (3,335,408 | ) | (3,287,771 | ) | ||||
| Total | $ | 6,381,713 | $ | 6,990,060 | ||||
We balance the need to maintain strategic inventory levels to ensure competitive delivery performance to our customers against the risk of inventory obsolescence due to changing technology and customer requirements. As reflected above, our inventory reserves represented 34.3% of the gross inventory balance at September 30, 2019, compared to 32.0% of the gross inventory balance at December 31, 2018. We had $3,335,408 and $3,287,771 in reserves for obsolete and excess inventories at September 30, 2019 and December 31, 2018, respectively. Total raw materials and component parts were $4,220,724 and $4,969,786 at September 30, 2019 and December 31, 2018, respectively, a decrease of $749,062 (15%). We scrapped older version inventory component parts that were mostly or fully reserved during the three months ended September 30, 2019, which was the primary cause for the decrease. Finished goods balances were $5,161,430 and $4,965,594 at September 30, 2019 and December 31, 2018, respectively, an increase of $195,836 (4%). The increase in the inventory reserve is primarily due a higher level of excess component parts of the older versions of our PCB boards and the phase out of our DVM-750, DVM-500 Plus and LaserAlly legacy products. We believe the reserves are appropriate given our inventory levels at September 30, 2019.
If actual future demand or market conditions are less favorable than those projected by management or significant engineering changes to our products that are not anticipated and appropriately managed, additional inventory write-downs may be required in excess of the inventory reserves already established.
Warranty Reserves. We generally provide up to a two-year parts and labor warranty on our products to our customers. Provisions for estimated expenses related to product warranties are made at the time products are sold. These estimates are established using historical information on the nature, frequency, and average cost of claims. We actively study trends of claims and take action to improve product quality and minimize claims. Our warranty reserves were decreased to $61,640 as of September 30, 2019 compared to $195,135 as of December 31, 2018 primarily for expected replacements associated with select FirstVU HD customers. We have limited experience with the FirstVU HD and DVM-800 and will monitor our reserve for all warranty claims related to these two newer products. There is a risk that we will have higher warranty claim frequency rates and average cost of claims than our history has indicated on our legacy mirror products on our new products for which we have limited experience. Actual experience could differ from the amounts estimated requiring adjustments to these liabilities in future periods.
Stock-based Compensation Expense.We grant stock options to our employees and directors and such benefits provided are share-based payment awards which require us to make significant estimates related to determining the value of our share-based compensation. Our expected stock-price volatility assumption is based on historical volatilities of the underlying stock which are obtained from public data sources and there were 180,000 options granted during the nine months ended September 30, 2019.
If factors change and we develop different assumptions in future periods, the compensation expense that we record in the future may differ significantly from what we have recorded in the current period. There is a high degree of subjectivity involved when using option pricing models to estimate share-based compensation. Changes in the subjective input assumptions can materially affect our estimates of fair values of our share-based compensation. Certain share-based payment awards, such as employee stock options, may expire worthless or otherwise result in zero intrinsic value compared to the fair values originally estimated on the grant date and reported in our financial statements. Alternatively, values may be realized from these instruments that are significantly in excess of the fair values originally estimated on the grant date and reported in our financial statements. Although the fair value of employee share-based awards is determined using an established option pricing model, that value may not be indicative of the fair value observed in a willing buyer/willing seller market transaction. In addition, we account for forfeitures as they occur.
Accounting for Income Taxes.Accounting for income taxes requires significant estimates and judgments on the part of management. Such estimates and judgments include, but are not limited to, the effective tax rate anticipated to apply to tax differences that are expected to reverse in the future, the sufficiency of taxable income in future periods to realize the benefits of net deferred tax assets and net operating losses currently recorded and the likelihood that tax positions taken in tax returns will be sustained on audit.
As required by authoritative guidance, we record deferred tax assets or liabilities based on differences between financial reporting and tax bases of assets and liabilities using currently enacted rates that will be in effect when the differences are expected to reverse. Authoritative guidance also requires that deferred tax assets be reduced by a valuation allowance if it is more likely than not that all or some portion of the deferred tax asset will not be realized. As of December 31, 2018, cumulative valuation allowances in the amount of $21,500,000 were recorded in connection with the net deferred income tax assets. Based on a review of our deferred tax assets and recent operating performance, we determined that it was appropriate to continue to provide a full valuation reserve on our net deferred tax assets as of September 30, 2019 because of the overall net operating loss carryforwards available. We expect to continue to maintain a full valuation allowance until we determine that we can sustain a level of profitability that demonstrates our ability to realize these assets. To the extent we determine that the realization of some or all of these benefits is more likely than not based upon expected future taxable income, a portion or all of the valuation allowance will be reversed. Such a reversal would be recorded as an income tax benefit and, for some portion related to deductions for stock option exercises, an increase in shareholders’ equity.
As required by authoritative guidance, we have performed a comprehensive review of our portfolio of uncertain tax positions in accordance with recognition standards established by the FASB, an uncertain tax position represents our expected treatment of a tax position taken in a filed tax return, or planned to be taken in a future tax return, that has not been reflected in measuring income tax expense for financial reporting purposes. We have no recorded liability as of September 30, 2019 representing uncertain tax positions.
We have generated substantial deferred income tax assets related to our operations primarily from the charge to compensation expense taken for stock options, certain tax credit carryforwards and net operating loss carryforwards. For us to realize the income tax benefit of these assets, we must generate sufficient taxable income in future periods when such deductions are allowed for income tax purposes. In some cases where deferred taxes were the result of compensation expense recognized on stock options, our ability to realize the income tax benefit of these assets is also dependent on our share price increasing to a point where these options have intrinsic value at least equal to the grant date fair value and are exercised. In assessing whether a valuation allowance is needed in connection with our deferred income tax assets, we have evaluated our ability to generate sufficient taxable income in future periods to utilize the benefit of the deferred income tax assets. We continue to evaluate our ability to use recorded deferred income tax asset balances. If we fail to generate taxable income for financial reporting in future years, no additional tax benefit would be recognized for those losses, since we will not have accumulated enough positive evidence to support our ability to utilize net operating loss carryforwards in the future. Therefore, we may be required to increase our valuation allowance in future periods should our assumptions regarding the generation of future taxable income not be realized.
Determination of Fair Value for Financial Instruments and Derivatives. During 2018 we entered into the Proceeds Investment Agreement (PIA). We elected to record the PIA, on their fair value basis. In accordance with ASC Topic 820 —Fair Value Measurements and Disclosures (“ASC 820”), the Company utilizes the market approach to measure fair value for its financial assets and liabilities. The market approach uses prices and other relevant information generated by market transactions involving identical or comparable assets, liabilities or a group of assets or liabilities, such as a business.
ASC 820 utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three broad levels. The following is a brief description of those three levels:
The following table represents the Company’s hierarchy for its financial assets and liabilities measured at fair value on a recurring basis as of September 30, 2019.
| September 30, 2019 | ||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | |||||||||||||
| Liabilities | ||||||||||||||||
| Proceeds investment agreement | $ | - | $ | - | $ | 6,417,000 | $ | 6,417,000 | ||||||||
| Secured convertible notes | $ | - | $ | - | 1,606,305 | 1,606,305 | ||||||||||
| Total | $ | - | $ | - | $ | 8,023,305 | $ | 8,023,305 | ||||||||
Going Concern Analysis.Capital Expenditures. We had no material commitments for capital expenditures at June 30, 2020.
Lease commitments.
On May 13, 2020, the Company entered into a lease agreement for new warehouse and office space which will serve as the company’s new principal executive office and primary business location. The terms of the lease include no base rent for the first six months and monthly payments ranging from $12,398 to $13,693 thereafter, with a termination date of December 2026. The Company is responsible for property taxes, utilities, insurance and its proportionate share of common area costs related to its new location. The Company took possession of the leased facilities on June 15, 2020. The remaining lease term for the Company’s office and warehouse operating lease as of June 30, 2020 was seventy-eight months. The Company’s previous office and warehouse space lease expired in April 2020 and the Company paid holdover rent for the time period until it moved to and commenced occupying the new space on June 15, 2020.
The Company entered into an operating lease with a third party in October 2019 for copiers used for office and warehouse purposes. The terms of the lease include 48 monthly payments of $1,598 with a maturity date of October 2023. The Company has the option to Purchase the equipment at maturity for its estimated fair market value at that point in time. The remaining lease term for the Company’s copier operating lease as of June 30, 2020 was 40 months.
Lease expense related to the office space and copier operating leases were recorded on a straight-line basis over their respective lease terms. Total lease expense was $252,290 for the six months ended June 30, 2020.
The discount rate implicit within the Company’s operating leases was not generally determinable and therefore the Company determined the discount rate based on its incremental borrowing rate on the information available at commencement date. As of commencement date, the operating lease liabilities reflect a weighted average discount rate of 8%.
The following sets forth the operating lease right of use assets and liabilities as of June 30, 2020:
| Assets: | ||||
| Operating lease right of use assets | $ | 769,635 | ||
| Liabilities: | ||||
| Operating lease obligations-Long-term portion | $ | 731,334 | ||
| Operating lease obligations-Current portion | $ | 44,308 | ||
| Total operating lease obligations | $ | 775,642 |
The components of lease expense were as follows for the six months ended June 30, 2020:
| Selling, general and administrative expenses | $ | 252,290 |
Following are the minimum lease payments for each year and in total.
| Year ending December 31: | ||||
| 2020 (July 1, to December 31, 2020) | $ | 21,986 | ||
| 2021 | 169,691 | |||
| 2022 | 172,666 | |||
| 2023 | 172,542 | |||
| 2024 | 159,703 | |||
| Thereafter | 310,259 | |||
| Total undiscounted minimum future lease payments | 1,006,847 | |||
| Imputed interest | (231,205 | ) | ||
| Total operating lease liability | $ | 775,642 | ||
Debt obligations is comprised of the following:
| June 30, 2020 | December 31, 2019 | |||||||
| PPP Loan | $ | 1,418,900 | $ | — | ||||
| EIDL Loan | 150,000 | — | ||||||
| 2019 secured convertible notes, at fair value | — | 1,593,809 | ||||||
| Unsecured promissory notes payable, less unamortized discount of $-0- and $66,061 at June 30, 2020 and December 31, 2019, respectively | — | 233,939 | ||||||
| Debt obligations | 1,568,900 | 1,827,748 | ||||||
| Less: current maturities of debt obligations | 552,258 | 1,827,748 | ||||||
| Debt obligations, long-term | $ | 1,016,642 | $ | — | ||||
Debt obligations mature as follows as of June 30, 2020:
June 30, 2020 | ||||
| 2020 (July 1, 2020 to December 31, 2020) | $ | 68,241 | ||
| 2021 | 948,391 | |||
| 2022 | 401,321 | |||
| 2023 | 3,166 | |||
| 2024 | 3,286 | |||
| 2025 and thereafter | 144,495 | |||
| Total | $ | 1,568,900 | ||
In accordance with ASU 2014-15,Presentation of Financial Statements- Going Concern (Subtopic 205-40) – Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern, we are required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about our ability to continue as a going concern within one year after the date that our financials are issued. When management identifies conditions or events that raise substantial doubt about their ability to continue as a going concern it should consider whether its plans to mitigate those relevant conditions or events will alleviate the substantial doubt. If conditions or events raise substantial doubt about an entity’s ability to continue as a going concern, but the substantial doubt is alleviated as a result of management’s plans, the entity should disclose information that enables user of financial statements to understand the principal events that raised the substantial doubt, management’s evaluationThe PIA obligation comprises of the significancefollowing:
June 30, 2020 | December 31, 2019 | |||||||
| Proceeds investment agreement, at fair value | $ | 3,615,000 | $ | 6,500,000 | ||||
| Less: Current portion | (3,615,000 | ) | — | |||||
| Proceeds investment agreement, at fair value - Long-term | $ | — | $ | 6,500,000 | ||||
On July 20, 2020, the Company and BKI executed a Termination Agreement and Mutual Release. Under the terms of those conditions or events,the Termination Agreement the parties agreed to terminate the PIA and management’s plans that alleviated substantial doubt aboutto release one another from any further liability under the entity’s ability PIA’s obligation. See Note 4 -- Proceeds Investment Agreement Obligation to continue as a going concern.the June 30, 2020 Financial Statements.
We performedUnder the analysisterms of the Agreement, upon payment of $1,250,000 by the Company to BKI both parties agreed to terminate the PIA and our overall assessmentto release each other from any further liability thereunder. Such $1,250,000 payment was there were conditions or events, consideredmade on July 22, 2020. In addition to the $1,250,000 payment, the Company further agreed to pay BKI the following: (a) a contingent payment in the aggregate asamount of September 30, 2019, which raised substantial doubt about our ability$2,750,000 following the closing of an asset purchase, membership interest purchase, or similar transaction between the Company and a specified third-party (the “Purchase Transaction”) and (b) any and all future proceeds received from WatchGuard and its successors and assigns by the Company for WatchGuard’s use of the ‘292 and ‘452 patents. For clarity, the parties further agreed that the payment of the contingent payment would only be due and payable upon the closing of the specified Purchase Transaction and the relevant contingent payment portion of the Agreement, and any obligations stemming therefrom, would automatically terminate if the specified Purchase Transaction is abandoned prior to continue as a going concernits closing, including its failure to close within three years from the next year, butdate of the Agreement. The specified Purchase Transaction has not yet occurred and there is no binding agreement to complete such doubt was not adequately mitigated by our plans to address the substantial doubt as disclosed in Note 1: Management’s Liquidity Plan.Purchase Transaction.
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Inflation and Seasonality
Inflation has not materially affected us during the past fiscal year. We do not believe that our business is seasonal in nature however;nature; however, we usually generate higher revenues during the second half of the calendar year than in the first half.
Potential Impacts of the COVID-19 Pandemic on Our Business and Operations
The COVID-19 pandemic represents a fluid situation that presents a wide range of potential impacts of varying durations for different global geographies, including locations where we have offices, employees, customers, vendors and other suppliers and business partners.
Like most US-based businesses, the COVID-19 pandemic and efforts to mitigate the same began to have impacts on our business in March 2020. By that time, much of our first fiscal quarter was completed. During the quarter ended June 30, 2020, we have observed recent decreases in demand from certain customers, primarily our law-enforcement and commercial customers.
Given the fact that our products are sold through a variety of distribution channels, we expect our sales will experience more volatility as a result of the changing and less predictable operational needs of many customers as a result of the COVID-19 pandemic. We are aware that many companies, including many of our suppliers and customers, are reporting or predicting negative impacts from COVID-19 on future operating results. Although we observed significant declines in demand for our products from certain customers during the three months ended June 30, 2020, we believe that it remains too early for us to know the exact impact COVID-19 will have on the long-term demand for our products. We also cannot be certain how demand may shift over time as the impacts of the COVID-19 pandemic may go through several phases of varying severity and duration.
In light of broader macro-economic risks and already known impacts on certain industries that use our products and services, we have taken and are taking targeted steps to lower our operating expenses because of the COVID-19 pandemic. We continue to monitor the impacts of COVID-19 on our operations closely and this situation could change based on a significant number of factors that are not entirely within our control and are discussed in this and other sections of this quarterly report on Form 10-Q. We do not expect there to be material changes to our assets on our balance sheet or our ability to timely account for those assets. Further, in connection with the preparation of this quarterly report on Form 10-Q and the interim financial statements contained herein, we reviewed the potential impacts of the COVID-19 pandemic on goodwill and intangible assets and have determined there to be no material impact at this time. We have also reviewed the potential impacts on future risks to the business as it relates to collections, returns and other business-related items.
To date, travel restrictions and border closures have not materially impacted our ability to obtain inventory or manufacture or deliver products or services to customers. However, if such restrictions become more severe, they could negatively impact those activities in a way that would harm our business over the long term. Travel restrictions impacting people can restrain our ability to assist our customers and distributors as well as impact our ability to develop new distribution channels, but at present we do not expect these restrictions on personal travel to be material to our business operations or financial results. We have taken steps to restrain and monitor our operating expenses and therefore we do not expect any such impacts to materially change the relationship between costs and revenues.
Like most companies, we have taken a range of actions with respect to how we operate to assure we comply with government restrictions and guidelines as well as best practices to protect the health and well-being of our employees and our ability to continue operating our business effectively. To date, we have been able to operate our business effectively using these measures and to maintain all internal controls as documented and posted. We also have not experienced challenges in maintaining business continuity and do not expect to incur material expenditures to do so. However, the impacts of COVID-19 and efforts to mitigate the same have remained unpredictable and it remains possible that challenges may arise in the future.
The actions we have taken so far during the COVID-19 pandemic include, but are not limited to:
| ● | requiring all employees who can work from home to work from home; | |
| ● | increasing our IT networking capability to best assure employees can work effectively outside the office; and | |
| ● | for employees who must perform essential functions in one of our offices: |
| ● | Having employees maintain a distance of at least six feet from other employees whenever possible; | |
| ● | Having employees work in dedicated shifts to lower the risk all employees who perform similar tasks might become infected by COVID-19; | |
| ● | Having employees stay segregated from other employees in the office with whom they require no interaction; and | |
| ● | Requiring employees to wear masks while they are in the office whenever possible. |
We currently believe revenue for the three months ended September 30, 2020 may decline year over year due to the conditions noted. In April 2020, we implemented a COVID-19 mitigation plan designed to further reduce our operating expenses for the three months ending June 30, 2020. Actions taken to date include work hour and salary reductions for senior management. These cost reductions are in addition to the significant restructuring actions we initiated in the first quarter of 2020. Based on our current cash position, our projected cash flow from operations and our cost reduction and cost containment efforts to date, we believe that we will have sufficient capital and or have access to sufficient capital through public and private equity and debt offerings to sustain operations for a period of one year following the date of this filing. If business interruptions resulting from COVID-19 were to be prolonged or expanded in scope, our business, financial condition, results of operations and cash flows would be negatively impacted. We will continue to actively monitor this situation and will implement actions necessary to maintain business continuity.
Item 3. Quantitative and Qualitative Disclosures about Market Risk.
Not Applicable.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
The Company maintains disclosure controls and procedures, as such terms are defined in Rules 13a-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”).Act. The Company, under the supervision and with the participation of its management, including its Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of such disclosure controls and procedures for this Report.quarterly report on Form 10Q. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the Company’s disclosure controls and procedures were effective as of SeptemberJune 30, 20192020 to provide reasonable assurance that material information required to be disclosed by the Company in this Reportquarterly report on Form 10Q was recorded, processed, summarized and communicated to the Company’s management as appropriate and within the time periods specified in SEC rules and forms.
Changes in Internal Control over Financial Reporting
There have not been any changes in the Company’s internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, during its last fiscal quarter that have materially affected, or are reasonably likely to materially affect its internal control over financial reporting.
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From timeThe information regarding certain legal proceedings in which we are involved as set forth in Note 9 – Commitments and Contingencies of the Notes to the Condensed Consolidated Financial Statements (Part I, Item 1 of this Quarterly Report on Form 10-Q) is incorporated by reference into this Item 1.
In addition to such legal proceedings, we are involved in various other claims and legal proceedings arising in the normal course of our businesses. At this time, we are notified that we maydo not believe any material losses under such other claims and proceedings to be a party to a lawsuit or that a claim is being made against us. It is our policy to not disclose the specifics of any claim or threatened lawsuit until the summons and complaint are actually served on us. After carefully assessing the claim, and assuming we determine that we are not at fault or we disagree with the damages or relief demanded, we vigorously defend any lawsuit filed against us. We record a liability when losses are deemed probable and reasonably estimable. When losses are deemed reasonably possible but not probable, we determine whether it is possible to provide an estimate of the amount of the loss or range of possible losses for the claim, if material for disclosure. In evaluating matters for accrual and disclosure purposes, we take into consideration factors such as our historical experience with matters of a similar nature, the specific facts and circumstances asserted, the likelihood of our prevailing, the availability of insurance, and the severity of any potential loss. We reevaluate and update accruals as matters progress over time.
probable. While the ultimate resolutionoutcome of such legal proceedings cannot be predicted with certainty, it is unknown we do not expectin the opinion of management, after consultation with legal counsel, that these lawsuits will individually, orthe final outcome in such proceedings, in the aggregate, have a material adverse effect to our results of operations, financial condition or cash flows. However, the outcome of any litigation is inherently uncertain and there can be no assurance that any expense, liability or damages that may ultimately result from the resolution of these matters will be covered by our insurance or will not be in excess of amounts recognized or provided by insurance coverage and willwould not have a material adverse effect on our operatingconsolidated financial condition, results financial conditionof operations or cash flows.
The Company owns U.S. Patent No. 9,253,452 (the “ ‘452 Patent”), which generally covers the automatic activation and coordination of multiple recording devices in response to a triggering event, such as a law enforcement officer activating the light bar on the vehicle.
The Company filed suit on January 15, 2016 in the U.S. District Court for the District of Kansas (Case No: 2:16-cv-02032) against Axon, alleging willful patent infringement against Axon’s body camera product line and Signal auto-activation product. The Company is seeking both monetary damages and a permanent injunction against Axon for infringement of the ‘452 Patent.
In addition to the infringement claims, the Company brought claims alleging that Axon conspired to keep the Company out of the marketplace by engaging in improper, unethical, and unfair competition. The amended lawsuit alleges Axon bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. The Company’s lawsuit also seeks monetary and injunctive relief, including treble damages, for these alleged violations.
Axon filed an answer, which denied the patent infringement allegations on April 1, 2016. In addition, Axon filed a motion to dismiss all allegations in the complaint on March 4, 2016 for which the Company filed an amended complaint on March 18, 2016 to address certain technical deficiencies in the pleadings. Digital amended its complaint and Axon renewed its motion to seek dismissal of the allegations that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law on April 1, 2016. Formal discovery commenced on April 12, 2016 with respect to the patent related claims. In January 2017, the Court granted Axon’s motion to dismiss the portion of the lawsuit regarding claims that it had bribed officials and otherwise conspired to secure no-bid contracts for its products in violation of both state law and federal antitrust law. On May 2, 2018, the Federal Circuit affirmed the District Court’s ruling and on October 1, 2018 the Supreme Court denied Digital Ally’s petition for review.
In December 2016 and January 2017, Axon filed two petitions forInter Partes Review (“IPR”) against the ‘452 Patent. The United States Patent and Trademark Office (“USPTO”) rejected both of Axon’s petitions. Axon is statutorily precluded from filing any more IPR petitions against the ‘452 Patent.
The District Court litigation in Kansas was temporarily stayed followingAs a smaller reporting company, we are not required to provide the filing of the petitions for IPR. However, on November 17, 2017, the Federal District Court of Kansas rejected Axon’s request to maintain the stay. Withinformation required by this significant ruling, the parties will now proceed towards trial. Since litigation has resumed, the Court has issued a claim construction order (also called aMarkmanOrder) where it sided with the Company on all disputes and denied Axon’s attempts to limit the scope of the claims. Following theMarkman Order, the Court set all remaining deadlines in the case. Fact discovery closed on October 8, 2018, and a Final Pretrial Conference took place on January 16, 2019. The parties filed motions for summary judgment on January 31, 2019.Item.
On June 17, 2019, the Court granted Axon’s motion for summary judgment that Axon did not infringe on the Company’s patent and dismissed the case. Importantly, the Court’s ruling did not find that Digital’s ‘452 Patent was invalid. It also did not address any other issue, such as whether the Company’s requested damages were appropriate, and it does not impact the Company’s ability to file additional lawsuits to hold other competitors accountable for patent infringement. This ruling solely related to an interpretation of the claims as they relate to Axon and was unrelated to the supplemental briefing the Company recently filed on its damages claim and the WatchGuard settlement. Those issues are separate and the judge’s ruling on summary judgment had nothing to do with the Company’s damages request. The Company has filed an appeal to this ruling and has asked the appellate court to reverse this decision.
The Company filed its Opening Appeal Brief on August 26, 2019 and Axon filed its Responsive Brief on November 6, 2019. The Company will file its Reply Brief responding to Axon no later than November 27, 2019.
WatchGuard
On May 27, 2016 the Company filed suit against WatchGuard, (Case No. 2:16-cv-02349-JTM-JPO) alleging patent infringement based on WatchGuard’s VISTA Wifi and 4RE In-Car product lines.
On May 13, 2019, the parties resolved the dispute and executed a settlement agreement in the form of a Release and License Agreement. The litigation has been dismissed as a result of this settlement.
The Release and License Agreement encompasses the following key terms:
Upon receipt of the $6.0 million the parties filed a joint motion to dismiss the lawsuit which the Judge granted.
PGA Tour, Inc.
On January 22, 2019 the PGA Tour, Inc. (the “PGA”) filed suit against the Company in the Federal District Court for the District of Kansas (Case No. 2:19-cv-0033-CM-KGG) alleging breach of contract and breach of implied covenant of good faith and fair dealing relative to the Web.com Tour Title Sponsor Agreement (the “Agreement”). The contract was executed on April 16, 2015 by and between the parties. Under the Agreement, Digital Ally would be a title sponsor of and receive certain naming and other rights and benefits associated with the Web.com Tour for 2015 through 2019 in exchange for Digital Ally’s payment to Tour of annual sponsorship fees.
The suit has been resolved and the case was dismissed by the PGA with prejudice on April 17, 2019.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
On August 5, 2019, in accordanceApril 17, 2020, the Company entered into a securities purchase agreement (the “Purchase Agreement”) with two accredited investors (the “Investors”) providing for the issuance of (i) the Company’s 8% Senior Secured Convertible Promissory Notes due April 16, 2021 (the “Notes”) with an aggregate principal face amount of $1,666,666, which Notes are, subject to certain conditions, convertible into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), at a Securitiesprice per share of $1.01 and (ii) five-year warrants (the “Warrants”) to purchase an aggregate of up to 1,237,624 shares of Common Stock (the “Warrant Shares”) at an exercise price of $1.31 per share, subject to customary adjustments (the “Warrants”), which Warrants are immediately exercisable upon issuance and on a cashless basis if the Warrant Shares have not been registered 180 days after the date of issuance. Pursuant to the Purchase Agreement, an aggregate of $500,000 of principal amount of the CompanyNotes and the underlying shares of Common Stock issuable upon conversion of such Notes were registered in a registered direct offering. Notes in an additional aggregate principal amount of $1,166,666 and the Warrants were issued to accredited investorsthe Investors in a concurrent private placement (the “Private Placement”).
The offers and sales of the Notes and Warrant Shares were made pursuant to an exemption from the registration requirements of the Securities Act provided inby Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, (1) $1,624,457.78 in principal amount of 8% secured convertible notes with a conversion price1933, as amended, including pursuant to Rule 506 thereunder. Such offers and sales were made solely to “accredited investors” under Rule 506 and were made without any form of $1.40 per share, (2) the shares of common stock issuable from time to time upon conversion of such convertible notes, and (3) the 571,428 common shares underlying the common stock purchase warrants. The Company did not engage in general solicitation or advertisingand with regardfull access to any information requested by the issuance and sale ofinvestor regarding the securities. The Investors represented that they were accredited investors and purchasedCompany or the securities for investment and not with a view to distribution. The Company paid no commission or compensation to any third partyoffered in connection with the placement.Private Placement.
Item 3. Defaults upon Senior Securities.
Not applicable.
Item 4. Mine Safety Disclosures.
Not applicable.
Not applicable.
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(a) Exhibits.
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Pursuant to the requirements 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.
Date:November 14, 2019August 13, 2020
DIGITAL ALLY, INC., a Nevada corporation | ||
| /s/Stanton E. Ross | ||
| Name: | Stanton E. Ross | |
| Title: | President and Chief Executive Officer | |
| /s/Thomas J. Heckman | ||
| Name: | Thomas J. Heckman | |
| Title: | Chief Financial Officer, Secretary, Treasurer and Principal Accounting Officer | |
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