As filed with the Securities and Exchange Commission on October 11, 2019
Registration No. 333-232020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DRONE AVIATION HOLDING CORP.
(Exact name of registrant as specified in its charter)
| Nevada | 3721 | 46-5538504 | ||
|
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
11651 Central Parkway, #118
Jacksonville, Florida 32224
(904) 834-4400
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Daniyel Erdberg
Chief Executive Officer
Drone Aviation Holding Corp.
11651 Central Parkway, #118
Jacksonville, Florida 32224
(904) 834-4400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
|
Laura Anthony, Esq. Craig D. Linder, Esq. Anthony L.G., PLLC 625 N. Flagler Drive, Suite 600 West Palm Beach, Florida 33401 Telephone: (561) 514-0936 |
Barry I. Grossman, Esq. Sarah E. Williams, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 Telephone: (212) 370-1300 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on the Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |
| 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 to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee | ||||||
| Units(2) | $ | 11,500,000 | $ | 1,492.70 | ||||
| Common stock, par value $0.0001 per share, included in the units | — | (4) | — | (4) | ||||
| Warrants to purchase common stock, par value $0.0001 per share, included in the units | — | (4) | — | (4) | ||||
| Common stock, par value $0.0001 per share, underlying the warrants included in the units(3) | $ | 13,800,000 | $ | 1,791.24 | ||||
| TOTAL | $ | 25,300,000 | $ | 3,283.94 | (5) | |||
| (1) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended. |
| (2) | Each unit consists of one share of common stock, par value $0.0001 per share and one warrant to purchase one share of common stock, par value $0.0001 per share. Includes 180,722 shares of common stock and/or warrants to purchase 180,722 shares of common stock, which may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any. |
| (3) | The warrants are exercisable at a per share exercise price equal to 120% of the public offering price per share of common stock. The proposed maximum aggregate public offering price of the shares of common stock issuable upon exercise of the warrants was calculated to be $13,800,000 (which is 120% of $11,500,000 since each investor will receive a warrant to purchase one share of common stock for each share of common stock purchased in this offering). Pursuant to Rule 416, the registrant is also registering an indeterminate number of additional shares of common stock that are issuable by reason of the anti-dilution provisions of the warrants. |
| (4) | Included in the price of the units. No fee required pursuant to Rule 457(g) under the Securities Act. |
| (5) | $606.00 has already been paid. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to Section 8(a) may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
| PRELIMINARY PROSPECTUS | SUBJECT TO COMPLETION | DATED OCTOBER 11, 2019 |
1,204,819 Units
Each Unit Consisting of
One share of Common Stock (par value $0.0001)
And
One Warrant to Purchase One Share of Common Stock
This is a firm commitment public offering of 1,204,819 units of Drone Aviation Holding Corp., a Nevada corporation, at an assumed public offering price of $8.30 per unit. The actual number of units we will offer will be determined based on the actual public offering price. Each unit consists of one share of our common stock, par value $0.0001 per share, and one warrant to purchase one share of our common stock, par value $0.0001 per share, at an exercise price per share of $9.96 based on the assumed public offering price (120% of the public offering price of one unit in this offering). The warrants will expire on the five year anniversary of the initial exercise date. The shares of our common stock and the warrants are immediately separable and will be issued and tradeable separately, but will be purchased together as a unit in this offering. The offering also includes the shares of common stock issuable from time to time upon exercise of the warrants.
Our common stock is presently quoted on the OTCQB under the symbol “DRNE”. At present, there is a very limited market for our common stock. On October 9, 2019, the last reported sale price for our common stock on the OTCQB was $8.30 ($0.83 pre-reverse split) per share. Quotes of stock trading prices on an over-the-counter marketplace may not be indicative of the market price on a national securities exchange. Prior to this offering, there has been no public market for our warrants on the OTC Markets or any other trading market. We have applied to list our common stock and warrants on The NASDAQ Capital Market under the symbols “DRNE” and “DRNEW,” respectively. The approval of our listing on the NASDAQ Capital Market is a condition of closing this offering.
On June 5, 2019, our board of directors and stockholders holding a majority of our outstanding voting power, approved resolutions authorizing a reverse stock split of the outstanding shares of our common stock in the range from one-for-five (1-for-5) to one-for-ten (1-for-10), which ratio will be selected by the board of directors. The board of directors will set the ratio of the reverse stock split, and the reverse stock split will become effective following approval by FINRA of the reverse stock split, prior to the effective date of the registration statement (of which this prospectus forms a part). The reverse stock split is intended to allow us to meet the minimum share price requirement of the NASDAQ Capital Market.
Except as otherwise indicated and except in our financial statements and the notes thereto, all references to our common stock, share data, per share data and related information depict an assumed reverse stock split ratio of 1-for-10 (“Reverse Stock Split”) until final determination by the board of directors as if it was effective and as if it had occurred at the beginning of the earliest period presented. The Reverse Stock Split, when effective, will combine each ten shares of our outstanding common stock into one share of common stock, without any change in the par value per share, and the Reverse Stock Split correspondingly will adjust, among other things, the exercise rate of our warrants and options into our common stock. No fractional shares will be issued in connection with the Reverse Stock Split, and any fractional shares resulting from the Reverse Stock Split will be rounded up to the nearest whole share.
Persons effecting transactions in these securities should confirm the registration of these securities under the securities laws of the states in which transactions occur or the existence of applicable exemptions from such registration.
THE SECURITIES BEING OFFERED ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK. THEY SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. SEE “RISK FACTORS” BEGINNING ON PAGE 19 OF THIS PROSPECTUS FOR A DISCUSSION OF INFORMATION THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN OUR SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
| Per Unit | Total | |||||||
| Public offering price (1) | $ | $ | ||||||
| Underwriting discounts and commissions (2) | $ | $ | ||||||
| Proceeds, before expenses, to us (3) | $ | $ | ||||||
| (1) | The public offering price and underwriting discount and commissions in respect of each unit correspond to a public offering price per share of common stock of $____ ($____ pre-reverse split) and a public offering price per accompanying warrant of $___ ($____ pre-reverse split). |
| (2) | See “Underwriting” beginning on page 76 for disclosure regarding compensation payable to the underwriters by us. |
| (3) | We estimate the total expenses of this offering will be approximately $459,284. Assumes no exercise of the over-allotment option we have granted to the underwriters as described below. |
We have granted Roth Capital Partners and Aegis Capital Corp., as representatives of the underwriters, an option for a period of 45 days from the date of this prospectus to purchase up to an additional 180,722 shares of common stock and/or warrants to purchase 180,722 shares of common stock at the public offering price less the underwriting discount and commissions solely to cover over-allotments, if any.
The underwriters expect to deliver our securities to purchasers in the offering on or about __________, 2019.
| Co-Book-Running Manager | Co-Book-Running Manager |
| Roth Capital Partners | Aegis Capital Corp. |
The date of this prospectus is ____________, 2019
TABLE OF CONTENTS
No dealer, salesperson or other individual has been authorized to give any information or to make any representation other than those contained in this prospectus in connection with the offer made by this prospectus and, if given or made, such information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make such offer or solicitation. Neither the delivery of this prospectus nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in our affairs or that information contained herein is correct as of any time subsequent to the date hereof.
For investors outside the United States: We have not done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves, and observe any restrictions relating to, the offering of the shares of our common stock and the distribution of this prospectus outside the United States.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes “forward-looking statements” within the meaning of the federal securities laws that involve risks and uncertainties. Forward-looking statements include statements we make concerning our plans, objectives, goals, strategies, future events, future revenues or performance, capital expenditures, financing needs and other information that is not historical information. Some forward-looking statements appear under the headings “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business.” When used in this prospectus, the words “estimates,” “expects,” “anticipates,” “projects,” “forecasts,” “plans,” “intends,” “believes,” “foresees,” “seeks,” “likely,” “may,” “might,” “will,” “should,” “goal,” “target” or “intends” and variations of these words or similar expressions (or the negative versions of any such words) are intended to identify forward-looking statements. All forward-looking statements are based upon information available to us on the date of this prospectus.
These forward-looking statements are subject to risks, uncertainties and other factors, many of which are outside of our control, that could cause actual results to differ materially from the results discussed in the forward-looking statements, including, among other things, the matters discussed in this prospectus in the sections captioned “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business.” Some of the factors that we believe could affect our results include:
| ● | limitations on our ability to continue operations and implement our business plan; |
| ● | our history of operating losses; |
| ● | the timing of and our ability to obtain financing on acceptable terms; |
| ● | the effects of changing economic conditions; |
| ● | the loss of members of the management team or other key personnel; |
| ● | competition from larger, more established companies with greater economic resources than we have; |
| ● | costs and other effects of legal and administrative proceedings, settlements, investigations and claims, which may not be covered by insurance; |
| ● | costs and damages relating to pending and future litigation; |
| ● | the impact of additional legal and regulatory interpretations and rulemaking and our success in taking action to mitigate such impacts; |
| ● | control by our principal equity holders; and |
| ● | the other factors set forth herein, including those set forth under “Risk Factors.” |
There are likely other factors that could cause our actual results to differ materially from the results referred to in the forward-looking statements. Forward-looking statements should not be read as a guarantee of future performance or results and will not necessarily be accurate indications of whether, or the times by which, our performance or results may be achieved. Forward-looking statements are based on information available at the time those statements are made and management’s belief as of that time with respect to future events and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. All forward-looking statements attributable to us in this prospectus apply only as of the date of this prospectus and are expressly qualified in their entirety by the cautionary statements included in this prospectus. We undertake no obligation to publicly update or revise forward-looking statements to reflect events or circumstances after the date made or to reflect the occurrence of unanticipated events, except as required by law.
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We are responsible for the disclosure in this prospectus. However, this prospectus includes industry data that we obtained from internal surveys, market research, publicly available information and industry publications. The market research, publicly available information and industry publications that we use generally state that the information contained therein has been obtained from sources believed to be reliable. The information therein represents the most recently available data from the relevant sources and publications and we believe remains reliable. We did not fund and are not otherwise affiliated with any of the sources cited in this prospectus. Forward-looking information obtained from these sources is subject to the same qualifications and additional uncertainties regarding the other forward-looking statements in this prospectus.
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This summary highlights material information concerning our business and this offering. This summary does not contain all of the information that you should consider before making your investment decision. You should carefully read the entire prospectus and the information incorporated by reference into this prospectus, including the information presented under the section entitled “Risk Factors” and the financial data and related notes, before making an investment decision. This summary contains forward-looking statements that involve risks and uncertainties. Our actual results may differ significantly from future results contemplated in the forward-looking statements as a result of factors such as those set forth in “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements.” Unless otherwise indicated, except for our financial statements and the notes thereto, all references to our common stock, share data, per share data and related information depict as if the Reverse Stock Split was effective.
In this prospectus, unless the context indicates otherwise, “DRNE,” the “Company,” “we,” “our,” “ours” or “us” refer to Drone Aviation Holding Corp., a Nevada corporation, and its subsidiaries.
Business Overview
We design, develop, market, sell and provide logistical services for specialized tethered aerial monitoring and communications platforms serving national defense and security customers for use in applications including intelligence, surveillance and reconnaissance (“ISR”) and communications. We focus primarily on the development of a tethered aerostat known as the Winch Aerostat Small Platform (“WASP”) which is principally designed for military and security applications where they can provide secure and reliable aerial monitoring for extended durations while being tethered to the ground via a high strength armored tether.
We have steadfastly pursued a vision that rapid, persistent, mobile access to altitude is a force multiplier for military and national security operations. Our unique WASP technology fills what we believe to be significant gaps in the marketplace between the expensive military drones and large, non-mobile aerostat systems.
As a result of recent capital contributions from a select group of management and non-management investors and the elimination of a majority of our outstanding debt, we believe we are better able to position our business to seize opportunities that lay ahead. This investment also allowed us to provide much-needed increased production capacity, through a strategic relationship with an established ISO 9001-certified manufacturer and new production in Florida through the lease of an additional facility.
Highlighted by a $3.8 million WASP award, followed by $1.1 million award for WASP Lite systems and a recent contract valued at approximately $1.7 million gross revenue from the prime contractor as a follow-on to the $3.8 million contract awarded in December 2018, we have announced in excess of approximately $6.6 million gross revenue in new business in the first six months of 2019. Assuming receipt of this revenue, this will represent a 144% increase over the approximately $2.7 million gross revenue reported the entire twelve months of 2018. These awards support our belief that the WASP is well positioned to address the challenges facing tier-one end users, including the U.S. Department of Defense and the Department of Homeland Security.
For the fiscal years ended December 31, 2018 and 2017, we generated revenues of $2,722,713 and $562,078, respectively; and reported net losses of $8,475,313 and $10,323,992, respectively, and negative cash flow from operating activities of $2,387,731 and $3,326,022, respectively. For the six months ended June 30, 2019, we generated revenues of $1,380,497; and reported net losses of $1,049,360, and negative cash flow from operating activities of $3,465,878. As noted in our consolidated financial statements, we had an accumulated deficit of approximately $39,521,450 and recurring losses from operations through June 30, 2019 and a modest income of $53,814 for the quarter ended June 30, 2019. See “Risk Factors” – “We incurred a net loss in in the first six months of 2019 and the fiscal years of 2018 and 2017 with negative cash flows and we cannot assure you as to when, or if, we will become profitable and generate positive cash flows.”
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Organization
Drone Aviation Holding Corp. has two wholly owned subsidiaries: Lighter Than Air Systems Corp. (“LTAS”) and Drone AFS Corp. (“AFS”). Drone Aviation Holding Corp. was incorporated in Nevada on April 17, 2014, as a wholly owned subsidiary of MacroSolve, Inc., an Oklahoma corporation (“MacroSolve”), and effective April 30, 2014, in order to consolidate our operations into an entity incorporated in Nevada, MacroSolve merged with and into us. On June 3, 2014, we acquired Drone Aviation Corp. through a share exchange transaction, and on March 26, 2015, Drone Aviation Corp. merged with and into us. As a result of the share exchange and merger with Drone Aviation Corp., we acquired Drone Aviation Corp.’s subsidiary, LTAS. AFS became our subsidiary upon its formation on July 9, 2015.
Products
WASP TACTICAL AEROSTATS
The Company’s core aerostat products are designed to provide real-time, semi-persistent situational awareness to various military and national security customers such as the Department of Defense (DoD) and units of the Department of Homeland Security (DHS) such as the Customs and Border Protection (CBP) to improve security at the nation’s ports and borders. The WASP tethered aerostat system provides customers with tactical, highly mobile and cost-effective aerial monitoring and communications capabilities in remote or austere locations where existing infrastructure is lacking or not accessible. Current WASP products include the WASP tactical aerostat and WASP Lite, a rapidly deployable, compact aerostat system. WASP aerostats are either self-contained on a trailer that can be towed by a military all-terrain vehicle, or “MATV,” or mine resistant ambush protected vehicle (“MRAP”) or other standard vehicle, operated from the bed of a pickup truck, UTV or mounted to a building rooftop. They are designed to provide semi-persistent, mobile, real-time day/night high definition video for intelligence, surveillance and reconnaissance (ISR), detection of improvised explosive devices, border security and other governmental and civilian uses. We believe that all our products can also be utilized for disaster response missions by supporting two-way and cellular communications and acting as a repeater or provider of wireless networking.
Both the WASP and WASP Lite aerostat systems employ a tethered envelope filled with helium gas for lift and carry either a stabilized ISR or communications payload, portable ground control station and a datalink between the ground station and the envelope. Hovering between 500 and 1,500 feet above the ground, the systems provide surveillance, communications and communications capabilities with relatively low acquisition and operating costs. The systems require an operational crew of a minimum of two personnel, relatively simple maintenance procedures, and feature quick retrieval and helium top-off for re-inflation.
| ● | The WASP is a mobile, tactical-sized aerostat capable of carrying a variety of payloads in support of military operations helping troops in the field gain a tactical edge while communicating over greater distances. The WASP leverages aerostat technology to elevate network payloads up to 130 pounds to an advantaged height of up to 1,500 feet, to enable persistent network connectivity while reducing risk to units conducting missions. U.S. Army WASP tactical aerostats previously acquired from us have successfully completed a number of field tests and exercises including the U.S. Department of Defense (“DoD”) CyberQuest, Enterprise Challenge, Storm Force, and various Army Network Integration Evaluations (NIE), which allows the U.S. Government to evaluate, among other things, the WASP’s ability to provide secure communications and capture and relay real-time, high definition video to various handheld devices, tablet computers and other deployed systems. In October 2016, we were awarded contracts from a prime contractor to provide a U.S. Military customer with integrated advanced communication solutions and optical payloads into their WASP aerostats which were delivered in March 2017. In October 2017, we received an award in excess of $800,000 gross revenue from a prime contractor for a multi-mission capable WASP, including secure voice and data network range extension, from an existing DoD customer, which was delivered in February 2018. In March 2018, we received our largest single DoD contract award to date for approximately $1.7 million gross revenue from a prime contractor for a multi-mission capable tactical WASP. The March 2018 order, which was delivered in October 2018, was the third repeat order awarded to us for WASP as the result of a growing number of successful international military deployments. In July 2018, we entered into an exclusive teaming agreement with a U.S. Government prime contractor which is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security (“DHS”), Customs and Border Protection (“CBP”). In December 2018, the prime contractor awarded us a subcontract valued at approximately $3.8 million gross revenue for six WASP aerostat systems, which award was announced in January 2019. These WASP powered surveillance systems are expected to be deployed at a CBP Border Patrol Sector on the southern border of the United States beginning in September 2019. There are 20 Border Patrol Sectors along U.S. borders, 9 of which are located along the U.S. Southern border. We have begun production of the initial units at our facilities in Florida and at our ISO 9001-certified manufacturing strategic partner’s facility. Deliveries began late in the second quarter of 2019 and will continue throughout 2019. In June 2019, we were awarded a contract valued at approximately $1.7 million gross revenue from the prime contractor as a follow-on to the $3.8 million gross revenue contract such prime contractor awarded us in December 2018. We are working closely with the prime contractor to explore additional product and services opportunities in DHS and CBP under our exclusive teaming agreement. |
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| ● | The WASP Lite is a recently developed system that utilizes the proven fieldability of our larger WASP aerostat system incorporated into a small footprint design. It is a compact, non-trailer based, cost effective aerostat system that is highly mobile and can be setup and deployed virtually anywhere from the bed of a pickup truck to a rooftop while anchored or moored. WASP Lite can move while deployed up to 40 mph and supports a wide range of lighter payloads including ISR, communications, and signal intelligence (SIGINT). In May 2019, the U.S. Army selected Drone Aviation’s enhanced WASP Lite Aerostat System for multi-unit award valued at approximately $1.1 million gross revenue. Deliveries under this award commenced in July 2019. |
Market and Product Strengths
The demand for our lighter-than-air (LTA) advanced tethered aerostats and tethered drones has grown significantly over the last several years driven by the increasing need for aerial-based, real-time situational awareness by the military and those responsible for national security operations. Also contributing to the growth in aerial monitoring is technology advances in visual monitoring and communications payloads such as electro-optical camera systems and waveform radios which are delivering enhanced capabilities in smaller, lighter packages.
In terms of the military market, in response to the changing nature of modern warfare, ground forces today are smaller and nimbler. Most importantly, these units are now becoming interlinked in a “networked battlefield” whereby information collected from a growing number of sensors – satellites, manned aircraft and drones and soldiers on the ground - are all aggregated and shared in real-time.
In line with the 2020 U.S. Defense Budget Request, “Army modernization is essential to build a more lethal force foundational for the Joint Force” which states modernization of the Army Network as one of six priorities. The Army Network is defined in the budget request as “a tactical communications network that enables the Army to fight cohesively in any environment where the electromagnetic spectrum is denied or degraded. The network includes electronic warfare; information technology; and assured position, navigation, and timing systems and software with a low signature.” Further evidence of this commitment can be seen through various technology integration and evaluation programs like the Army’s Enterprise Challenge and Network Integration Evaluations (NIEs). Through these programs, the Army is seeking innovative ways to collect, aggregate and disseminate critical information and data across the battlefield.
In national security operations, specifically, those conducted by the DHS and in-line with the priorities stated by the President of the United States and current administration in Washington, border security is a critical area for investment. Based upon news reports and statements directly from the DHS and CBP, the situation at the southern border of the U.S. and Mexico is in crisis as surging border crossings of immigrants and increasing levels of illegal activities such as drug traffic are surpassing available security resources.
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The challenges faced by the CBP are many since the southern border with Mexico stretches over 1,950 miles from California to Texas, most of which is a barren, austere environment dominated by rough and dusty terrain and is subject to high heat and windy conditions. Currently, CBP monitoring of the border is conducted by agents on foot, on horses, in vehicles, planes, helicopters, and boats. Aerial surveillance on the border is currently conducted via helicopters, aircraft, and drones, however, these platforms are limited due to a lack of persistence and costly operation. Additionally, the CBP operates a network of large aerostats– Tethered Aerostat Radar System (TARS), Persistent Threat Detection System (PTDS), and Persistent Ground Surveillance Systems (PGSS) – however, these systems are limited due to their large size, cost and fixed installation requirements, leaving vast border areas unmonitored.
To address the situation, the U.S. government has allocated significant resources and DHS budget to increase manpower and improve border security via fencing and the adoption of “smart wall technology” including aerial monitoring as well as communications and sensors.
The potential markets for our systems on a stand-alone basis and/or combined with other payloads relates to the following applications, among others:
Governmental Markets:
| ● | International, federal, state and local governments and agencies thereof, including DoD, U.S. Drug Enforcement Agency, U.S. Homeland Security, U.S. Customs and Border Protection, U.S. Environmental Protection Agency, U.S. Department of State, U.S. Federal Emergency Management Agency, U.S. and state Departments of Transportation, penitentiaries, and police forces; |
| ● | Military, including the Army, Marines, National Guard, Navy and U.S. Air Force installations; |
| ● | Intelligence community, including the United States Special Operations Forces; |
| ● | Border security monitoring, including U.S. Homeland Security, to deter and detect illegal entry; |
| ● | Drug enforcement along U.S. borders; |
| ● | Monitoring environmental pollution and sampling air emissions; and |
| ● | Vehicle traffic monitoring by state and local law enforcement agencies. |
Commercial Markets:
| ● | TV and media production mobile communications systems, expanding on-site reporting capabilities to include aerial videography and photography; |
| ● | Agriculture monitoring, including monitoring crop health and fields monitoring to reduce costs and increase yields; |
| ● | Security for large events, including crowd management; |
| ● | Natural disaster instant infrastructure to support first responders; |
| ● | Oil pipeline monitoring and exploration; and |
| ● | Atmospheric and climate research. |
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Distribution
We primarily sell our products through distribution agreements with firms such as Atlantic Diving Supply, Inc. (ADS, Inc.), a leading value-added logistics and supply chain solutions provider that serves the U.S. military, federal, state and local government organizations, law enforcement agencies, first responders, partner nations and the defense industry. In addition, we sell our products through several prime contractors and our products are included in the U.S. Government’s GSA Schedule, which allows government customers to directly negotiate and acquire products and services from commercially listed suppliers.
Competition and Market Advantage
We believe the current market competitors to the WASP aerostat system include a large number of companies ranging from small “mom and pop” tethered aerostat and balloon companies to large defense contractors, including TCOM, Raytheon, Lockheed Martin, ISL, ILC Dover, Compass Systems, Raven Aerostar, Carolina Unmanned Vehicles, American Blimp Corporation, and RT Aerostat Systems, Inc., the American subsidiary of Israeli aerostat company RT LTA. We believe there are numerous commercial drone companies, such as DJI and Parrot, offering free flying drones for pleasure and commercial use, as well as many larger drone manufactures, such as Northrop Grumman, AeroVironment, Inc. and Boeing, offering military grade free flying drones to the U.S. Government, which could compete with the WASP. There are fewer commercial grade tethered drone competitors for our WATT tethered drone system that remain tethered to the ground via a high strength armored tether, including Aria Insights (formerly Cyphy Works Inc.) located in Danvers, MA, Elistair located in Lyon, France, Hoverfly Technologies, Inc. located in Orlando, Florida, and Skysapience located in Yokneam, Israel.
Many of our LTA aerostat competitors have received considerable funding from government or government-related sources to develop and build LTA aerostats. Most of these organizations and many of our other competitors have greater financial, technical, manufacturing, marketing and sales resources and capabilities than we do. We anticipate increasing competition as a result of defense industry consolidation, which has enabled companies to enhance their competitive position and ability to compete against us. In addition, other companies may introduce competing aerostats or solutions based on alternative technologies that may adversely affect our competitive position. As a result, our products may become less or non-competitive or obsolete. For further discussion of certain risks relating to competition, see “Risk Factors” of this prospectus.
We believe that the principal competitive factors in the markets for the Company’s tethered systems, specifically, aerostats, include product performance, features, acquisition cost, lifetime operating cost, including maintenance and support, ease of use, integration with existing equipment, size, mobility, quality, reliability, customer support, brand and reputation.
Our proprietary and recently patented tethering technology, in particular, our tension control winch system, is an important competitive differentiator in the market. The winch systems utilized in our products have undergone extensive testing and continued refinement through coordination with customers, including the U.S. Army. To date, our products have been purchased through our prime contractors by a number of key customers including the U.S. Army and DHS/CBP.
Our products provide critical observation and communication capabilities serving the increased demand for ISR and communications, including real-time tactical reconnaissance, tracking, combat assessment and geographic data, while reducing the risks to our troops in theatre. Finally, in a highly constrained fiscal environment, we believe the typically lower acquisition and use/maintenance costs of LTA advanced aerostats make them more appealing compared to their heavier than air manned or larger LTA unmanned system alternatives.
Technology, Research and Development
We conduct the development, commercialization and manufacturing of our products in-house at our facilities in Jacksonville and Holly Hill, Florida.
Our research and development efforts are largely focused on the LTA aerostat systems, including developing miniature WASP systems and the management and recovery of helium gas, software development, electronic energy systems, and electronic data transmission systems. We have developed an aerostat system called WASP LITE for use in commercial or governmental applications which do not require the same level of durability and ruggedness as the WASP, and we continue to work on different models with different payloads for various applications.
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For the six months ended June 30, 2019 and for the years ended December 31, 2018 and 2017, we spent $53,971, $107,015 and $351,768, respectively, on research and development activities. Research and development expenditures are not borne directly by customers nor are the costs accounted for in our pricing models. Throughout the remainder of 2019, we do not anticipate significant increases in research and development expenses from levels reported in 2018 as we focus activities on continual, incremental improvement to the WASP platform in order to increase its features and capabilities.
Strategic Partners
We are party to several agreements with strategic partners and distributors to assist us with the marketing and sales of various products, as we currently have limited in-house sales capabilities. Current relationships include:
| ● | A sales and distribution working relationship with U.S. government prime contractor ADS Inc.; and |
| ● | An exclusive teaming agreement with a non-affiliate U.S. government prime contractor that is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security, Customs and Border Protection. |
Intellectual Property
On September 18 and 19, 2014, we filed provisional patent application numbers “62/052,289” and “62/052,946” entitled “Tethered Portable Aerial Media broadcast System” based on the tethered drone system. On September 18, 2015, we filed a utility patent application claiming a priority date of the two provisional patent applications and having application Serial Number “14858467” entitled “Apparatus and Methods for Tethered Aerial Platform and System.” On July 7, 2015, we filed a provisional patent application number “62/189,341” entitled “Apparatus, Methods and System for Tethered Aerial Platform.” On September 20, 2016, the United States Patent and Trademark Office (“USPTO”) issued patent number 9,446,858 entitled “Apparatus and methods for tethered aerial platform and system.” This new patent on our electric tethered aerial platform (“ETAP”) technologies covers the core systems currently incorporated into the WATT and BOLT products.
On December 5, 2016, we filed provisional patent application number “62/430,195” entitled “Converting an Onboard Battery Powered Drone to a Ground Powered Tethered Drone”. On December 5, 2017, we filed a non-provisional patent application number “15/832,209” entitled “System for Converting a Safeguarded Free Flight Onboard Battery-Powered Drone to a Ground-Powered Tethered Drone”. On August 26, 2019, we received a Notice of Allowance and are currently awaiting the issuance and the patent.
On April 19, 2016, we filed an application for registration of the trademark “Taming Altitude”. On August 7, 2018, the USPTO issued trademark number 5,532,648 entitled “Taming Altitude”.
In addition, the Company’s intellectual property portfolio includes an exclusive commercial license to vision-based navigation and advanced autonomous flight management software that it acquired in 2015 and exclusive commercial licenses to a number of unmanned vehicle technologies developed by Georgia Tech Research Corporation, including “GUST” (Georgia Tech UAV Simulation Tool) autopilot system.
Our success and ability to compete depends in part on our ability to develop and maintain our intellectual property and proprietary technology and to operate without infringing on the proprietary rights of others. As we continue the development of our aerial products, we expect that we will rely on patents, trade secrets, copyrights, trademarks, non-disclosure agreements and other contractual provisions. We have also registered the trademark “Blimp in a Box.” In certain cases, when appropriate, we opt to protect our intellectual property through trade secrets as opposed to filing for patent protection in order to preserve confidentiality. All of our employees are subject to non-disclosure agreements and other contractual provisions to establish and maintain our proprietary rights. For further discussion of risks relating to intellectual property, see “Risk Factors” of this prospectus. For further discussion about the intellectual property rights and licenses and minimum royalties, see Note 14 – Commitments and Contingencies in the notes to 2018 audited financial statements.
Dependence on a Few Customers and Regulatory Matters
We believe there is a large, growing market for our tethered aerial products, but anticipate that the majority of our revenue will be derived from our LTA aerostat products sales, at least in the foreseeable future, which will come from U.S. Government and Government-related entities, including the DHS and other departments and agencies. Government programs that we may seek to participate in compete with other programs for consideration during Congress’s budget and appropriations hearings and may be affected by changes not only in political power and appointments, but also general economic conditions and other factors beyond our control. Reductions, extensions or terminations in a program that we are seeking to participate in or overall defense spending or delays in Government funding such as occurred in late December 2018 which shutdown certain departments and agencies, could adversely affect our ability to generate revenues and realize any profits. We cannot predict whether potential changes in security, defense and intelligence priorities will afford opportunities for our business in terms of research and development or product contracts, but any reduction in government spending on such programs could negatively impact our ability to generate revenues.
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We have registered as a contractor with the U.S. Government and are required to comply with and will be affected by laws and regulations relating to the award, administration and performance of U.S. Government contracts. Government contract laws and regulations affect how we will do business with customers, and in some instances, will impose added costs on our business. A violation of specific laws and regulations could result in the imposition of fines and penalties, the termination of any then existing contracts, or the inability to bid on future contracts. For further discussion of the risks relating to U.S. Government contracts and FAA rules and regulations, see “Risk Factors” of this prospectus.
During fiscal years ended 2018 and 2017, we received a substantial portion of our revenues from a limited number of customers, and the loss of, or a significant reduction in usage by, one or more of our major customers would result in lower revenues. For further discussion about our dependence on a few major customers see Note 15 – Concentrations in the notes to the 2018 audited financial statements.
International sales of our products may also be subject to U.S. laws, regulations and policies like the U.S. Department of State restrictions on the transfer of technology, International Traffic in Arms Regulations (“ITAR”) and other export laws and regulations and may be subject to first obtaining licenses, clearances or authorizations from various regulatory entities. Although we are not currently pursuing international sales, we may deploy working capital towards expansion into foreign markets. This may limit our ability to sell our products abroad and the failure to comply with any of these regulations could adversely affect our ability to conduct business and generate revenues as well as increase our operating costs. Our products may also be subject to regulation by the National Telecommunications and Information Administration and the Federal Communications Commission, which regulate wireless communications.
Sources and Availability of Components
Certain materials and equipment for our products are custom made for those products and are available only from a limited number of suppliers. Failure of a supplier could cause delays in delivery of the products if another supplier cannot promptly be found or if the quality of such replacement supplier’s components is inferior or unacceptable. For further discussion of the risks relating to sources and availability of components, see “Risk Factors” of this prospectus.
Corporate History
Drone Aviation Holding Corp. was incorporated in Nevada on April 17, 2014, as a wholly owned subsidiary of MacroSolve, Inc., an Oklahoma corporation (“MacroSolve”), and effective April 30, 2014, in order to consolidate our operations into an entity incorporated in Nevada, MacroSolve merged with and into us. On June 3, 2014, we acquired Drone Aviation Corp. through a share exchange transaction, and on March 26, 2015, Drone Aviation Corp. merged with and into us. As a result of the share exchange and merger with Drone Aviation Corp., we acquired Drone Aviation Corp.’s subsidiary, LTAS. AFS became our subsidiary upon its formation on July 9, 2015.
Our authorized capital stock consists of 400,000,000 shares, of which 300,000,000 are shares of common stock, $0.0001 par value per share, and 100,000,000 are shares of preferred stock, $0.0001 par value per share. As of October 11, 2019, there were 2,755,613 (27,556,121 pre-reverse split) shares of common stock outstanding and no shares of preferred stock outstanding.
The Board of Directors and shareholders holding a majority of the Company’s voting capital approved and adopted the 2015 Equity Incentive Plan (the “2015 Plan”) on September 4, 2015 and October 1, 2015, respectively. At the annual shareholder meeting on December 6, 2016, shareholder’s approved the 2015 Plan and an amendment to the plan to (i) increase the number of shares of our common stock with may be granted under the plan from 25,000 (250,000 pre-reverse split) to 88,300 (883,000 pre-reverse split) and (ii) reduce the automatic increase in the Share Limit provided for in Section 7.1.(b) of the 2015 Plan from 20% to 10% with such amount rounded down to the nearest 100 (1,000 pre-reverse split) shares.
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On October 29, 2015, we effected a 1-for-40 reverse stock split of our issued and outstanding common stock. As a result of the reverse stock split, every 40 shares of our pre-reverse split common stock was combined and reclassified into one share of our common stock, and fractional shares were rounded up to the next highest number of whole shares of our common stock.
On September 29, 2016, the Company issued a convertible promissory note (the “Convertible Promissory Notes Series 2016”) which was due October 1, 2017 in the aggregate principal amount of $3,000,000 in a private placement to the former Chairman of the Board and the Chairman of the Strategic Advisory Board of the Company, both of whom are greater than 10% shareholders of the Company. On December 21, 2018, the Company issued 617,742 (6,177,411 pre-reverse split) shares of common stock to the note holders in full settlement of the $3,000,000 principal balance and $88,705 accrued interest.
During the year ended December 31, 2016, the Company issued a net total of 355,664 (3,556,635 pre-reverse split) shares of common stock as follows:
| (a) | On January 12, 2016, the Company issued 250 (2,500 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,000 shares of Series A preferred stock. |
| (b) | On January 12, 2016, the Company issued 18,347 (183,468 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 73,387 shares of Series C preferred stock. |
| (c) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series D preferred stock. |
| (d) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,999,998 shares of Series F preferred stock. |
| (e) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series G preferred stock. |
| (f) | On April 27, 2016, the Company issued 10,000 (100,000 pre-reverse split) shares of common stock to Lt. Gen. Michael T. Flynn, a newly appointed director. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. General Flynn forfeited 6,667 (66,667 pre-reverse split) unvested shares and disclaimed 3,333 (33,333 pre-reverse split) vested shares. |
| (g) | On April 27, 2016, the Company issued an aggregate of 115,000 (1,150,000 pre-reverse split) shares of common stock to Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, and Kevin Hess pursuant to stock award agreements. |
| (h) | On May 2, 2016, the Company issued 15,000 (150,000 pre-reverse split) shares of common stock to Strategic Advisory Board members, Dr. Philip Frost and Steven Rubin, for 12 months of services. |
| (i) | On June 3, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock to Adaptive Flight Inc (AFI) due to the triggering of a ‘make whole’ provision in the value of escrowed shares. |
| (j) | On September 26, 2016, the Company issued 133,900 (1,339,000 pre-reverse split) shares of restricted common stock to employees Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, Mike Silverman and Lt. Gen. Michael Flynn pursuant to stock award agreements. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. Gen. Flynn forfeited 2,500 (25,000 pre-reverse split) unvested shares. |
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| (k) | On September 26, 2016, the Company issued 3,500 (35,000 pre-reverse split) shares of common stock to Reginald Brown pursuant to stock award agreement for consulting services. |
| (l) | On September 26, 2016, the Company issued 2,500 (25,000 pre-reverse split) shares of common stock to a member of the Strategic Advisory Board. |
| (m) | On September 29, 2016, the Company issued 49,667 (496,667 pre-reverse split) shares of common stock to twelve investors, including 40,667 (406,666 pre-reverse split) shares to four affiliate investors. These investors purchased stock at $50.00 ($5.00 pre-reverse split) per share and under the purchase agreement received twelve months of price protection. The Convertible Promissory Notes Series 2016 due October 1, 2017 included a $30.00 ($3.00 pre-reverse split) per share conversion factor, thereby triggering the price protection feature. |
During the year ended December 31, 2016, the Company granted 6,500 (65,000 pre-reverse split) common stock options to employees for service provided with exercise prices between $29.10 ($2.91 pre-reverse split) and $37.70 ($3.77 pre-reverse split).
During the year ended December 31, 2016, the Company granted 6,000 (60,000 pre-reverse split) common stock warrants to consultants for service provided with an exercise price of $29.10 ($2.91 pre-reverse split).
During the year ended December 31, 2017, the Company issued a total of 50,025 (500,250 pre-reverse split) shares of common stock as follows:
| (a) | On April 24, 2017, the holder of Series A preferred stock converted a total of 100,100 shares of Series A for an aggregate of 25,025 (250,250 pre-reverse split) shares of restricted common stock in accordance with their conversion rights which includes a blocker with respect to individual ownership percentages. |
| (b) | On August 3, 2017, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from May 1, 2017 until April 30, 2018. |
During the year ended December 31, 2017, the Company issued a total of 751,000 (7,510,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On January 9, 2017, the Company issued an option to a director to purchase 10,000 (100,000 pre-reverse split) shares of common stock with an exercise price of $29.00 ($2.90 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued options to purchase an aggregate of 521,000 (5,210,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to officers, directors and employees for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued options to purchase an aggregate of 200,000 (2,000,000 pre-reverse split) shares of its common stock outside its 2015 Equity Plan to officers and directors, and for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
| (d) | On December 13, 2017, the Company issued options to purchase an aggregate of 20,000 (200,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
During the year ended December 31, 2017, the Company issued a total of 205,000 (2,050,000 pre-reverse split) warrants to purchase common stock as follows:
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| (a) | On August 3, 2017, the Company issued warrants to purchase an aggregate of 3,000 (30,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued a warrant to purchase 200,000 (2,000,000 pre-reverse split) shares of the Company’s common stock to Dr. Philip Frost for services to be provided under the terms of his service to the Strategic Advisory Board through April 2018 with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued a warrant to purchase 2,000 (20,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
On August 2, 2017, the Company issued a promissory note to City National Bank of Florida (“CNB”) in the principal amount of $2,000,000, the CNB Note, with a maturity date of August 2, 2018. On September 26, 2018, the Company and CNB agreed to extend the maturity date of the CNB Note to August 2, 2019. On August 29, 2019, the Company and CNB agreed to extend the maturity date of the promissory note to August 2, 2020.
On August 3, 2017, the Company issued a secured promissory note (the “Secured Convertible Promissory Note Series 2017”) due August 2, 2018 in the aggregate principal amount of $2,000,000 in a private placement to Frost Nevada Investments Trust (“Frost Nevada”) of which Dr. Phillip Frost, an affiliate shareholder of the Company, is the trustee. On September 26, 2018, the Company and Frost Nevada agreed to extend the maturity date of the Secured Convertible Promissory Note Series 2017 to August 2, 2019. On December 21, 2018, the Company issued 403,074 (4,030,740 pre-reverse split) shares of common stock to Frost Nevada in full settlement of the $2,000,000 principal balance and $15,370 accrued interest.
In October 2017, we received an award in excess of $800,000 gross revenue from a prime contractor for a multi-mission capable WASP, including secure voice and data network range extension from an existing DoD customer, which was delivered in February 2018.
In March 2018, we received an approximately $1.7 million gross revenue award, our largest single DoD award to date from a prime contractor for a multi-mission capable tactical WASP. The March 2018 order, which was delivered in October 2018, was the third repeat order awarded to us for WASP as the result of a growing number of successful international military deployments.
During the year ended December 31, 2018, the Company issued a total of 1,445,816 (14,458,151 pre-reverse split) shares of common stock as follows:
| (a) | On October 25, 2018, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from November 1, 2018 until October 31, 2019. |
| (b) | On October 24, 2018, the Company commenced an offering of up to 1,000,000 (10,000,000 pre-reverse split) shares of its common stock (the “Offered Shares”) in a private placement of up to $5,500,000 to certain accredited investors at a purchase price of $5.50 ($0.55 pre-reverse split) per share pursuant to a Stock Purchase Agreement (the “SPA”). Closing of the offering pursuant to the SPA is conditioned upon certain, limited customary representations and warranties, as well as the Company having received an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after October 9, 2018 (the “Qualifying Sales Order”). As required under the SPA, upon receipt by the Company of a Qualifying Sales Order, the Company will give written notice to the investors notifying them that the Company intends to close on the purchase of the Offered Shares pursuant to the SPA. Within three days after the delivery of the notice to the investors, the Company and the investors will then close under the SPA and at closing, the Company will issue to each purchasing investor the number of shares subscribed for by each Investor. |
| (c) | On December 21, 2018, the Board approved an Amended and Restated Stock Purchase Agreement (the “Amended SPA”) relating to the Offered Shares to reduce the purchase price in the Offering to $5.00 ($0.50 pre reverse split) per share, reduce the maximum offering amount from $5,500,000 to $5,000,000, extend the initial closing date of the Offering to January 15, 2019 and permit sales of the Common Stock for a period of 30 days after the initial closing in order to attract a greater number of investors. In addition, the Amended and Restated Stock Purchase Agreement revised the definition of the event triggering the initial closing date to the date when the Company enters into an agreement with a prime government contractor at any time commencing after October 8, 2018 whereby the Company agrees to provide a minimum of $4,000,000 in goods and services to such contractor. |
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| (d) | On December 21, 2018, the Company issued 617,742 (6,177,411 pre-reverse split) shares of common stock pursuant to conversion of the Convertible Promissory Notes Series 2016 and 403,074 (4,030,740 pre-reverse split) shares of common stock pursuant to conversion of the Secured Convertible Promissory Note Series 2017. |
| (e) | On December 27, 2018, the Company completed the sale of 400,000 (4,000,000 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,000,000, of which 100,000 shares (1,000,000 pre-reverse split) shares were issued to Jay Nussbaum, the Company’s former Chief Executive Officer and Chairman of the Board of Directors, and 300,000 (3,000,000 pre-reverse split) shares were issued to Frost Gamma Investment Trust, of which Dr. Phillip Frost, an affiliate shareholder of the Company, is the trustee. On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, which was repaid on February 8, 2019 including $575 in accrued interest, (3) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Dan Erdberg, the Company’s CEO and President, in the amount of $50,000 which was cancelled on April 30, 2019 pursuant to Stock Redemption and Note Cancellation Agreements, and (4) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000 which was reduced by $7,500 in January 2019, leaving a principal balance of $17,500 which was repaid in full on April 30, 2019, including $134 in accrued interest. Each note bore an interest rate at a fixed rate of 3% per annum and principal and interest under the notes could be prepaid at any time without penalty. |
During the year ended December 31, 2018, the Company issued a net total of 656,000 (6,560,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 28, 2018, the Company issued options to purchase an aggregate of 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (b) | On May 16, 2018, the Company issued options to purchase an aggregate of 46,000 (460,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to four employees with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (c) | On August 22, 2018, the Company granted options to purchase an aggregate of 500,000 (5,000,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $10.00 ($1.00 pre-reverse split) per share. On September 26, 2018, the Board resolved to cancel these options which had not vested. |
| (d) | On September 26, 2018, the Company granted options to purchase an aggregate of 600,000 (6,000,000 pre-reverse split) shares of Company common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $6.50 ($0.65 pre-reverse split) per share. |
During the year ended December 31, 2018, the Company issued a total of 10,000 (100,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On September 26, 2018, the Company issued a warrant to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to Global Security Innovative Strategies, LLC for services at an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
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In July 2018, we entered into an exclusive teaming agreement with a U.S. Government prime contractor which is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security (“DHS”), Customs and Border Protection (“CBP”). Under the terms of the teaming agreement:
| ● | We agreed to work together to propose retrofit and new production of surveillance systems developed under the prime contract; and |
| ● | We agreed to provide the WASP aerostat, engineering support for WASP system integration, Field Service Representatives personnel support for WASP aerostat maintenance, training, WASP deployment, retrieval and movement, and warranty for WASP. |
In December 2018, the prime contractor awarded us a subcontract valued at approximately $3.8 million gross revenue for six WASP aerostat systems. These WASP powered surveillance systems are expected to be deployed at a CBP Border Patrol Sector on the southern border of the United States commencing in September 2019. There are 20 Border Patrol Sectors along U.S. borders, 9 of which are located along the U.S. Southern border. We have begun production of the initial units at our facilities in Florida and at our ISO 9001-certified manufacturing strategic partner’s facility. Deliveries began late in the second quarter of 2019 and will continue throughout 2019. We are working closely with the prime contractor to explore additional product and services opportunities in DHS and CBP under our exclusive teaming agreement.
Our marketing efforts include submission of bids on several government procurement projects. In the past, we also showcased our products and technologies at numerous conferences and live demonstrations, including the 2017 Special Operations Forces Industry Conference, Warrior Expo East and took part in a series of tests conducted on the southern border of the United States, State of Florida HURREX exercise, CyberQuest 2017, and presentations to a variety of federal and state government agencies. We have also increased marketing efforts and announced the following:
| ● | On August 13, 2019, we announced that we delivered the initial set of WASP Aerostat systems in support of the United States Border Patrol; U.S. Customs and Border Protection. The initial award valued at approximately $3.8 million gross revenue was announced in January 2019 and the follow-on order of approximately $1.7 million gross revenue was announced in June 2019. Due to customer-related confidentiality considerations, we were not permitted to provide additional information about those awards at the time of the announcements. |
| ● | On July 18, 2019, we announced that we delivered our first contract award for the Ultra-Tactical WASP Lite System, valued in excess of $1.1 million, from prime contractor ADS, Inc. to a U.S. Army customer. The award was originally announced on May 7, 2019. |
| ● | On February 14, 2019, we announced that we had commenced the communications upgrade of a U.S. Army-owned WASP tactical aerostat. The upgrade will enable secure communications links utilizing advanced waveforms connecting soldiers on the battlefield. |
| ● | On January 31, 2019, we announced that we secured an additional $2.0 million in capital, completing a private placement raising an aggregate of $4.0 million which will be used to expand production and staffing. |
| ● | On January 22, 2019, we announced the conclusion of training for a U.S. Army unit on the next generation WASP ERS tactical aerostat. The delivery of the $1.7 million order itself was announced on October 15, 2018. |
| ● | On January 15, 2019, we announced the expansion of our manufacturing capacity. |
| ● | On December 27, 2018, we announced that we had eliminated over 70% of our existing debt in support of our planned growth. |
During the six months ended June 30, 2019, the Company issued a total of 391,550 (3,915,500 pre-reverse split) shares of common stock as follows:
| (a) | On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at a purchase price of $5.00 ($0.50 pre-reverse split) per share, for an aggregate purchase price of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Dan Erdberg in the amount of $50,000 and (4) a full-recourse promissory note payable by Kendall Carpenter in the amount of $25,000. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019 leaving a principal balance of $17,500. On April 30, 2019, Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, repaid the entire principal balance of the $17,500 note described above in Footnote #8 to the March 31, 2019 unaudited financial statements, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg, the Company’s CEO and President, entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 10,000 (100,000 pre-reverse split) shares of common stock paid pursuant to the note described above in Footnote #8 to the June 30, 2019 unaudited financial statements and cancelled the $50,000 note and the related $267 in accrued interest. |
On February 8, 2019, the non-affiliate investor repaid the $500,000 principal due on the promissory note and on February 11, 2019, the $575 accrued interest.
On April 30, 2019, the Company entered into a Stock Redemption and Note Cancellation Agreement with Daniyel Erdberg to redeem 10,000 (100,000 pre-reverse split) shares in exchange for cancellation of the $50,000 note.
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On April 30, 2019, the Carpenter note was repaid in full, including principal of $17,500 and accrued interest of $134.
During the six months ended June 30, 2019, the Company issued a net total of 13,000 (130,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 20, 2019, the Company issued options to purchase an aggregate of 13,000 (130,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two employees for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share. |
During the six months ended June 30, 2019, the Company issued a net total of 5,000 (50,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On March 20, 2019, the Company issued a warrant to purchase 5,000 (50,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a contractor for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share. |
On March 21, 2019, concurrent with the resignation of Kevin Hess, the Company’s prior Chief Technology Officer, the Company and Cognitive Carbon Corporation (“CCC”), a related party, entered into an agreement pursuant to which CCC agreed to provide Chief Technology Officer services, sales and marketing services and outsourced software and platform development services to be provided personally by Kevin Hess or third-party development firms of his choosing for outsourced development. CCC will receive $19,750 per month for one year for the Chief Technology Officer services and potential bonuses and an amount up to $120,000 for outsourced software and platform development. Felicia Hess, the Company’s Chief Quality Officer, who is married to Kevin Hess, is the President and Director of CCC.
Recent Developments
On July 18, 2019, we announced that we delivered our first contract award for the Ultra-Tactical WASP Lite System from prime contractor ADS, Inc. to a U.S. Army customer. The order was originally announced on May 7, 2019. Under the terms of the award, valued in excess of $1.1 million gross revenue, we will supply multiple WASP Lite aerostat systems capable of enhancing and extending the modern networked battlefield supporting specialized waveform communications equipment and day/night ISR (Intelligence, Surveillance and Reconnaissance) payloads. The WASP Lite employs the same proprietary, advanced tethering technologies found in our Winch Aerostat Small Platform (“WASP”) tactical aerostat for secure power and data transmission. Deliveries under this award commenced in July 2019.
On August 13, 2019, we announced that we delivered the initial set of WASP Aerostat systems in support of the United States Border Patrol; U.S. Customs and Border Protection. The initial award valued at approximately $3.8 million gross revenue was announced in January 2019 and the follow-on order of approximately $1.7 million gross revenue was announced in June 2019. Due to customer-related confidentiality considerations, we were not permitted to provide additional information about those awards at the time of the announcements.
On August 31, 2019, Jay H. Nussbaum, the Company’s Chairman of the Board and Chief Executive Officer, passed away.
On September 4, 2019, the Company’s Board appointed Mr. Aguilar, who has served as a member of the Board since 2017, as Chairman of the Board. On September 4, 2019, in connection with Mr. Aguilar’s appointment as Chairman of the Board, the parties to the 2017 Director Agreement agreed to amend the 2017 Director Agreement (“2017 Amendment”) pursuant to which the Company agreed to pay Mr. Aguilar an annual fee of $120,000 in exchange for his services as Chairman of the Board. See footnote regarding Mr. Aguilar in “Executive Compensation – Director Compensation Table” in this prospectus.
On September 4, 2019, the Board appointed Daniyel Erdberg as the Company’s Chief Executive Officer and as a member of the Board to fill the vacancy created by Mr. Nussbaum’s death. Mr. Erdberg also continues to serve as the Company’s President since his appointment to that position on October 2, 2015. In connection with Mr. Erdberg’s appointment as Chief Executive Officer and director, the Company and Mr. Erdberg entered into Amendment No. 6 (“Amendment No. 6”) to the Employment Agreement with Mr. Erdberg on September 4, 2019. Pursuant to the terms of Amendment No. 6, the term of employment was extended to December 31, 2020 and the annual base salary payable under the Employment Agreement was increased from $175,000 to $250,000. See “Executive Compensation - Employment Contracts and Potential Payments Upon Termination or Change in Control” in this prospectus.
On September 4, 2019, Robert Guerra resigned as a director and member of the Board’s committees, effective immediately. Mr. Guerra’s resignation was not the result of any disagreement with the Company on any matter relating to its operation, policies or practices. On September 4, 2019, the Company redeemed 10,000 (100,000 pre-reverse split) shares of its common stock, which are now Treasury Stock, pursuant to a Redemption Agreement at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $50,000 which were issued to Mr. Guerra, the Company’s former director.
As a result of these changes to the composition of the board and its committees and the officers on September 4, 2019, the Company’s officers and directors are as follows since September 5, 2019:
| Name | Age | Positions and Offices | |||
| Daniyel Erdberg | 41 | Chief Executive Officer, President and Director | |||
| Kendall Carpenter | 63 | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | |||
| Felicia Hess | 52 | Chief Quality Officer | |||
| David Aguilar | 63 | Chairman of the Board | |||
| Timothy Hoechst | 53 | Director and Chairman of the Compensation Committee | |||
| John E. Miller | 78 | Director and Chairman of the Audit Committee |
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Going Concern
For the year ended December 31, 2017, the Company disclosed that its ability to continue as a going concern was predicated on the Company’s ability to create and market innovative products, raise capital, reduce debt or renegotiate terms, and to sustain adequate working capital to finance its operations. During 2018, the Company met or exceeded those predications. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.8 million in gross revenues which was received in December 2018 and expected to be delivered by the end of 2019. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity leaving only $2,000,000 in bank debt on the books. As of June 30, 2019, the Company has approximately $1,200,000 in working capital, an improvement of approximately $1,000,000 more than the Company’s working capital balance at the end of 2018. The Company announced its first-ever profitable financial results for the second quarter ended June 30, 2019.
The focus on opportunities for aerostats, the settlement of debt obligations, the funds generated from stock sales and other initiatives contributing to additional working capital should avoid any substantial doubt about the Company’s ability to continue as a going concern as defined by FASB Accounting Standards Update 2014-05, Disclosure of Uncertainties about an Entity’s ability to Continue as a Going Concern. We believe that the actions discussed above mitigate the substantial doubt raised by our recent operating losses and satisfy our estimated liquidity needs twelve months from the issuance of the financial statements. In light of the foregoing, our auditor did not include a going concern qualification in their audit report dated March 22, 2019 for the years ended December 31, 2018 and 2017 notwithstanding our historical operating losses and accumulated deficit.
Summary Risk Factors
Our business is subject to numerous risks and uncertainties, including those in the section entitled “Risk Factors” and elsewhere in this prospectus. These risks include, but are not limited to, the following:
| ● | our history of losses; |
| ● | our inability to attract sufficient demand for our services and products; |
| ● | our ability to successfully execute our growth and acquisition strategy and manage effectively our growth; |
| ● | changes in the competitive environment in our industry and the markets we serve, and our ability to compete effectively; |
| ● | dependence on a strong brand image with our end customers; |
| ● | our cash needs and the adequacy of our cash flows and earnings; |
| ● | our ability to access additional capital; |
| ● | our dependence upon our executive officers, founders and key employees; |
| ● | our ability to attract and retain qualified personnel; |
| ● | our receiving a substantial portion of our revenues from a limited number of customers, and the loss of, or a significant reduction in usage by, one or more of our major customers would result in lower revenues; |
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| ● | our reliance on our technology systems, the impact of technological changes and cybersecurity risks; |
| ● | changes in applicable laws or regulations; |
| ● | our ability to protect our trademarks or other intellectual property rights; |
| ● | potential litigation from competitors or customers; and |
| ● | the possibility that we may be adversely affected by other economic, business, and/or competitive factors. |
COMPANY INFORMATION
Our principal executive offices are located at 11651 Central Parkway, #118, Jacksonville, Florida 32224 and our phone number is (904) 834-4400. Our corporate website address is www.droneaviationcorp.com. Information contained on, or accessible through, our website is not a part of, and is not incorporated by reference into, this prospectus.
The name of the Company, the logos of the Company, and other trade names, trademarks or service marks of the Company appearing in this prospectus will be the property of the Company. Trade names, trademarks and service marks of other organizations appearing in this Offering Circular are the property of their respective holders.
Nasdaq Listing and Reverse Stock Split
We applied to list of our common stock and warrants on the NASDAQ Capital Market. If our application to the NASDAQ Capital Market is not approved or we otherwise determine that we will not be able to secure the listing of the common stock and warrants on the NASDAQ Capital Market, we will not complete the offering.
On June 5, 2019, our board of directors and stockholders holding a majority of our outstanding voting power, approved resolutions authorizing a reverse stock split of the outstanding shares of our common stock in the range from one-for-five (1-for-5) to one-for-ten (1-for-10), which ratio will be selected by the board of directors. The board of directors will set the ratio of the reverse stock split, and the reverse stock split will become effective following approval by FINRA of the reverse stock split, prior to the effective date of the registration statement (of which this prospectus forms a part). The reverse stock split is intended to allow us to meet the minimum share price requirement of the NASDAQ Capital Market.
Except as otherwise indicated and except in our financial statements and the notes thereto, all references to our common stock, share data, per share data and related information depict an assumed reverse stock split ratio of 1-for-10 (“Reverse Stock Split”) until final determination by the board of directors as if it was effective and as if it had occurred at the beginning of the earliest period presented. The Reverse Stock Split, when effective, will combine each ten shares of our outstanding common stock into one share of common stock, without any change in the par value per share, and the Reverse Stock Split correspondingly will adjust, among other things, the exercise rate of our warrants and options into our common stock. No fractional shares will be issued in connection with the Reverse Stock Split, and any fractional shares resulting from the Reverse Stock Split will be rounded up to the nearest whole share.
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ORGANIZATIONAL STRUCTURE
The diagram below depicts our organizational structure after this Offering:
This diagram assumes the underwriters exercise their over-allotment option in full but does not assume the exercise of the warrants forming part of the units or the over-allotment option.
| The Offering | ||
| Issuer | Drone Aviation Holding Corp. | |
| Securities offered by us | 1,204,819 units, at an assumed public offering price of $8.30 per unit, which was the last reported sale price of our common stock on October 9, 2019, each unit consisting of one share of our common stock and one warrant to purchase one share of common stock for a total of 1,204,819 shares and warrants to purchase up to an aggregate of 1,204,819 shares of common stock. The actual number of units we will offer will be determined based on the actual public offering price. The units will not be certificated and the shares of our common stock and the warrants are immediately separable at closing and will be issued and tradeable separately, but will be purchased together as a unit in this offering. | |
| Terms of Warrants issued as part of a unit offered by us | Each warrant will have an exercise price per share of $9.96 based on the assumed public offering price, which is equal to 120% of the offering price of a unit in this offering, will be immediately exercisable and will expire on the fifth anniversary of the original issuance date. The warrants do not have any price protection features or cashless exercise provisions. | |
| Over-allotment option | We have granted Roth Capital Partners and Aegis Capital Corp., the representatives of the underwriters, an option to purchase up to an additional 180,722 shares of common stock and/or warrants to purchase up to 180,722 shares of common stock (equal to 15% of the number of shares of common stock and warrants underlying the units sold in the offering), from us in any combination thereof, at the public offering price less the underwriting discount and commissions solely to cover over-allotments, if any. The representatives of the underwriters may exercise this option in full or in part at any time and from time to time until 45 days after the date of this prospectus. | |
| Common stock outstanding before this offering | 2,755,613 (27,556,121 pre-reverse split) shares of common stock | |
| Common stock to be outstanding after this offering | 3,960,432 shares (assuming that none of the warrants are exercised) and 5,165,251 if the warrants offered hereby are exercised in full. If the representatives’ over-allotment option is exercised in full, the total number of shares of common stock outstanding immediately after this offering would be 4,141,154 (assuming that none of the warrants are exercised) and 5,345,973 if the warrants offered hereby are exercised in full. | |
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| Use of proceeds | We expect to receive net proceeds from this offering of approximately $9,200,000 (or approximately $10,580,000 if the underwriters exercise in full their over-allotment option) after deducting estimated underwriting discounts and commissions, and after our offering expenses, estimated at $459,284. We intend to use the net proceeds from this offering to fund working capital, manage the balance on the bank line of credit and general corporate purposes and possibly acquisitions of other companies, products or technologies. See “Use of Proceeds.” | |
| Risk factors | See “Risk Factors” beginning on page 19 of this prospectus for a discussion of some of the factors you should carefully consider before deciding to invest in our common stock. | |
| Trading symbol | Our common stock is presently quoted on the OTCQB Market under the symbol “DRNE”. | |
| Listing Application; Separation | We have applied to list our common stock and warrants on the NASDAQ Capital Market under the symbols “DRNE” and “DRNEW,” respectively. Prior to this offering, there has been no public market for our warrants on the OTC Markets or any other trading market. The approval of our listing on the NASDAQ Capital Market is a condition of closing this offering.
We will not be issuing physical units in this offering. At closing, we will issue to investors only the shares of common stock and warrants underlying the units offered hereby. | |
| Dividend policy | We do not anticipate declaring or paying any cash dividends on our common stock following our public offering. | |
| Reverse Stock Split | Prior to the closing of this offering, we will effect a reverse stock split of the outstanding shares of our common stock at a ratio in the range of one-for-five and one-for-ten, with such ratio to be determined at the sole discretion of the Board of Directors. The reverse stock split was approved by our Board of Directors and by our majority stockholder on June 5, 2019. Except as otherwise indicated and except in our financial statements and the notes thereto, all references to our common stock, share data, per share data and related information depict an assumed reverse stock split ratio of 1-for-10 until final determination by the board of directors as if it was effective and as if it had occurred at the beginning of the earliest period presented. |
Unless we indicate otherwise, all information in this prospectus:
| ● | give pro forma effect to the assumed Reverse Stock Split of our outstanding shares of common stock, options and warrants and the corresponding adjustment of all common stock price per share and stock option and warrant exercise price data, except for the financial statements and the notes thereto; |
| ● | is based on 2,755,613 (27,556,121 pre-reverse split) shares of common stock issued and outstanding as of October 11, 2019; |
| ● | assumes no exercise by the representatives of the underwriters of its option to purchase up to an additional 180,722 shares of common stock and/or warrants to purchase 180,722 shares of common stock to cover over-allotments, if any; | |
| ● | excludes 1,385,541 shares of common stock issuable upon the full exercise of the warrants (forming part of the units) offered hereby; |
| ● | excludes 1,394,500 (13,945,000 pre-reverse split) shares of our common stock issuable upon exercise of outstanding stock options at a weighted average exercise price of $6.10 ($0.61 pre-reverse split) per share as of October 11, 2019; and |
| ● | excludes 227,000 (2,270,000 pre-reverse split) shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $6.70 ($0.67 pre-reverse split) per share as of October 11, 2019. |
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SUMMARY HISTORICAL FINANCIAL DATA
The following table presents our summary historical financial data for the periods indicated. The summary historical financial data for the years ended December 31, 2018 and 2017 and the balance sheet data as of December 31, 2018 and 2017 are derived from the audited financial statements. The summary historical financial data for the six months ended June 30, 2019 and 2018 and the balance sheet data as of June 30, 2019 and 2018 are derived from our unaudited financial statements.
Historical results are included for illustrative and informational purposes only and are not necessarily indicative of results we expect in future periods, and results of interim periods are not necessarily indicative of results for the entire year. You should read the following summary financial data in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and related notes appearing elsewhere in this prospectus.
| Year Ended December 31, | Six Months Ended June 30, | |||||||||||||||
| 2018 | 2017 | 2019 | 2018 | |||||||||||||
| (unaudited) | ||||||||||||||||
| Statement of Operations Data | ||||||||||||||||
| Revenues | $ | 2,722,713 | $ | 562,078 | $ | 1,380,497 | $ | 911,023 | ||||||||
| Cost of goods sold | 2,214,166 | 338,579 | 404,812 | 486,030 | ||||||||||||
| Gross margin | 508,547 | 223,499 | 975,685 | 424,993 | ||||||||||||
| General administrative and expense | 8,639,364 | 10,069,841 | 1,959,788 | 3,030,928 | ||||||||||||
| Loss from operations | (8,130,817 | ) | (9,846,342 | ) | (984,103 | ) | (2,605,935 | ) | ||||||||
| Total other expense | (344,496 | ) | (477,650 | ) | (65,257 | ) | (148,455 | ) | ||||||||
| Net loss | $ | (8,475,313 | ) | $ | (10,323,992 | ) | $ | (1,049,360 | ) | $ | (2,754,390 | ) | ||||
| Net loss per share, basic and diluted | $ | (0.89 | ) | $ | (1.15 | ) | $ | (0.04 | ) | $ | (0.30 | ) | ||||
| Balance Sheet Data (at period end) | ||||||||||||||||
| Cash and cash equivalents | $ | 2,282,365 | $ | 615,375 | $ | 675,772 | $ | 429,605 | ||||||||
| Working capital (deficit) (1) | 212,879 | (557,195 | ) | 1,207,968 | (1,873,649 | ) | ||||||||||
| Total assets | 3,556,599 | 3,073,548 | 4,638,143 | 2,440,405 | ||||||||||||
| Total liabilities | 2,485,024 | 5,377,340 | 2,544,166 | 6,294,684 | ||||||||||||
| Stockholders’ equity (deficit) | 1,071,575 | (2,303,792 | ) | 2,093,977 | (3,854,279 | ) | ||||||||||
| (1) | Working capital represents total current assets less total current liabilities. |
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Investment in our securities involves a number of substantial risks. You should not invest in our securities unless you are able to bear the complete loss of your investment. In addition to the risks and investment considerations discussed elsewhere in this prospectus, the following factors should be carefully considered by anyone purchasing the securities offered through this prospectus. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business operations. If any of the following risks actually occur, our business could be harmed. In such case, the trading price of our listed securities could decline, and investors could lose all or a part of the money paid to buy our securities.
Risks Related to Our Business and Industry
We incurred a net loss in the first six months of 2019 and the fiscal years of 2018 and 2017 with negative cash flows and we cannot assure you as to when, or if, we will become profitable and generate positive cash flows.
We incurred a net loss of $1,049,360, $8,475,313 and $10,323,992 for the six months ended June 30, 2019 and the fiscal years ended December 31, 2018 and 2017, respectively, and negative cash flows from operations in each of those years. As of June 30, 2019, we had an aggregate accumulated deficit of $39,521,450. Such losses have historically required us to seek additional funding through the issuance of debt or equity securities. Our long-term success is dependent upon among other things, achieving positive cash flows from operations and if necessary, augmenting such cash flows using external resources to satisfy our cash needs. Based on firm commitments we recently entered into, we project to have positive cash flows to fund operations during the next twelve months. However, we have historically experienced and may prospectively experience fluctuations in our quarterly earnings due to the nature of our business and the uncertainty of the government budgetary cycle and securing purchaser contracts and we may be unable to achieve these goals and actual results could differ from our estimates and assumptions. Accordingly, we may have to supplement our cash flow, by debt financing or sales of equity securities. There can be no assurance that we will be able to obtain additional funding, if needed, on commercially reasonable terms, or of all.
We are a holding company and depend upon our subsidiaries for our cash flows.
We are a holding company. All of our operations are conducted, and almost all of our assets are owned, by our subsidiaries. Consequently, our cash flows and our ability to meet our obligations depend upon the cash flows of our subsidiaries and the payment of funds by these subsidiaries to us in the form of dividends, distributions or otherwise. The ability of our subsidiaries to make any payments to us depends on their earnings, the terms of their indebtedness, including the terms of any credit facilities and legal restrictions. Any failure to receive dividends or distributions from our subsidiaries when needed could have a material adverse effect on our business, results of operations or financial condition.
Product development is a long, expensive and uncertain process.
The development of LTA aerostats and tethered drone ISR systems is a costly, complex and time-consuming process, and the investment in product development often involves a long wait until a return, if any, is achieved on such investment. We continue to make significant investments in research and development relating to our aerostats and tethered drones. Investments in new technology and processes are inherently speculative. Technical obstacles and challenges we encounter in our research and development process may result in delays in or abandonment of product commercialization, may substantially increase the costs of development, and may negatively affect our results of operations.
Successful technical development of our products does not guarantee successful commercialization.
Even if we successfully complete the technical development for one or all of our product development programs, we may still fail to develop a commercially successful product for a number of reasons, including, among others, the following:
| ● | failure to obtain the required regulatory approvals for their use; |
| ● | prohibitive production costs; |
| ● | competing products; |
| ● | lack of innovation of the product; |
| ● | continuing technological changes in the market rendering the product obsolete; |
| ● | failure to scale-up our operations sufficiently to satisfy demand for our products; |
| ● | ineffective distribution and marketing; |
| ● | lack of sufficient cooperation from our partners; and |
| ● | demonstrations of the products not aligning with or meeting customer needs. |
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Although we have sold our WASP aerostat systems and various other aerostat ISR systems and components, our success in the market for the products we develop will depend largely on our ability to prove our products’ capabilities. Upon demonstration, our aerostats and tethered drones may not have the capabilities they were designed to have or that we believed they would have. Furthermore, even if we do successfully demonstrate our products’ capabilities, potential customers may be more comfortable doing business with a larger, more established, more proven company than us. Moreover, competing products may prevent us from gaining wide market acceptance of our products. We may not achieve significant revenue from new product investments for a number of years, if at all.
Our potential customers are likely to be U.S. Government or Government-related entities that are subject to appropriations by Congress and reduced funding for defense procurement and research and development programs would likely adversely impact our ability to generate revenues.
We anticipate that the majority of our revenue (to be derived from our aerostats product sales) at least in the foreseeable future will come from U.S. Government and Government-related entities, including the DoD and other departments and agencies. Government programs that we may seek to participate in, and contracts for aerostats or tethered drones, must compete with other programs for consideration during Congress’ budget and appropriations hearings, and may be affected by changes not only in political power and appointments but also general economic conditions and other factors beyond our control. A government closure based on a failure of Congress to agree on federal appropriations or the uncertainty surrounding a continuing resolution may result in termination or delay of federal funding opportunities we are pursuing. Reductions, extensions or terminations in a program that we are seeking to participate in, or overall defense or other spending could adversely affect our ability to generate revenues and realize any profits. We cannot predict whether potential changes in security, defense, communications and intelligence priorities will afford opportunities for our business in terms of research and development or product contracts, but any reduction in government spending on such programs could negatively impact our ability to generate revenues. In addition, our ability to participate in U.S. Government programs may be affected by the adoption of new laws or regulations relating to Government contracting or changes in existing laws or regulations, changes in political or public support for security and defense programs, and uncertainties associated with the current global threat environment and other geo-political matters.
Some of our products may be subject to governmental regulations pertaining to exportation.
International sales of our products may be subject to U.S. laws, regulations and policies like ITAR and other export laws and regulations and may be subject to first obtaining licenses, clearances or authorizations from various regulatory entities. Although we are not currently pursuing international sales, we may deploy working capital towards expansion into foreign markets. If we are not allowed to export our products or the clearance process is burdensome, our ability to generate revenue would be adversely affected. The failure to comply with any of these regulations could adversely affect our ability to conduct our business and generate revenues as well as increasing our operating costs.
We compete with companies that have significantly more resources than we have and that already have received government contracts for the development of aerostats and tethered drones.
A number of our competitors have received considerable funding from government or government-related sources to develop various aerostats and tethered drones. Most of these organizations and many of our other competitors have greater financial, technical, manufacturing, marketing and sales resources and capabilities than we do. Our products will compete not only with other aerostats and tethered drones, but also with heavier-than-air fixed wing aircraft, manned aircraft, communications satellites and balloons. We anticipate increasing competition as a result of defense industry consolidation, which has enabled companies to enhance their competitive position and ability to compete against us. In addition, other companies may introduce competing aerostats, tethered drones, or solutions based on alternative technologies that may adversely affect our competitive position. As a result, our products may become less or non-competitive or obsolete. If we are not able to compete successfully against our current and future competitors, we may fail to generate revenues and our financial condition would be adversely affected.
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We may consider pursuing strategic transactions in the future, which could be difficult to implement, disrupt our business or change our business profile significantly.
We may consider potential strategic transactions, which could involve acquisitions of businesses or assets, joint ventures or investments in businesses, products or technologies that expand, complement or otherwise relate to our current or future business. We may also consider, from time to time, opportunities to engage in joint ventures or other business collaborations with third parties to address particular market segments. These activities create risks such as, among others: (i) the need to integrate and manage the businesses and products acquired with our own business and products, (ii) additional demands on our resources, systems, procedures and controls, (iii) disruption of our ongoing business, and (iv) diversion of management’s attention from other business concerns. Moreover, these transactions could involve: (a) substantial investment of funds or financings by issuance of debt or equity securities; (b) substantial investment with respect to technology transfers and operational integration; and (c) the acquisition or disposition of product lines or businesses. Also, such activities could result in one-time charges and expenses and have the potential to either dilute the interests of existing shareholders or result in the issuance of or assumption of debt. Such acquisitions, investments, joint ventures or other business collaborations may involve significant commitments of financial and other resources of our company. Any such activity may not be successful in generating revenue, income or other returns to us, and the resources committed to such activities will not be available to us for other purposes. Moreover, if we are unable to access capital markets on acceptable terms or at all, we may not be able to consummate acquisitions or may have to do so on the basis of a less than optimal capital structure. Our inability to: (i) take advantage of growth opportunities for our business or for our products or (ii) address risks associated with acquisitions or investments in businesses may negatively affect our operating results. Additionally, any impairment of goodwill or other intangible assets acquired in an acquisition or in an investment or charges to earnings associated with any acquisition or investment activity may materially reduce our earnings. These future acquisitions or joint ventures may not result in their anticipated benefits, and we may not be able to properly integrate acquired products, technologies or businesses with our existing products and operations or combine personnel and cultures. Failure to do so could deprive us of the intended benefits of those acquisitions.
If we fail to protect our intellectual property rights, we could lose our ability to compete in the marketplace.
Our intellectual property and proprietary rights are important to our ability to remain competitive and for the success of our products and our business. Patent protection can be limited and not all intellectual property is or can be patented. We rely on a combination of patent, trademark, copyright, and trade secret laws as well as confidentiality agreements and procedures, non-competition agreements and other contractual provisions to protect our intellectual property, other proprietary rights and our brand. We have little protection when we must rely on trade secrets and nondisclosure agreements. Our intellectual property rights may be challenged, invalidated or circumvented by third parties. We may not be able to prevent the unauthorized disclosure or use of our technical knowledge or other trade secrets by employees or competitors. Furthermore, our competitors may independently develop technologies and products that are substantially equivalent or superior to our technologies and/or products, which could result in decreased revenues for us. Moreover, the laws of foreign countries may not protect our intellectual property rights to the same extent as the laws of the U.S. Litigation may be necessary to enforce our intellectual property rights, which could result in substantial costs to us and substantial diversion of management attention. If we do not adequately protect our intellectual property, our competitors could use it to enhance their products. Our inability to adequately protect our intellectual property rights could adversely affect our business and financial condition and the value of our brand and other intangible assets.
If we fail to protect our intellectual property rights, our ability to pursue the development of our technologies and products would be negatively affected.
Our success will depend in part on our ability to obtain patents and maintain adequate protection of our intellectual property and technologies. Some foreign countries lack rules and methods for defending intellectual property rights and do not protect proprietary rights to the same extent as the United States. We have not filed for any patent protection rights outside the United States, and many companies have had difficulty protecting their proprietary rights in foreign countries. We may not be able to prevent misappropriation of our proprietary rights.
The patent process is subject to numerous risks and uncertainties and there can be no assurance that we will be successful in protecting our technologies by obtaining and enforcing patents. These risks and uncertainties include the following: patents that may be issued or licensed may be challenged, invalidated, or circumvented, or otherwise may not provide any competitive advantage; our competitors, many of which have substantially greater resources than us and many of which have made significant investments in competing technologies, may seek, or may already have obtained, patents that will limit, interfere with, or eliminate our ability to make, use, and license our technologies either in the United States or in international markets; there may be significant pressure on the United States government and other international governmental bodies to limit the scope of patent protection both inside and outside the United States for technologies that prove successful as a matter of public policy regarding security concerns; countries other than the United States may have less restrictive patent laws than those upheld by United States courts, allowing foreign competitors the ability to exploit these laws to create, develop, and market competing products.
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Moreover, any patents issued to us may not provide us with meaningful protection, or others may challenge, circumvent or narrow our patents. Third parties may also independently develop technologies similar to ours or design around any patents on our technologies.
In addition, the USPTO and patent offices in other jurisdictions have often required that patent applications concerning software inventions be limited or narrowed substantially to cover only the specific innovations exemplified in the patent application, thereby limiting the scope of protection against competitive challenges. Thus, even if we or our licensors are able to obtain patents, the patents may be substantially narrower than anticipated.
Our success depends on our patents, patent applications that may be licensed exclusively to us, and other patents to which we may obtain assignment or licenses. We may not be aware, however, of all patents, published applications, or published literature that may affect our business by blocking our ability to commercialize our products, by preventing the patentability of future products or services to us or our licensors, or by covering the same or similar technologies that may invalidate our patents, limit the scope of our future patent claims or adversely affect our ability to market our products and services.
In addition to patents, we rely on a combination of trade secrets, confidentiality, nondisclosure and other contractual provisions, and security measures to protect our confidential and proprietary information. These measures may not adequately protect our trade secrets or other proprietary information. If they do not adequately protect our rights, third parties could use our technology, and we could lose any competitive advantage we may have. In addition, others may independently develop similar proprietary information or techniques or otherwise gain access to our trade secrets, which could impair any competitive advantage we may have.
Patent protection and other intellectual property protection are crucial to the success of our business and prospects, and there is a substantial risk that such protections will prove inadequate.
Other companies may claim that we infringe their intellectual property, which could materially increase our costs and harm our ability to generate future revenue and profit.
We do not believe our product technologies infringe the proprietary rights of any third party, but claims of infringement are becoming increasingly common and third parties may assert infringement claims against us. It may be difficult or impossible to identify, prior to receipt of notice from a third party, the trade secrets, patent position or other intellectual property rights of a third party, either in the United States or in foreign jurisdictions. Any such assertion may result in litigation or may require us to obtain a license for or otherwise restrict our use of the intellectual property rights of third parties. If we are required to obtain licenses to use any third-party technology, we would have to pay royalties, which may significantly reduce any profit on our products. In addition, any such litigation could be expensive and disruptive to our ability to generate revenue or enter into new market opportunities. If any of our products are found to infringe other parties’ proprietary rights and we are unable to come to terms regarding a license with such parties, we may be forced to modify our products to make them non-infringing or to cease production of such products altogether.
The nature of our business involves significant risks and uncertainties that may not be covered by insurance or indemnity.
We develop and sell products where insurance or indemnification may not be available, including:
| ● | Designing and developing products using advanced and unproven technologies and aerostats and tethered drones in intelligence and homeland security applications that are intended to operate in high demand, high risk situations; and |
| ● | Designing and developing products to collect, distribute and analyze various types of information. |
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Failure of certain of our products could result in loss of life or property damage. Certain products may raise questions with respect to issues of civil liberties, intellectual property, trespass, conversion and similar concepts, which may raise new legal issues. Indemnification to cover potential claims or liabilities resulting from a failure of technologies developed or deployed may be available in certain circumstances, but not in others. We are not able to maintain insurance to protect against all operational risks and uncertainties. Substantial claims resulting from an accident, failure of our product, or liability arising from our products in excess of any indemnity or insurance coverage (or for which indemnity or insurance is not available or was not obtained) could harm our financial condition, cash flows, and operating results. Any accident, even if fully covered or insured, could negatively affect our reputation among our customers and the public, and make it more difficult for us to compete effectively.
We receive a substantial portion of our revenues from a limited number of customers, and the loss of, or a significant reduction in usage by, one or more of our major customers would result in lower revenues and could harm our business.
Our future success is dependent on establishing and maintaining successful relationships with a diverse set of customers. We currently receive a substantial portion of our revenues from a limited number of customers. Revenues from one customer approximated 95% of total revenues for 2018 and 92% for the six months ended June 30, 2019. At December 31, 2018, accounts receivable from one customer comprised 100% of the Company’s total accounts receivable-trade. Revenues from four customers approximated 85% of total revenues for 2017. At December 31, 2017, accounts receivable from two customers comprised 100% of the Company’s total accounts receivable-trade. It is likely that we will continue to be dependent upon a limited number of customers for a significant portion of our revenues for the foreseeable future and, in some cases, the portion of our revenues attributable to individual customers may increase in the future. The loss of one or more key customers or a reduction in usage by any major customers would reduce our revenues. If we fail to maintain existing customers or develop relationships with new customers, our business would be harmed.
If critical components or raw materials used to manufacture our products become scarce or unavailable, then we may incur delays in manufacturing and delivery of our products, which could damage our business
We rely on a limited number of suppliers for the raw materials and hardware components necessary to manufacture our products. We do not have any long-term agreements with any of our suppliers that obligate them to continue to sell their products to us. Our reliance on these suppliers involves significant risks and uncertainties as to whether our suppliers will provide an adequate supply of required raw materials, component parts, and products. In addition, as the demand for these components and other products increases, it is likely that the price for these components will increase. If we are unable to obtain the raw materials including helium gas used in our aerostat products to provide lift, and component parts in the quantities and the quality we require on a timely basis and at acceptable prices, we may not be able to deliver our products on a timely or cost-effective basis, which could cause our customers to terminate their contracts with us, increase our costs and materially harm our business, results of operations, and financial condition. Furthermore, if our suppliers are unable or unwilling to supply the raw materials or components we require, we will be forced to locate alternative suppliers and possibly redesign our products to accommodate components from alternative suppliers. This would likely cause significant delays in manufacturing and shipping our products to customers and could materially harm our business.
Our future profitability may depend on achieving cost reductions from increasing manufacturing quantities of our products. Failing to achieve such reductions in manufacturing costs could materially affect our business.
We have limited experience manufacturing our products in high volumes and do not know whether or when we will be able to develop efficient, low-cost manufacturing capabilities and processes that will enable us to manufacture our products in large quantities while maintaining our quality, speed, price, engineering and design standards. Our inability to develop such manufacturing processes and capabilities could have a material adverse effect on our business, financial condition, and results of operations. We expect our suppliers to experience an increase in demand for their products, and we may not have reliable access to supplies that we require and may not be able to purchase such materials or components at cost effective prices. There is no assurance that we will obtain any material labor and machinery cost reductions associated with higher production levels, and failure to achieve these cost reductions could adversely impact our business and financial results.
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If we are unable to recruit and retain key management, technical and sales personnel, our business would be negatively affected.
For our business to be successful, we need to attract and retain highly qualified technical, management and sales personnel. The failure to recruit additional key personnel when needed with specific qualifications and on acceptable terms or to retain good relationships with our partners might impede our ability to continue to develop, commercialize and sell our products. To the extent the demand for skilled personnel exceeds supply, we could experience higher labor, recruiting and training costs in order to attract and retain such employees. The loss of any members of our management team may also delay or impair achievement of our business objectives and result in business disruptions due to the time needed for their replacements to be recruited and become familiar with our business. We face competition for qualified personnel from other companies with significantly more resources available to them and thus may not be able to attract the level of personnel needed for our business to succeed.
Economic conditions in the U.S. and worldwide could adversely affect our revenues.
Our revenues and operating results depend on the overall demand for our technologies and services. If the U.S. and worldwide economies weaken, either alone or in tandem with other factors beyond our control (including war, political unrest, shifts in market demand for our services, actions by competitors, etc.), we may not be able to maintain or expand the growth of our revenue.
We have significant debt and if we are unable to repay our debt when it becomes due, our business, financial condition and results of operations could be materially harmed.
At June 30, 2019, we had total debt obligations of $2,000,000 (“CNB Note”), and an aggregate of $0 available for borrowings under our revolving line of credit from City National Bank of Florida (“CNB”) which is guaranteed by our former CEO, Jay Nussbaum and his estate. Of this debt, $2,000,000 matured on August 2, 2019. On August 29, 2019, CNB extended the maturity date until August 2, 2020. In addition, to secure the Company’s obligations under the CNB Note, the Company entered into a security agreement in favor of CNB encumbering all of the Company’s accounts, inventory and equipment along with an assignment of a bank account the Company maintains at CNB with a balance of $120,000 (“Encumbered Assets”). Our level of indebtedness could have significant effects on our business, such as:
| ● | limiting our ability to borrow additional amounts to fund working capital, capital expenditures, acquisitions, debt service requirements, execution of our growth strategy and other purposes; |
| ● | requiring us to dedicate a portion of our cash flow from operations to pay interest on our debt, which would reduce availability of our cash flow to fund working capital, capital expenditures, potential acquisitions, execution of our growth strategy and other general corporate purposes; |
| ● | making us more vulnerable to adverse changes in general economic, industry and competitive conditions, in government regulation and in our business by limiting our ability to plan for and react to changing conditions; and |
| ● | placing us at a competitive disadvantage compared with our competitors that have less debt. |
We may not be able to generate sufficient cash flow from our operations to repay our indebtedness when it becomes due and to meet our other cash needs. If we or Jay Nussbaum or his estate, our guarantor on the revolving line of credit, are not able to pay our loan as it becomes due, CNB may foreclose on the Encumbered Assets as well as we may be required to pursue one or more alternative strategies, such as selling assets, refinancing or restructuring our indebtedness or selling additional debt or equity securities. We may not be able to refinance our debt or sell additional debt or equity securities or sell our assets on favorable terms, if at all, and if we must sell our assets or if CNB forecloses on the Encumbered Assets, we may negatively affect our ability to generate revenue.
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If we are unable to obtain additional funding when needed, our business operations will be harmed, and if we do obtain additional financing, our then existing shareholders may suffer substantial dilution.
We have historically required additional funds to continue operations and may again in the future upon maturity of the City National Bank of Florida revolving line of credit which matures on August 2, 2020 or sooner if our cash needs exceed the $0 currently available to us under these loan facilities. We do not have any contracts or commitments for additional funding, and there can be no assurance that financing will be available in amounts or on terms acceptable to us, if at all, if needed. The inability to obtain additional capital will restrict our ability to grow and may reduce our ability to conduct business operations. If we are unable to obtain additional financing to finance a revised growth plan, we will likely be required to curtail such plans or cease our business operations. Any additional equity financing may involve substantial dilution to our then existing shareholders.
Opportunities for expanded uses of our products in the United States are limited by federal laws and rulemaking.
The products we design and manufacture for use within the United States are limited by federal laws and rulemaking, including the new commercial drone regulations (Part 107) adopted by the FAA at the end of August 2016. Our ability to design, manufacture and release new products for use in the United States will be limited by federal law and regulations, which can be slow and subject to delays based on political turnover and disruptions in federal funding, among other reasons. The Part 107 rules limit the altitude, available airspace and weight of a drone and also the certification of remote pilots that can operate a drone for commercial purposes in the United States. We, or our customers, may seek waivers from the Part 107 rules for expanded operations; however, the processing of waivers is lengthy and uncertain. Political limits on the ability to issue new regulations could slow the growth of the aerostat and tethered drone market.
Misuse of our products or unmanned products manufactured by other companies could result in injury, damage and/or negative press that could depress the market for unmanned systems.
If any of our products are misused by our customers or their designees, or by the operators of other unmanned systems, in violation of Part 107 or other federal, state or local regulations could result in injuries to the operators or bystanders, damage to property and/or negative press that could result in a reduction in the market for aerostats or tethered drones in the future. The FAA, the press and the public have been closely monitoring the growth of unmanned systems in the United States. For instance, the FAA regularly publishes reports of drone sighting and reported drone strikes of manned aircraft. One or more incidents involving unmanned systems that results in injury or death of individuals, or damaged property could result in negative press that could put at risk current and future growth.
If product liability lawsuits are brought against us, our business may be harmed, and we may be required to pay damages that exceed our insurance coverage.
We may face liability claims related to the use or misuse of our products. These claims may be expensive to defend and may result in large judgments against us. Customers using our products could injure themselves or others or cause property damages for reasons that may or may not be related to our products. Any of these events could result in a claim of liability. Any such claims against us, regardless of their merit, could result in significant costs to defend or awards against us that could materially harm our business, financial condition or results of operations. In addition, any such claims against us could result in a distraction to management, decreased demand for our products, an adverse effect on our public reputation, and/or difficulties in commercializing our products. To date, we have not received notice of any product liability claims against us. We maintain total products liability insurance coverage of $2,000,000.
Although we maintain product liability insurance for claims arising from the use of our products at levels that we believe are appropriate, we may not be able to maintain our existing insurance coverage or obtain additional coverage on commercially reasonable terms for the use of our other products in the future. Also, our insurance coverage and resources may not be sufficient to satisfy any liability resulting from product liability claims, which could materially harm our business, financial condition or results of operations.
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Product liability claims could result in regulatory authority investigation of the safety or efficacy of our products, our manufacturing processes and facilities, our marketing programs, our internal safety reporting systems or our staff conduct. A regulatory authority investigation could also potentially lead to a recall of our products or more serious enforcement actions, limitations on the indications for which they may be used, or suspension or withdrawal of approval. Product liability claims could also result in investigation, prosecution or enforcement action by federal or state government agencies.
Our business and operations are subject to the risks of hurricanes, tropical storms, and other natural disasters.
Our corporate headquarters and manufacturing operations are located in Jacksonville, Florida, where major hurricanes, tropical storms, and other severe weather conditions have occurred. A significant natural disaster, such as a hurricane, tropical storm, or other severe weather storm could severely affect our ability to conduct normal business operations, and as a result, our future operating results could be materially and adversely affected. The Company was closed between August 30 and September 4, 2019 due to mandatory evacuation orders in Jacksonville, Florida pertaining to Hurricane Dorian; however, the hurricane did not have any adverse effect upon the Company.
Our future success depends on the continuing efforts of our key employees and our ability to attract, hire, retain and motivate highly skilled and creative employees in the future.
Our future success depends on the continuing efforts of our executive officers, our founders and other key employees, in particular to Daniyel Erdberg, our CEO and President, Kendall Carpenter, our Executive Vice President and Chief Financial Officer and Felicia Hess, a founder and our Chief Quality Officer. We rely on the leadership, knowledge and experience that our executive officers, founders and key employees provide. They foster our corporate culture, which we believe has been instrumental to our ability to attract and retain new talent. Any failure to attract new or retain key creative talent could have a material adverse effect on our business, financial condition and results of operations.
The market for talent in our key areas of operations is intensely competitive, which could increase our costs to attract and retain talented employees. As a result, we may incur significant costs to attract and retain employees, including significant expenditures related to salaries and benefits and compensation expenses related to equity awards, and we may lose new employees to our competitors or other companies before we realize the benefit of our investment in recruiting and training them.
Employee turnover, including changes in our management team, could disrupt our business. The loss of one or more of our executive officers, founders or other key employees, or our inability to attract and retain highly skilled and creative employees, could have a material adverse effect on our business, results of operations or financial condition.
Our officers, directors and principal shareholders own, and will continue to own after giving effect to this offering, a controlling interest in our voting stock and investors will not have any voice in our management, which could result in decisions adverse to our general stockholders.
Our officers, directors and principal shareholders, in the aggregate, beneficially own or have the right to vote approximately 76.5% of our outstanding common shares on a fully diluted basis, and will continue to beneficially own after giving effect to this offering (assuming no exercise of the over-allotment option and no exercise of the warrants forming part of the units and over-allotment option), approximately or have the right to vote approximately 60.0% of our outstanding common shares on a fully diluted basis. As a result, these stockholders, acting together, have the ability to control substantially all matters submitted to our stockholders for approval including:
| ● | election of our board of directors |
| ● | removal of any of our directors |
| ● | amendment of our Articles of Incorporation or Bylaws |
| ● | adoption of measures that could delay or prevent a change in control or impede a merger, takeover or other business combination involving us |
As a result of their ownership and positions, our officers and directors collectively are able to influence all matters requiring stockholder approval, including the election of directors and approval of significant corporate transactions. The interests of our officers may differ from the interests of the other stockholders, and they may influence decisions with which the other stockholders may not agree. Such decisions may be detrimental to our business plan and/or operations and they may cause our business to fail in which case you may lose your entire investment.
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We believe our corporate culture has contributed to our success and, if we are unable to maintain it as we grow, our business could be harmed.
We believe our corporate culture has been a key element of our success. However, as our organization grows, it may be difficult to maintain our culture, which could reduce our ability to attract and maintain new talent and operate effectively. The failure to maintain the key aspects of our culture as our organization grows could result in decreased employee satisfaction, increased difficulty in attracting top talent and increased turnover and could compromise the quality of our client service, all of which are important to our success and to the effective execution of our business strategy. Accordingly, if we are unable to maintain our corporate culture as we grow our business, this could have a material adverse effect on our business, results of operations or financial condition.
We may not have sufficient insurance coverage and an interruption of our business or loss of a significant amount of property could have a material adverse effect on our financial condition and operations.
We currently do not maintain any insurance policies against loss of key personnel. Although we do carry business interruption and product liability insurance, the limits might not be sufficient to cover every contingency or claim. If we lost key personnel or had unexpectedly high insurance claims, our business, financial performance and financial position may be materially and adversely affected.
We could become involved in claims or litigations that may result in adverse outcomes.
From time-to-time we may be involved in a variety of claims or litigations. Such proceeding may initially be viewed as immaterial but could prove to be material. Litigations are inherently unpredictable and excessive verdicts do occur. Given the inherent uncertainties in litigation, even when we can reasonably estimate the amount of possible loss or range of loss and reasonably estimable loss contingencies, the actual outcome may change in the future due to new developments or changes in approach. In addition, such claims or litigations could involve significant expense and diversion of management’s attention and resources from other matters.
Risks Relating to Our Common Stock, Our Warrants and the Offering
Once our common stock and warrants are listed on NASDAQ, there can be no assurance that we will be able to comply with NASDAQ’s continued listing standards.
As a condition to consummating this offering, our common stock and the warrants offered in this prospectus must be listed on the NASDAQ Capital Market or another national securities exchange. Accordingly, in connection with the filing of the registration statement of which this prospectus forms a part, we applied to list our common stock and warrants on the NASDAQ Capital Market under the symbols “DRNE” and “DRNEW”, respectively. Assuming that our common stock and warrants are listed and after the consummation of this offering, there can be no assurance any broker will be interested in trading our stock. Therefore, it may be difficult to sell your shares of common stock or warrants if you desire or need to sell them. Our underwriters are not obligated to make a market in our securities, and even if it makes a market, it can discontinue market making at any time without notice. Neither we nor the underwriters can provide any assurance that an active and liquid trading market in our securities will develop or, if developed, that such market will continue.
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Once our common stock and warrants are approved for listing on the NASDAQ Capital Market, there is no guarantee that we will be able to maintain such listing for any period of time by perpetually satisfying NASDAQ’s continued listing requirements. Our failure to continue to meet these requirements may result in our securities being delisted from NASDAQ.
The market price of our common stock and warrants is likely to be highly volatile because of several factors, including a limited public float.
The market price of our common stock has been volatile in the past and the market price of our common stock and our warrants is likely to be highly volatile in the future. You may not be able to resell shares of our common stock or our warrants following periods of volatility because of the market’s adverse reaction to volatility.
Other factors that could cause such volatility may include, among other things:
| ● | actual or anticipated fluctuations in our operating results; | |
| ● | the absence of securities analysts covering us and distributing research and recommendations about us; | |
| ● | we may have a low trading volume for a number of reasons, including that a large portion of our stock is closely held; |
| ● | overall stock market fluctuations; | |
| ● | announcements concerning our business or those of our competitors; | |
| ● | actual or perceived limitations on our ability to raise capital when we require it, and to raise such capital on favorable terms; | |
| ● | conditions or trends in the industry; | |
| ● | litigation; | |
| ● | changes in market valuations of other similar companies; | |
| ● | future sales of common stock; | |
| ● | departure of key personnel or failure to hire key personnel; and | |
| ● | general market conditions. |
Any of these factors could have a significant and adverse impact on the market price of our common stock and/or warrants. In addition, the stock market in general has at times experienced extreme volatility and rapid decline that has often been unrelated or disproportionate to the operating performance of particular companies. These broad market fluctuations may adversely affect the trading price of our common stock and/or warrants, regardless of our actual operating performance.
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Our common stock has in the past been a “penny stock” under SEC rules, and our warrants may be subject to the “penny stock” rules in the future. It may be more difficult to resell securities classified as “penny stock.”
In the past (including immediately prior to this offering), our common stock was a “penny stock” under applicable SEC rules (generally defined as non-exchange traded stock with a per-share price below $5.00). While our common stock (and trading warrants) will not be considered “penny stock” following this offering since they will be listed on the NASDAQ Capital Market, if we are unable to maintain that listing and our common stock and warrants are no longer listed on the NASDAQ Capital Market, unless we maintain a per-share price above $5.00, our common stock and warrants will become “penny stock.” These rules impose additional sales practice requirements on broker-dealers that recommend the purchase or sale of penny stocks to persons other than those who qualify as “established customers” or “accredited investors.” For example, broker-dealers must determine the appropriateness for non-qualifying persons of investments in penny stocks. Broker-dealers must also provide, prior to a transaction in a penny stock not otherwise exempt from the rules, a standardized risk disclosure document that provides information about penny stocks and the risks in the penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, disclose the compensation of the broker-dealer and its salesperson in the transaction, furnish monthly account statements showing the market value of each penny stock held in the customer’s account, provide a special written determination that the penny stock is a suitable investment for the purchaser, and receive the purchaser’s written agreement to the transaction.
Legal remedies available to an investor in “penny stocks” may include the following:
| ● | If a “penny stock” is sold to the investor in violation of the requirements listed above, or other federal or states securities laws, the investor may be able to cancel the purchase and receive a refund of the investment. | |
| ● | If a “penny stock” is sold to the investor in a fraudulent manner, the investor may be able to sue the persons and firms that committed the fraud for damages. |
These requirements may have the effect of reducing the level of trading activity, if any, in the secondary market for a security that becomes subject to the penny stock rules. The additional burdens imposed upon broker-dealers by such requirements may discourage broker-dealers from effecting transactions in our securities, which could severely limit the market price and liquidity of our securities. These requirements may restrict the ability of broker-dealers to sell our common stock or our warrants and may affect your ability to resell our common stock and our warrants.
Many brokerage firms will discourage or refrain from recommending investments in penny stocks. Most institutional investors will not invest in penny stocks. In addition, many individual investors will not invest in penny stocks due, among other reasons, to the increased financial risk generally associated with these investments.
For these reasons, penny stocks may have a limited market and, consequently, limited liquidity. We can give no assurance at what time, if ever, our common stock or our warrants will not be classified as a “penny stock” in the future.
If we fail to maintain effective internal control over financial reporting, the price of our securities may be adversely affected.
Our internal control over financial reporting have weaknesses and conditions that require correction or remediation. For the year ended December 31, 2018 and the quarter ended June 30, 2019, we identified a material weakness in our assessment of the effectiveness of disclosure controls and procedures. We did not effectively segregate certain accounting duties due to the small size of our accounting staff. We are dependent upon our Chief Financial Officer, who is knowledgeable and experienced in the application of U.S. Generally Accepted Accounting Principles, to maintain our disclosure controls and procedures and the preparation of our financial statements for the foreseeable future. We plan to increase the size of our accounting staff at the appropriate time for our business and its size to ameliorate our concern that we do not effectively segregate certain accounting duties, which we believe would resolve the material weakness in disclosure controls and procedures, but there can be no assurances as to the timing of any such action or that we will be able to do so.
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We are required to comply with certain provisions of Section 404 of the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley Act”) and if we fail to continue to comply, our business could be harmed, and the price of our securities could decline.
Rules adopted by the SEC pursuant to Section 404 of the Sarbanes-Oxley Act require an annual assessment of internal control over financial reporting, and for certain issuers an attestation of this assessment by the issuer’s independent registered public accounting firm. The standards that must be met for management to assess the internal control over financial reporting as effective are evolving and complex, and require significant documentation, testing, and possible remediation to meet the detailed standards. We expect to incur significant expenses and to devote resources to Section 404 compliance on an ongoing basis. It is difficult for us to predict how long it will take or costly it will be to complete the assessment of the effectiveness of our internal control over financial reporting for each year and to remediate any deficiencies in our internal control over financial reporting. As a result, we may not be able to complete the assessment and remediation process on a timely basis. In the event that our Chief Executive Officer or Chief Financial Officer determines that our internal control over financial reporting is not effective as defined under Section 404, we cannot predict how regulators will react or how the market prices of our securities will be affected; however, we believe that there is a risk that investor confidence and the market value of our securities may be negatively affected.
Our management team will have immediate and broad discretion over the use of the net proceeds from this offering and we may use the net proceeds in ways with which you disagree.
The net proceeds from this offering will be immediately available to our management to use at their discretion. We currently intend to use the net proceeds from this offering to fund working capital, manage the balance on the bank line of credit and general corporate purposes and possibly acquisitions of other companies, products or technologies. See “Use of Proceeds.” We have not allocated specific amounts of the net proceeds from this offering for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility in applying the net proceeds of this offering. You will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that the net proceeds will be invested in a way that does not yield a favorable, or any, return for us or our stockholders. The failure of our management to use such funds effectively could have a material adverse effect on our business, prospects, financial condition, and results of operation.
You will experience immediate and substantial dilution as a result of this offering and may experience additional dilution in the future.
You will incur immediate and substantial dilution as a result of this offering. After giving effect to the sale by us of up to $ 10,000,000 in units (of which our common stock forms a part) offered in this offering, at an assumed public offering price of $8.30 per unit, and after deducting the underwriters’ discounts and commissions and other estimated offering expenses payable by us, investors in this offering can expect an immediate dilution of $5.78 per share, or 69.6%, at the assumed public offering price. We also have a large number of outstanding stock options to purchase common stock with exercise prices that are below the public offering price of our common stock. To the extent that these options are exercised, you will experience further dilution.
Shares eligible for future sale may adversely affect the market.
From time to time, certain of our stockholders may be eligible to sell all or some of their shares of common stock by means of ordinary brokerage transactions in the open market pursuant to Rule 144 promulgated under the Securities Act, subject to certain limitations. In general, pursuant to Rule 144, non-affiliate stockholders may sell freely after six months, subject only to the current public information requirement. Affiliates may sell after six months, subject to the Rule 144 volume, manner of sale (for equity securities), current public information, and notice requirements. Of the approximately 2,765,613 (27,656,121 pre-reverse split) shares of our common stock outstanding as of June 30, 2019, approximately 358,558 (3,585,575 pre-reverse split) shares are tradable without restriction. Given the limited trading of our common stock, resale of even a small number of shares of our common stock pursuant to Rule 144 or an effective registration statement may adversely affect the market price of our common stock.
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Provisions of our articles of incorporation, as amended, and bylaws, as amended, may delay or prevent a takeover which may not be in the best interests of our stockholders.
Provisions of our articles of incorporation, as amended, and our bylaws, as amended, may be deemed to have anti-takeover effects, which include when and by whom special meetings of our stockholders may be called, and may delay, defer or prevent a takeover attempt. In addition, certain provisions of the Nevada Revised Statutes also may be deemed to have certain anti-takeover effects. Further, our amended and restated articles of incorporation, as amended, authorize the issuance of up to 100,000,000 shares of preferred stock with such rights and preferences as may be determined from time to time by our board of directors in their sole discretion. Our board of directors may, without stockholder approval, issue series of preferred stock with dividends, liquidation, conversion, voting or other rights that could adversely affect the voting power or other rights of the holders of our common stock.
We have never paid dividends on our common stock and have no plans to do so in the future.
Holders of shares of our common stock are entitled to receive such dividends as may be declared by our board of directors. To date, we have paid no cash dividends on our shares of common stock and we do not expect to pay cash dividends on our common stock in the foreseeable future. We intend to retain future earnings, if any, to provide funds for operations of our business. Therefore, any return investors in our common stock may have will be in the form of appreciation, if any, in the market value of their shares of common stock. See “Dividend Policy.”
We will indemnify and hold harmless our officers and directors to the maximum extent permitted by Nevada law.
Our Bylaws provide that we will indemnify and hold harmless our officers and directors against claims arising from our activities, to the maximum extent permitted by Nevada law. If we were called upon to perform under our indemnification agreement, then the portion of our assets expended for such purpose would reduce the amount otherwise available for our business.
We anticipate effecting a reverse stock split of our outstanding Common Stock prior to the effective date of the registration statement (of which this prospectus forms a part). However, the reverse stock split may not increase our stock price sufficiently while the stock is trading, and we may not be able to list our Common Stock on a national securities exchange in which case we will not be able to close this offering.
We expect that the Reverse Stock Split will increase the market price of our Common Stock while our stock is trading and enable us to meet the minimum market price requirement of the listing rules of a national securities exchange. However, the effect of a reverse stock split upon the market price of our Common Stock cannot be predicted with certainty, and the results of reverse stock splits by companies in similar circumstances have been varied. It is possible that the market price of our Common Stock following the reverse stock split will not increase sufficiently for us to be in compliance with the minimum market price requirement of a national securities exchange (in which case we will not be able to consummate this offering), or if it does, that such price will be sustained. If we are unable to meet the minimum market price requirement prior to this offering and we are unable to list our shares on a national securities exchange, we will not be able to complete this offering. Further, if following the listing, we are unable to maintain our stock price such that it falls below the minimum stock price required by the NASDAQ Capital Market, our shares may be delisted.
Even if the Reverse Stock Split achieves the requisite increase the market price of our Common Stock, there can be no assurance that we will be approved for listing on a national securities exchange or able to comply with other continued listing standards of a national securities exchange.
Even if the market price of our Common Stock increases sufficiently so that we comply with the minimum market price requirement, we cannot assure you that we will be able to comply with the other standards that we are required to meet in order to be approved for listing on a national securities exchange or maintain a listing of our Common Stock on such exchange. Our failure to meet these requirements prior to listing will result in the offering not occurring and our failure to meet these requirements following listing may result in our Common Stock being delisted from a national securities exchange.
The Reverse Stock Split may decrease the liquidity of the shares of our Common Stock.
The liquidity of the shares of our Common Stock may be affected adversely by the Reverse Stock Split given the reduced number of shares that will be outstanding following the Reverse Stock Split. In addition, the Reverse Stock Split may increase the number of shareholders who own odd lots (less than 100 shares) of our Common Stock, creating the potential for such shareholders to experience an increase in the cost of selling their shares and greater difficulty affecting such sales.
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If an active, liquid trading market for our warrants does not develop, you may not be able to sell your warrants quickly or at a desirable price.
The warrants forming a part of the units issued in this offering will be immediately exercisable and expire on the fifth anniversary of the date of issuance. The warrants will have an initial exercise price per share equal to $9.96. In the event that the stock price of our common stock does not exceed the exercise price of the warrants during the period when the warrants are exercisable, the warrants may not have any value.
There is no established trading market for the warrants sold in this offering, and the market for the warrants may be highly volatile or may decline regardless of our operating performance. We have applied for the warrants offered in this offering to be listed on the NASDAQ Capital Market under the symbol “DRNEW”. However, an active public market for our warrants may not develop or be sustained. We cannot predict the extent to which investor interest in our company will lead to the development of an active trading market in our warrants or how liquid that market might become. If a market does not develop or is not sustained, it may be difficult for you to sell your warrants at the time you wish to sell them, at a price that is attractive to you, or at all.
Holders of our warrants will have no rights as a common stockholder until they acquire our common stock.
Until you acquire shares of our common stock upon exercise of your warrants, you will have no rights with respect to our common stock. Upon exercise of your warrants, you will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs after the exercise date.
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We estimate that the net proceeds to us from the sale of our units in this offering will be $8,740,716, after deducting estimated underwriting discounts and commissions and offering expenses. Our net proceeds will increase by approximately $1,380,000 if the underwriters’ over-allotment option to purchase additional shares of common stock and/or warrants to purchase shares of common stock is exercised in full for shares of common stock.
We intend to use the net proceeds from this offering to fund working capital, manage the balance on the bank line of credit and general corporate purposes and possibly acquisitions of other companies, products or technologies.
The balance on the bank line of credit bears an interest rate at a variable rate equal to 1.0 percentage points over the Wall Street Journal Prime Rate payable monthly and matures on August 2, 2020.
This expected use of net proceeds from this offering represents our intentions based upon our current plans and business conditions. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering. We may find it necessary or advisable to use the net proceeds from this offering for other purposes, and we will have broad discretion in the application of net proceeds from this offering.
Pending our use of the net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities.
We have not paid any cash dividends on our common stock and do not currently anticipate paying cash dividends in the foreseeable future. The agreements into which we may enter in the future, including indebtedness, may impose limitations on our ability to pay dividends or make other distributions on our capital stock. Payment of future dividends on our common stock, if any, will be at the discretion of our board of directors and will depend on, among other things, our results of operations, cash requirements and surplus, financial condition, contractual restrictions and other factors that our board of directors may deem relevant. We intend to retain future earnings, if any, for reinvestment in the development and expansion of our business.
The following table shows:
| ● | Our capitalization as of June 30, 2019; and | |
| ● | On a pro forma basis, our unaudited capitalization as of June 30, 2019, as adjusted to reflect the receipt of the net proceeds from the sale by us in this offering of units, after deducting $1,259,284 in estimated underwriting discounts and commissions and estimated offering expenses payable by us. |
We derived this table from, and it should be read in conjunction with and is qualified in its entirety by reference to, our historical and unaudited pro forma consolidated financial statements and the accompanying notes included elsewhere in this prospectus. You should also read this table in conjunction with “Selected Historical Consolidated Financial and Operating Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
| As of June 30, 2019 | ||||||||
| Actual | As Adjusted (1) | |||||||
| (unaudited) | ||||||||
| Cash and cash equivalents | $ | 675,772 | $ | 9,416,488 | ||||
| Stockholders’ equity: | ||||||||
| Common stock, $0.0001 par value; 300,000,000 shares authorized, and 2,755,613 (27,556,121 pre-reverse split) and shares issued and outstanding on an actual basis, and Preferred stock, $0.0001 par value 100,000,000 shares authorized and 0 shares issued and outstanding, respectively | 2,756 | 3,961 | ||||||
| Additional paid-in capital | 41,612,671 | 50,349,426 | ||||||
| Accumulated deficit | (39,521,450 | ) | (39,521,450 | ) | ||||
| Total stockholders’ equity | 2,093,977 | 10,831,937 | ||||||
| Total capitalization | $ | 2,143,922 | $ | 10,881,882 | ||||
| (1) | The number of shares of common stock to be outstanding after the offering is based on 2,755,613 (27,556,121 pre- reverse split), which is the number of shares outstanding on October 11, 2019, assumes no exercise by the underwriters of their option to purchase up to an additional 180,722 shares of common stock and warrants to purchase 180,722 shares of common stock to cover over-allotments, if any, and excludes: |
| ● | 1,394,500 (13,945,000 pre-reverse split) shares of our common stock issuable upon exercise of outstanding stock options at a weighted average exercise price of $6.10 ($0.61 pre-reverse split) per share as of October 11, 2019; |
| ● | 227,000 (2,270,000 pre-reverse split) shares of our common stock issuable upon exercise of outstanding warrants at a weighted average exercise price of $6.70 ($0.67 pre-reverse split) per share as of October 11, 2019; and | |
| ● | 1,204,819 shares of common stock issuable upon the full exercise of the warrants (forming part of the units) offered hereby. |
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MARKET PRICE FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Market Information
Our common stock is presently quoted on the OTCQB, operated by OTC Markets Group, under the symbol “DRNE”. At present, there is a very limited market for our common stock. The OTC Market is a network of security dealers who buy and sell stock. The dealers are connected by a computer network that provides information on current “bids” and “asks”, as well as volume information. Prior to this offering, there has been no public market for our warrants on the OTC Markets or any other trading market.
We have applied to list our common stock and warrants on The NASDAQ Capital Market under the symbols “DRNE” and “DRNEW,” respectively. The approval of our listing on the NASDAQ Capital Market is a condition of closing this offering. No assurance can be given that our application will be accepted.
The following table sets forth the range of high and low closing bid quotations for our common stock for each of the periods indicated as reported by the OTCQB. These quotations reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions. Prices in the tables below have been presented to reflect the assumed Reverse Stock Split of our outstanding shares of common stock as well as the pre-reverse stock split prices.
Fiscal Year Ended December 31, 2017
| Post-Reverse | Post-Reverse | Pre-Reverse | Pre-Reverse | |||||||||||||
| High | Low | High | Low | |||||||||||||
| Fiscal Quarter Ended: | ||||||||||||||||
| March 31, 2017 | $ | 29.90 | $ | 21.70 | $ | 2.99 | $ | 2.17 | ||||||||
| June 30, 2017 | $ | 22.70 | $ | 13.50 | $ | 2.27 | $ | 1.35 | ||||||||
| September 30, 2017 | $ | 14.50 | $ | 7.10 | $ | 1.45 | $ | 0.71 | ||||||||
| December 31, 2017 | $ | 16.50 | $ | 8.90 | $ | 1.65 | $ | 0.89 | ||||||||
Fiscal Year Ended December 31, 2018
| Post-Reverse | Post-Reverse | Pre-Reverse | Pre-Reverse | |||||||||||||
| High | Low | High | Low | |||||||||||||
| Fiscal Quarter Ended: | ||||||||||||||||
| March 31, 2018 | $ | 12.00 | $ | 7.00 | $ | 1.20 | $ | 0.70 | ||||||||
| June 30, 2018 | $ | 9.00 | $ | 6.80 | $ | 0.90 | $ | 0.68 | ||||||||
| September 30, 2018 | $ | 7.50 | $ | 6.10 | $ | 0.75 | $ | 0.61 | ||||||||
| December 31, 2018 | $ | 6.90 | $ | 4.70 | $ | 0.69 | $ | 0.47 | ||||||||
Fiscal Year Ended December 31, 2019
| Post-Reverse | Post-Reverse | Pre-Reverse | Pre-Reverse | |||||||||||||
| High | Low | High | Low | |||||||||||||
| Fiscal Quarter Ended: | ||||||||||||||||
| March 31, 2019 | $ | 20.00 | $ | 4.50 | $ | 2.00 | $ | 0.45 | ||||||||
| June 30, 2019 | $ | 11.50 | $ | 7.20 | $ | 1.15 | $ | 0.72 | ||||||||
| September 30, 2019 | $ | 11.30 | $ | 6.00 | $ | 1.13 | $ | 0.60 | ||||||||
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On October 9, 2019, the closing price for our common stock on the OTCQB was $8.30 ($0.83 pre-reverse split) per share with respect to an insignificant volume of shares.
The volume of shares traded on the OTCQB was insignificant and therefore, does not represent a reliable indication of the fair market value of these shares.
Holders of Common Stock
As of October 11, 2019, there were approximately 128 record holders of our common stock. The number of record holders does not include beneficial owners of common stock whose shares are held in the names of banks, brokers, nominees or other fiduciaries.
We have not paid any cash dividends on our common stock and do not currently anticipate paying cash dividends in the foreseeable future. We intend to retain future earnings, if any, for reinvestment in the development and expansion of our business.
If you invest in our units (comprised of our common stock and warrants) in this offering, your interest will be diluted to the extent of the difference between the public offering price per share of common stock (which forms a part of a unit) and the pro forma net tangible book value per share of our common stock immediately after this offering.
The net tangible book value of our common stock as of June 30, 2019 was $1,337,814 or approximately $0.49 per share after giving pro forma effect to the Reverse Stock Split of our outstanding common stock. Net tangible book value per share represents our total tangible assets less our total tangible liabilities, divided by the number of shares of common stock.
Net tangible book value dilution per share of common stock in each unit to new investors represents the difference between the amount per share of common stock in each unit paid by purchasers in this offering and the pro forma net tangible book value per share of our common stock immediately after the completion of this offering, after giving pro forma effect to the Reverse Stock Split of our outstanding common stock. After giving effect to our issuance and sale of units in this offering at the assumed public offering price of $8.30 per unit, and after deducting estimated underwriting discounts and commissions and estimated offering expenses, our pro forma net tangible book value as of June 30, 2019 would have been $2.52 per share after giving pro forma effect to the Reverse Stock Split of our outstanding common stock. This represents an immediate increase in net tangible book value of $2.03 per share to existing stockholders and an immediate dilution in net tangible book value of $5.78 per share to purchasers of units in this offering, as illustrated in the following table:
| Assumed public offering price per unit | $ | 8.30 | ||||||
| Net tangible book value per share as of June 30, 2019 | $ | 0.49 | ||||||
| Increase in net tangible book value per share attributable to new investors | $ | 2.03 | ||||||
| Less: pro forma net tangible book value per share after giving effect to the offering | $ | 2.52 | ||||||
| Immediate dilution in net tangible book value per share to new investors | $ | 5.78 |
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The foregoing illustration also does not reflect the dilution that would result from the exercise of any of the warrants sold in the offering.
The following table sets forth, as of June 30, 2019, the assumed number of shares of common stock purchased from us, the total consideration paid to us and the average price per share paid by existing stockholders and to be paid by new investors purchasing units (of which shares of common stock form a part) in this offering, after giving pro forma effect to the new investors in this offering at the assumed public offering price of $8.30 per unit, together with the total consideration paid an average price per share paid by each of these groups, before deducting underwriting discounts and commissions and estimated offering expenses.
| Shares Purchased | Total Consideration | Average Price | ||||||||||||||||||
| Number | Percent | Amount | Percent | per Share | ||||||||||||||||
| Existing stockholders | 2,755,613 | 69.6 | % | $ | 41,615,427 | 80.6 | % | $ | 15.10 | |||||||||||
| New investors | 1,204,819 | 30.4 | % | $ | 10,000,000 | 19.4 | % | $ | 8.30 | |||||||||||
| Total | 3,960,432 | 100.0 | % | $ | 51,615,427 | 100.0 | % | $ | 13.03 | |||||||||||
If the underwriters’ over-allotment option is exercised in full for shares of common stock at the assumed offering price, the number of shares held by new investors will increase to 1,385,541 (assuming no exercise of the warrants), or approximately 33.5% of the total number of shares of common stock outstanding after this offering and the shares held by existing stockholders will be 2,755,613 but the percentage of shares held by existing stockholders will decrease to 66.50% of the total shares outstanding.
To the extent that the underwriters’ over-allotment option is exercised or any warrants or options are exercised, there will be further dilution to new investors.
The foregoing discussion and tables above do not give effect to the dilution that would result from 1,621,500 (16,215,000 pre-reverse split) shares of our common stock issuable upon the exercise of our issued and outstanding warrants at an average exercise price of $6.70 ($0.67 pre-reverse split) per share and options at an average exercise price of $6.10 ($0.61 pre-reverse split) per share.
Business Overview
We design, develop, market, sell and provide logistical services for specialized tethered aerial monitoring and communications platforms serving national defense and security customers for use in applications including intelligence, surveillance and reconnaissance (“ISR”) and communications. We focus primarily on the development of a tethered aerostat known as the Winch Aerostat Small Platform (“WASP”) which is principally designed for military and security applications where they can provide secure and reliable aerial monitoring for extended durations while being tethered to the ground via a high strength armored tether.
We have steadfastly pursued a vision that rapid, persistent, mobile access to altitude is a force multiplier for military and national security operations. Our unique WASP technology fills what we believe to be significant gaps in the marketplace between the expensive military drones and large, non-mobile aerostat systems.
As a result of recent capital contributions from a select group of management and non-management investors and the elimination of a majority of our outstanding debt, we believe we are better able to position our business to seize opportunities that lay ahead. This investment also allowed us to provide much-needed increased production capacity, through a strategic relationship with an established ISO 9001-certified manufacturer and new production in Florida through the lease of an additional facility.
Highlighted by a $3.8 million WASP award, followed by $1.1 million award for WASP Lite systems and a recent contract valued at approximately $1.7 million gross revenue from the prime contractor as a follow-on to the $3.8 million contract awarded in December 2018, we have announced in excess of approximately $6.6 million gross revenue in new business in the first six months of 2019. Assuming receipt of this revenue, this will represent a 144% increase over the approximately $2.7 million gross revenue reported for the entire twelve months of 2018. These awards support our belief that the WASP is well positioned to address the challenges facing tier-one end users, including the U.S. Department of Defense and the Department of Homeland Security.
Organization
Drone Aviation Holding Corp. has two wholly owned subsidiaries: Lighter Than Air Systems Corp. (“LTAS”) and Drone AFS Corp. (“AFS”). Drone Aviation Holding Corp. was incorporated in Nevada on April 17, 2014, as a wholly owned subsidiary of MacroSolve, Inc., an Oklahoma corporation (“MacroSolve”), and effective April 30, 2014, in order to consolidate our operations into an entity incorporated in Nevada, MacroSolve merged with and into us. On June 3, 2014, we acquired Drone Aviation Corp. through a share exchange transaction, and on March 26, 2015, Drone Aviation Corp. merged with and into us. As a result of the share exchange and merger with Drone Aviation Corp., we acquired Drone Aviation Corp.’s subsidiary, LTAS. AFS became our subsidiary upon its formation on July 9, 2015.
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Products
WASP TACTICAL AEROSTATS
The Company’s core aerostat products are designed to provide real-time, semi-persistent situational awareness to various military and national security customers such as the Department of Defense (DoD) and units of the Department of Homeland Security (DHS) such as the Customs and Border Protection (CBP) to improve security at the nation’s ports and borders. The WASP tethered aerostat system provides customers with tactical, highly mobile and cost-effective aerial monitoring and communications capabilities in remote or austere locations where existing infrastructure is lacking or not accessible. Current WASP products include the WASP tactical aerostat and WASP Lite, a rapidly deployable, compact aerostat system. WASP aerostats are either self-contained on a trailer that can be towed by a military all-terrain vehicle, or “MATV,” or mine resistant ambush protected vehicle (“MRAP”) or other standard vehicle, operated from the bed of a pickup truck, UTV or mounted to a building rooftop. They are designed to provide semi-persistent, mobile, real-time day/night high definition video for intelligence, surveillance and reconnaissance (ISR), detection of improvised explosive devices, border security and other governmental and civilian uses. We believe that all our products can also be utilized for disaster response missions by supporting two-way and cellular communications and acting as a repeater or provider of wireless networking.
Both the WASP and WASP Lite aerostat systems employ a tethered envelope filled with helium gas for lift and carry either a stabilized ISR or communications payload, portable ground control station and a datalink between the ground station and the envelope. Hovering between 500 and 1,500 feet above the ground, the systems provide surveillance, communications and communications capabilities with relatively low acquisition and operating costs. The systems require an operational crew of a minimum of two personnel, relatively simple maintenance procedures, and feature quick retrieval and helium top-off for re-inflation.
| ● | The WASP is a mobile, tactical-sized aerostat capable of carrying a variety of payloads in support of military operations helping troops in the field gain a tactical edge while communicating over greater distances. The WASP leverages aerostat technology to elevate network payloads up to 130 pounds to an advantaged height of up to 1,500 feet, to enable persistent network connectivity while reducing risk to units conducting missions. U.S. Army WASP tactical aerostats previously acquired from us have successfully completed a number of field tests and exercises including the U.S. Department of Defense (“DoD”) CyberQuest, Enterprise Challenge, Storm Force, and various Army Network Integration Evaluations (NIE), which allows the U.S. Government to evaluate, among other things, the WASP’s ability to provide secure communications and capture and relay real-time, high definition video to various handheld devices, tablet computers and other deployed systems. In October 2016, we were awarded contracts from a prime contractor to provide a U.S. Military customer with integrated advanced communication solutions and optical payloads into their WASP aerostats which were delivered in March 2017. In October 2017, we received an award in excess of $800,000 gross revenue from a prime contractor for a multi-mission capable WASP, including secure voice and data network range extension, from an existing DoD customer, which was delivered in February 2018. In March 2018, we received our largest single DoD contract award to date for approximately $1.7 million gross revenue from a prime contractor for a multi-mission capable tactical WASP. The March 2018 order, which was delivered in October 2018, was the third repeat order awarded to us for WASP as the result of a growing number of successful international military deployments. In July 2018, we entered into an exclusive teaming agreement with a U.S. Government prime contractor which is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security (“DHS”), Customs and Border Protection (“CBP”). In December 2018, the prime contractor awarded us a subcontract valued at approximately $3.8 million gross revenue for six WASP aerostat systems, which award was announced in January 2019. These WASP powered surveillance systems are expected to be deployed at a CBP Border Patrol Sector on the southern border of the United States beginning in September 2019. There are 20 Border Patrol Sectors along U.S. borders, 9 of which are located along the U.S. Southern border. We have begun production of the initial units at our facilities in Florida and at our ISO 9001-certified manufacturing strategic partner’s facility. Deliveries began late in the second quarter of 2019 and will continue throughout 2019. In June 2019, we were awarded a contract valued at approximately $1.7 million gross revenue from the prime contractor as a follow-on to the $3.8 million gross revenue contract such prime contractor awarded us in December 2018. We are working closely with the prime contractor to explore additional product and services opportunities in DHS and CBP under our exclusive teaming agreement. |
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| ● | The WASP Lite is a recently developed system that utilizes the proven fieldability of our larger WASP aerostat system incorporated into a small footprint design. It is a compact, non-trailer based, cost effective aerostat system that is highly mobile and can be setup and deployed virtually anywhere from the bed of a pickup truck to a rooftop while anchored or moored. WASP Lite can move while deployed up to 40 mph and supports a wide range of lighter payloads including ISR, communications, and signal intelligence (SIGINT). In May 2019, the U.S. Army selected Drone Aviation’s enhanced WASP Lite Aerostat System for multi-unit award valued at approximately $1.1 million gross revenue. Deliveries under this award commenced in July 2019. |
Market and Product Strengths
The demand for our lighter-than-air (LTA) advanced tethered aerostats and tethered drones has grown significantly over the last several years driven by the increasing need for aerial-based, real-time situational awareness by the military and those responsible for national security operations. Also contributing to the growth in aerial monitoring is technology advances in visual monitoring and communications payloads such as electro-optical camera systems and waveform radios which are delivering enhanced capabilities in smaller, lighter packages.
In terms of the military market, in response to the changing nature of modern warfare, ground forces today are smaller and nimbler. Most importantly, these units are now becoming interlinked in a “networked battlefield” whereby information collected from a growing number of sensors – satellites, manned aircraft and drones and soldiers on the ground - are all aggregated and shared in real-time.
In line with the 2020 U.S. Defense Budget Request, “Army modernization is essential to build a more lethal force foundational for the Joint Force” which states modernization of the Army Network as one of six priorities. The Army Network is defined in the budget request as “a tactical communications network that enables the Army to fight cohesively in any environment where the electromagnetic spectrum is denied or degraded. The network includes electronic warfare; information technology; and assured position, navigation, and timing systems and software with a low signature.” Further evidence of this commitment can be seen through various technology integration and evaluation programs like the Army’s Enterprise Challenge and Network Integration Evaluations (NIEs). Through these programs, the Army is seeking innovative ways to collect, aggregate and disseminate critical information and data across the battlefield.
In national security operations, specifically, those conducted by the DHS and in-line with the priorities stated by the President of the United States and current administration in Washington, border security is a critical area for investment. Based upon news reports and statements directly from the DHS and CBP, the situation at the southern border of the U.S. and Mexico is in crisis as surging border crossings of immigrants and increasing levels of illegal activities such as drug traffic are surpassing available security resources.
The challenges faced by the CBP are many since the southern border with Mexico stretches over 1,950 miles from California to Texas, most of which is a barren, austere environment dominated by rough and dusty terrain and is subject to high heat and windy conditions. Currently, CBP monitoring of the border is conducted by agents on foot, on horses, in vehicles, planes, helicopters, and boats. Aerial surveillance on the border is currently conducted via helicopters, aircraft, and drones, however, these platforms are limited due to a lack of persistence and costly operation. Additionally, the CBP operates a network of large aerostats– Tethered Aerostat Radar System (TARS), Persistent Threat Detection System (PTDS), and Persistent Ground Surveillance Systems (PGSS) – however, these systems are limited due to their large size, cost and fixed installation requirements, leaving vast border areas unmonitored.
To address the situation, the U.S. government has allocated significant resources and DHS budget to increase manpower and improve border security via fencing and the adoption of “smart wall technology” including aerial monitoring as well as communications and sensors.
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The potential markets for our systems on a stand-alone basis and/or combined with other payloads relates to the following applications, among others:
Governmental Markets:
| ● | International, federal, state and local governments and agencies thereof, including DoD, U.S. Drug Enforcement Agency, U.S. Homeland Security, U.S. Customs and Border Protection, U.S. Environmental Protection Agency, U.S. Department of State, U.S. Federal Emergency Management Agency, U.S. and state Departments of Transportation, penitentiaries, and police forces; | |
| ● | Military, including the Army, Marines, National Guard, Navy and U.S. Air Force installations; | |
| ● | Intelligence community, including the United States Special Operations Forces; | |
| ● | Border security monitoring, including U.S. Homeland Security, to deter and detect illegal entry; | |
| ● | Drug enforcement along U.S. borders; | |
| ● | Monitoring environmental pollution and sampling air emissions; and | |
| ● | Vehicle traffic monitoring by state and local law enforcement agencies. |
Commercial Markets:
| ● | TV and media production mobile communications systems, expanding on-site reporting capabilities to include aerial videography and photography; | |
| ● | Agriculture monitoring, including monitoring crop health and fields monitoring to reduce costs and increase yields; | |
| ● | Security for large events, including crowd management; | |
| ● | Natural disaster instant infrastructure to support first responders; | |
| ● | Oil pipeline monitoring and exploration; and | |
| ● | Atmospheric and climate research. |
Distribution
We primarily sell our products through distribution agreements with firms such as Atlantic Diving Supply, Inc. (ADS Inc.), a leading value-added logistics and supply chain solutions provider that serves the U.S. military, federal, state and local government organizations, law enforcement agencies, first responders, partner nations and the defense industry. In addition, we sell our products through several prime contractors and our products are included in the U.S. Government’s GSA Schedule, which allows government customers to directly negotiate and acquire products and services from commercially listed suppliers.
Competition and Market Advantage
We believe the current market competitors to the WASP aerostat system include a large number of companies ranging from small “mom and pop” tethered aerostat and balloon companies to large defense contractors, including TCOM, Raytheon, Lockheed Martin, ISL, ILC Dover, Compass Systems, Raven Aerostar, Carolina Unmanned Vehicles, American Blimp Corporation, and RT Aerostat Systems, Inc., the American subsidiary of Israeli aerostat company RT LTA. We believe there are numerous commercial drone companies, such as DJI and Parrot, offering free flying drones for pleasure and commercial use, as well as many larger drone manufactures, such as Northrop Grumman, AeroVironment, Inc. and Boeing, offering military grade free flying drones to the U.S. Government, which could compete with the WASP. There are fewer commercial grade tethered drone competitors for our WATT tethered drone system that remain tethered to the ground via a high strength armored tether, including Aria Insights (formerly Cyphy Works Inc.) located in Danvers, MA, Elistair located in Lyon, France, Hoverfly Technologies, Inc. located in Orlando, Florida, and Skysapience located in Yokneam, Israel.
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Many of our LTA aerostat competitors have received considerable funding from government or government-related sources to develop and build LTA aerostats. Most of these organizations and many of our other competitors have greater financial, technical, manufacturing, marketing and sales resources and capabilities than we do. We anticipate increasing competition as a result of defense industry consolidation, which has enabled companies to enhance their competitive position and ability to compete against us. In addition, other companies may introduce competing aerostats or solutions based on alternative technologies that may adversely affect our competitive position. As a result, our products may become less or non-competitive or obsolete. For further discussion of certain risks relating to competition, see “Risk Factors” of this prospectus.
We believe that the principal competitive factors in the markets for the Company’s tethered systems, specifically, aerostats, include product performance, features, acquisition cost, lifetime operating cost, including maintenance and support, ease of use, integration with existing equipment, size, mobility, quality, reliability, customer support, brand and reputation.
Our proprietary and recently patented tethering technology, in particular, our tension control winch system, is an important competitive differentiator in the market. The winch systems utilized in our products have undergone extensive testing and continued refinement through coordination with customers, including the U.S. Army. To date, our products have been purchased through our prime contractors by a number of key customers including the U.S. Army and DHS/CBP.
Our products provide critical observation and communication capabilities serving the increased demand for ISR and communications, including real-time tactical reconnaissance, tracking, combat assessment and geographic data, while reducing the risks to our troops in theatre. Finally, in a highly constrained fiscal environment, we believe the typically lower acquisition and use/maintenance costs of LTA advanced aerostats make them more appealing compared to their heavier than air manned or larger LTA unmanned system alternatives.
Technology, Research and Development
We conduct the development, commercialization and manufacturing of our products in-house at our facilities in Jacksonville and Holly Hill, Florida.
Our research and development efforts are largely focused on the LTA aerostat systems, including developing miniature WASP systems and the management and recovery of helium gas, software development, electronic energy systems, and electronic data transmission systems. We have developed an aerostat system called WASP LITE for use in commercial or governmental applications which do not require the same level of durability and ruggedness as the WASP, and we continue to work on different models with different payloads for various applications.
For the six months ended June 30, 2019 and for the years ended December 31, 2018 and 2017, we spent $53,971, $107,015 and $351,768, respectively, on research and development activities. Research and development expenditures are not borne directly by customers nor are the costs accounted for in our pricing models. Throughout the remainder of 2019, we do not anticipate significant increases in research and development expenses from levels reported in 2018 as we focus activities on continual, incremental improvement to the WASP platform in order to increase its features and capabilities.
Strategic Partners
We are party to several agreements with strategic partners and distributors to assist us with the marketing and sales of various products, as we currently have limited in-house sales capabilities. Current relationships include:
| ● | A sales and distribution working relationship with U.S. government prime contractor ADS Inc.; and | |
| ● | An exclusive teaming agreement with a non-affiliate U.S. government prime contractor that is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security, Customs and Border Protection. |
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Intellectual Property
On September 18 and 19, 2014, we filed provisional patent application numbers “62/052,289” and “62/052,946” entitled “Tethered Portable Aerial Media broadcast System” based on the tethered drone system. On September 18, 2015, we filed a utility patent application claiming a priority date of the two provisional patent applications and having application Serial Number “14858467” entitled “Apparatus and Methods for Tethered Aerial Platform and System.” On July 7, 2015, we filed a provisional patent application number “62/189,341” entitled “Apparatus, Methods and System for Tethered Aerial Platform.” On September 20, 2016, the United States Patent and Trademark Office (“USPTO”) issued patent number 9,446,858 entitled “Apparatus and methods for tethered aerial platform and system.” This new patent on our electric tethered aerial platform (“ETAP”) technologies covers the core systems currently incorporated into the WATT and BOLT products.
On December 5, 2016, we filed provisional patent application number “62/430,195” entitled “Converting an Onboard Battery Powered Drone to a Ground Powered Tethered Drone”. On December 5, 2017, we filed a non-provisional patent application number “15/832,209” entitled “System for Converting a Safeguarded Free Flight Onboard Battery-Powered Drone to a Ground-Powered Tethered Drone”. On August 26, 2019, we received a Notice of Allowance and are currently awaiting the issuance and the patent.
On April 19, 2016, we filed an application for registration of the trademark “Taming Altitude”. On August 7, 2018, the USPTO issued trademark number 5,532,648 entitled “Taming Altitude”.
In addition, the Company’s intellectual property portfolio includes an exclusive commercial license to vision-based navigation and advanced autonomous flight management software that it acquired in 2015 and exclusive commercial licenses to a number of unmanned vehicle technologies developed by Georgia Tech Research Corporation, including “GUST” (Georgia Tech UAV Simulation Tool) autopilot system.
Our success and ability to compete depends in part on our ability to develop and maintain our intellectual property and proprietary technology and to operate without infringing on the proprietary rights of others. As we continue the development of our aerial products, we expect that we will rely on patents, trade secrets, copyrights, trademarks, non-disclosure agreements and other contractual provisions. We have also registered the trademark “Blimp in a Box.” In certain cases, when appropriate, we opt to protect our intellectual property through trade secrets as opposed to filing for patent protection in order to preserve confidentiality. All of our employees are subject to non-disclosure agreements and other contractual provisions to establish and maintain our proprietary rights. For further discussion of risks relating to intellectual property, see “Risk Factors” of this prospectus. For further discussion about the intellectual property rights and licenses and minimum royalties, see Note 14 – Commitments and Contingencies in the notes to 2018 audited financial statements.
Dependence on a Few Customers and Regulatory Matters
We believe there is a large, growing market for our tethered aerial products, but anticipate that the majority of our revenue will be derived from our LTA aerostat products sales, at least in the foreseeable future, which will come from U.S. Government and Government-related entities, including the DHS and other departments and agencies. Government programs that we may seek to participate in compete with other programs for consideration during Congress’s budget and appropriations hearings and may be affected by changes not only in political power and appointments, but also general economic conditions and other factors beyond our control. Reductions, extensions or terminations in a program that we are seeking to participate in or overall defense spending or delays in Government funding such as occurred in late December 2018 which shutdown certain departments and agencies, could adversely affect our ability to generate revenues and realize any profits. We cannot predict whether potential changes in security, defense and intelligence priorities will afford opportunities for our business in terms of research and development or product contracts, but any reduction in government spending on such programs could negatively impact our ability to generate revenues.
We have registered as a contractor with the U.S. Government and are required to comply with and will be affected by laws and regulations relating to the award, administration and performance of U.S. Government contracts. Government contract laws and regulations affect how we will do business with customers, and in some instances, will impose added costs on our business. A violation of specific laws and regulations could result in the imposition of fines and penalties, the termination of any then existing contracts, or the inability to bid on future contracts. For further discussion of the risks relating to U.S. Government contracts and FAA rules and regulations, see “Risk Factors” of this prospectus.
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During fiscal years ended 2018 and 2017, we received a substantial portion of our revenues from a limited number of customers, and the loss of, or a significant reduction in usage by, one or more of our major customers would result in lower revenues. For further discussion about our dependence on a few major customers see Note 15 – Concentrations in the notes to the 2018 audited financial statements.
International sales of our products may also be subject to U.S. laws, regulations and policies like the U.S. Department of State restrictions on the transfer of technology, International Traffic in Arms Regulations (“ITAR”) and other export laws and regulations and may be subject to first obtaining licenses, clearances or authorizations from various regulatory entities. Although we are not currently pursuing international sales, we may deploy working capital towards expansion into foreign markets. This may limit our ability to sell our products abroad and the failure to comply with any of these regulations could adversely affect our ability to conduct business and generate revenues as well as increase our operating costs. Our products may also be subject to regulation by the National Telecommunications and Information Administration and the Federal Communications Commission, which regulate wireless communications.
Sources and Availability of Components
Certain materials and equipment for our products are custom made for those products and are available only from a limited number of suppliers. Failure of a supplier could cause delays in delivery of the products if another supplier cannot promptly be found or if the quality of such replacement supplier’s components is inferior or unacceptable. For further discussion of the risks relating to sources and availability of components, see “Risk Factors” of this prospectus.
Corporate History
Drone Aviation Holding Corp. was incorporated in Nevada on April 17, 2014, as a wholly owned subsidiary of MacroSolve, Inc., an Oklahoma corporation (“MacroSolve”), and effective April 30, 2014, in order to consolidate our operations into an entity incorporated in Nevada, MacroSolve merged with and into us. On June 3, 2014, we acquired Drone Aviation Corp. through a share exchange transaction, and on March 26, 2015, Drone Aviation Corp. merged with and into us. As a result of the share exchange and merger with Drone Aviation Corp., we acquired Drone Aviation Corp.’s subsidiary, LTAS. AFS became our subsidiary upon its formation on July 9, 2015.
Our authorized capital stock consists of 400,000,000 shares, of which 300,000,000 are shares of common stock, $0.0001 par value per share, and 100,000,000 are shares of preferred stock, $0.0001 par value per share. As of October 11, 2019, there were 2,755,613 (27,556,121 pre-reverse split) shares of common stock outstanding and no shares of preferred stock outstanding.
The Board of Directors and shareholders holding a majority of the Company’s voting capital approved and adopted the 2015 Equity Incentive Plan (the “2015 Plan”) on September 4, 2015 and October 1, 2015, respectively. At the annual shareholder meeting on December 6, 2016, shareholder’s approved the 2015 Plan and an amendment to the plan to (i) increase the number of shares of our common stock with may be granted under the plan from 25,000 (250,000 pre-reverse split) to 88,300 (883,000 pre-reverse split) and (ii) reduce the automatic increase in the Share Limit provided for in Section 7.1.(b) of the 2015 Plan from 20% to 10% with such amount rounded down to the nearest 100 (1,000 pre-reverse split) shares.
On October 29, 2015, we effected a 1-for-40 reverse stock split of our issued and outstanding common stock. As a result of the reverse stock split, every 40 shares of our pre-reverse split common stock was combined and reclassified into one share of our common stock, and fractional shares were rounded up to the next highest number of whole shares of our common stock.
On September 29, 2016, the Company issued a convertible promissory note (the “Convertible Promissory Notes Series 2016”) which was due October 1, 2017 in the aggregate principal amount of $3,000,000 in a private placement to the former Chairman of the Board and the Chairman of the Strategic Advisory Board of the Company, both of whom are greater than 10% shareholders of the Company. On December 21, 2018, the Company issued 617,742 (6,177,411 pre-reverse split) shares of common stock to the note holders in full settlement of the $3,000,000 principal balance and $88,705 accrued interest.
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During the year ended December 31, 2016, the Company issued a net total of 355,664 (3,556,635 pre-reverse split) shares of common stock as follows:
| (a) | On January 12, 2016, the Company issued 250 (2,500 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,000 shares of Series A preferred stock. |
| (b) | On January 12, 2016, the Company issued 18,347 (183,468 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 73,387 shares of Series C preferred stock. |
| (c) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series D preferred stock. |
| (d) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,999,998 shares of Series F preferred stock. |
| (e) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series G preferred stock. |
| (f) | On April 27, 2016, the Company issued 10,000 (100,000 pre-reverse split) shares of common stock to Lt. Gen. Michael T. Flynn, a newly appointed director. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. General Flynn forfeited 6,667 (66,667 pre-reverse split) unvested shares and disclaimed 3,333 (33,333 pre-reverse split) vested shares. |
| (g) | On April 27, 2016, the Company issued an aggregate of 115,000 (1,150,000 pre-reverse split) shares of common stock to Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, and Kevin Hess pursuant to stock award agreements. |
| (h) | On May 2, 2016, the Company issued 15,000 (150,000 pre-reverse split) shares of common stock to Strategic Advisory Board members, Dr. Philip Frost and Steven Rubin, for 12 months of services. |
| (i) | On June 3, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock to Adaptive Flight Inc (AFI) due to the triggering of a ‘make whole’ provision in the value of escrowed shares. |
| (j) | On September 26, 2016, the Company issued 133,900 (1,339,000 pre-reverse split) shares of restricted common stock to employees Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, Mike Silverman and Lt. Gen. Michael Flynn pursuant to stock award agreements. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. Gen. Flynn forfeited 2,500 (25,000 pre-reverse split) unvested shares. |
| (k) | On September 26, 2016, the Company issued 3,500 (35,000 pre-reverse split) shares of common stock to Reginald Brown pursuant to stock award agreement for consulting services. |
| (l) | On September 26, 2016, the Company issued 2,500 (25,000 pre-reverse split) shares of common stock to a member of the Strategic Advisory Board. |
| (m) | On September 29, 2016, the Company issued 49,667 (496,667 pre-reverse split) shares of common stock to twelve investors, including 40,667 (406,666 pre-reverse split) shares to four affiliate investors. These investors purchased stock at $50.00 ($5.00 pre-reverse split) per share and under the purchase agreement received twelve months of price protection. The Convertible Promissory Notes Series 2016 due October 1, 2017 included a $30.00 ($3.00 pre-reverse split) per share conversion factor, thereby triggering the price protection feature. |
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During the year ended December 31, 2016, the Company granted 6,500 (65,000 pre-reverse split) common stock options to employees for service provided with exercise prices between $29.10 ($2.91 pre-reverse split) and $37.70 ($3.77 pre-reverse split).
During the year ended December 31, 2016, the Company granted 6,000 (60,000 pre-reverse split) common stock warrants to consultants for service provided with an exercise price of $29.10 ($2.91 pre-reverse split).
During the year ended December 31, 2017, the Company issued a total of 50,025 (500,250 pre-reverse split) shares of common stock as follows:
| (a) | On April 24, 2017, the holder of Series A preferred stock converted a total of 100,100 shares of Series A for an aggregate of 25,025 (250,250 pre-reverse split) shares of restricted common stock in accordance with their conversion rights which includes a blocker with respect to individual ownership percentages. |
| (b) | On August 3, 2017, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from May 1, 2017 until April 30, 2018. |
During the year ended December 31, 2017, the Company issued a total of 751,000 (7,510,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On January 9, 2017, the Company issued an option to a director to purchase 10,000 (100,000 pre-reverse split) shares of common stock with an exercise price of $29.00 ($2.90 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued options to purchase an aggregate of 521,000 (5,210,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to officers, directors and employees for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued options to purchase an aggregate of 200,000 (2,000,000 pre-reverse split) shares of its common stock outside its 2015 Equity Plan to officers and directors, and for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
| (d) | On December 13, 2017, the Company issued options to purchase an aggregate of 20,000 (200,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
During the year ended December 31, 2017, the Company issued a total of 205,000 (2,050,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On August 3, 2017, the Company issued warrants to purchase an aggregate of 3,000 (30,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued a warrant to purchase 200,000 (2,000,000 pre-reverse split) shares of the Company’s common stock to Dr. Philip Frost for services to be provided under the terms of his service to the Strategic Advisory Board through April 2018 with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued a warrant to purchase 2,000 (20,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
On August 2, 2017, the Company issued a promissory note to City National Bank of Florida (“CNB”) in the principal amount of $2,000,000, the CNB Note, with a maturity date of August 2, 2018. On September 26, 2018, the Company and CNB agreed to extend the maturity date of the CNB Note to August 2, 2019. On August 29, 2019, the Company and CNB agreed to extend the maturity date of the promissory note to August 2, 2020.
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On August 3, 2017, the Company issued a secured promissory note (the “Secured Convertible Promissory Note Series 2017”) due August 2, 2018 in the aggregate principal amount of $2,000,000 in a private placement to Frost Nevada Investments Trust (“Frost Nevada”) of which Dr. Phillip Frost, an affiliate shareholder of the Company, is the trustee. On September 26, 2018, the Company and Frost Nevada agreed to extend the maturity date of the Secured Convertible Promissory Note Series 2017 to August 2, 2019. On December 21, 2018, the Company issued 403,074 (4,030,740 pre-reverse split) shares of common stock to Frost Nevada in full settlement of the $2,000,000 principal balance and $15,370 accrued interest.
In October 2017, we received an award in excess of $800,000 gross revenue from a prime contractor for a multi-mission capable WASP, including secure voice and data network range extension from an existing DoD customer, which was delivered in February 2018.
In March 2018, we received an approximately $1.7 million gross revenue award, our largest single DoD award to date from a prime contractor for a multi-mission capable tactical WASP. The March 2018 order, which was delivered in October 2018, was the third repeat order awarded to us for WASP as the result of a growing number of successful international military deployments.
During the year ended December 31, 2018, the Company issued a total of 1,445,816 (14,458,151 pre-reverse split) shares of common stock as follows:
| (a) | On October 25, 2018, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from November 1, 2018 until October 31, 2019. |
| (b) | On October 24, 2018, the Company commenced an offering of up to 1,000,000 (10,000,000 pre-reverse split) shares of its common stock (the “Offered Shares”) in a private placement of up to $5,500,000 to certain accredited investors at a purchase price of $5.50 ($0.55 pre-reverse split) per share pursuant to a Stock Purchase Agreement (the “SPA”). Closing of the offering pursuant to the SPA is conditioned upon certain, limited customary representations and warranties, as well as the Company having received an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after October 9, 2018 (the “Qualifying Sales Order”). As required under the SPA, upon receipt by the Company of a Qualifying Sales Order, the Company will give written notice to the investors notifying them that the Company intends to close on the purchase of the Offered Shares pursuant to the SPA. Within three days after the delivery of the notice to the investors, the Company and the investors will then close under the SPA and at closing, the Company will issue to each purchasing investor the number of shares subscribed for by each Investor. |
| (c) | On December 21, 2018, the Board approved an Amended and Restated Stock Purchase Agreement (the “Amended SPA”) relating to the Offered Shares to reduce the purchase price in the Offering to $5.00 ($0.50 pre reverse split) per share, reduce the maximum offering amount from $5,500,000 to $5,000,000, extend the initial closing date of the Offering to January 15, 2019 and permit sales of the Common Stock for a period of 30 days after the initial closing in order to attract a greater number of investors. In addition, the Amended and Restated Stock Purchase Agreement revised the definition of the event triggering the initial closing date to the date when the Company enters into an agreement with a prime government contractor at any time commencing after October 8, 2018 whereby the Company agrees to provide a minimum of $4,000,000 in goods and services to such contractor. |
| (d) | On December 21, 2018, the Company issued 617,742 (6,177,411 pre-reverse split) shares of common stock pursuant to conversion of the Convertible Promissory Notes Series 2016 and 403,074 (4,030,740 pre-reverse split) shares of common stock pursuant to conversion of the Secured Convertible Promissory Note Series 2017. |
| (e) | On December 27, 2018, the Company completed the sale of 400,000 (4,000,000 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,000,000, of which 100,000 shares (1,000,000 pre-reverse split) shares were issued to Jay Nussbaum, the Company’s former Chief Executive Officer and Chairman of the Board of Directors, and 300,000 (3,000,000 pre-reverse split) shares were issued to Frost Gamma Investment Trust, of which Dr. Phillip Frost, an affiliate shareholder of the Company, is the trustee. On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, which was repaid on February 8, 2019 including $575 in accrued interest, (3) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Dan Erdberg, the Company’s CEO and President, in the amount of $50,000 which was cancelled on April 30, 2019 pursuant to Stock Redemption and Note Cancellation Agreements, and (4) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000 which was reduced by $7,500 in January 2019, leaving a principal balance of $17,500 which was repaid in full on April 30, 2019, including $134 in accrued interest. Each note bore an interest rate at a fixed rate of 3% per annum and principal and interest under the notes could be prepaid at any time without penalty. |
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During the year ended December 31, 2018, the Company issued a net total of 656,000 (6,560,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 28, 2018, the Company issued options to purchase an aggregate of 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (b) | On May 16, 2018, the Company issued options to purchase an aggregate of 46,000 (460,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to four employees with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (c) | On August 22, 2018, the Company granted options to purchase an aggregate of 500,000 (5,000,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $10.00 ($1.00 pre-reverse split) per share. On September 26, 2018, the Board resolved to cancel these options which had not vested. |
| (d) | On September 26, 2018, the Company granted options to purchase an aggregate of 600,000 (6,000,000 pre-reverse split) shares of Company common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $6.50 ($0.65 pre-reverse split) per share. |
During the year ended December 31, 2018, the Company issued a total of 10,000 (100,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On September 26, 2018, the Company issued a warrant to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to Global Security Innovative Strategies, LLC for services at an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
In July 2018, we entered into an exclusive teaming agreement with a U.S. Government prime contractor which is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from of the Department of Homeland Security (“DHS”), Customs and Border Protection (“CBP”). Under the terms of the teaming agreement:
| ● | We agreed to work together to propose retrofit and new production of surveillance systems developed under the prime contract; and |
| ● | We agreed to provide the WASP aerostat, engineering support for WASP system integration, Field Service Representatives personnel support for WASP aerostat maintenance, training, WASP deployment, retrieval and movement, and warranty for WASP. |
In December 2018, the prime contractor awarded us a subcontract valued at approximately $3.8 million gross revenue for six WASP aerostat systems. These WASP powered surveillance systems are expected to be deployed at a CBP Border Patrol Sector on the southern border of the United States commencing in September 2019. There are 20 Border Patrol Sectors along U.S. borders, 9 of which are located along the U.S. Southern border. We have begun production of the initial units at our facilities in Florida and at our ISO 9001-certified manufacturing strategic partner’s facility. Deliveries began late in the second quarter of 2019 and will continue throughout 2019. We are working closely with the prime contractor to explore additional product and services opportunities in DHS and CBP under our exclusive teaming agreement.
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Our marketing efforts include submission of bids on several government procurement projects. In the past, we also showcased our products and technologies at numerous conferences and live demonstrations, including the 2017 Special Operations Forces Industry Conference, Warrior Expo East and took part in a series of tests conducted on the southern border of the United States, State of Florida HURREX exercise, CyberQuest 2017, and presentations to a variety of federal and state government agencies. We have also increased marketing efforts and announced the following:
| ● | On August 13, 2019, we announced that we delivered the initial set of WASP Aerostat systems in support of the United States Border Patrol; U.S. Customs and Border Protection. The initial award valued at approximately $3.8 million gross revenue was announced in January 2019 and the follow-on order of approximately $1.7 million gross revenue was announced in June 2019. Due to customer-related confidentiality considerations, we were not permitted to provide additional information about those awards at the time of the announcements. | |
| ● | On July 18, 2019, we announced that we delivered our first contract award for the Ultra-Tactical WASP Lite System, valued in excess of $1.1 million, from prime contractor ADS, Inc. to a U.S. Army customer. The award was originally announced on May 7, 2019. | |
| ● | On February 14, 2019, we announced that we had commenced the communications upgrade of a U.S. Army-owned WASP tactical aerostat. The upgrade will enable secure communications links utilizing advanced waveforms connecting soldiers on the battlefield. | |
| ● | On January 31, 2019, we announced that we secured an additional $2.0 million in capital, completing a private placement raising an aggregate of $4.0 million which will be used to expand production and staffing. | |
| ● | On January 22, 2019, we announced the conclusion of training for a U.S. Army unit on the next generation WASP ERS tactical aerostat. The delivery of the $1.7 million order itself was announced on October 15, 2018. | |
| ● | On January 15, 2019, we announced the expansion of our manufacturing capacity. | |
| ● | On December 27, 2018, we announced that we had eliminated over 70% of our existing debt in support of our planned growth. |
During the six months ended June 30, 2019, the Company issued a total of 391,550 (3,915,500 pre-reverse split) shares of common stock as follows:
| (a) | On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at a purchase price of $5.00 ($0.50 pre-reverse split) per share, for an aggregate purchase price of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Dan Erdberg in the amount of $50,000 and (4) a full-recourse promissory note payable by Kendall Carpenter in the amount of $25,000. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019 leaving a principal balance of $17,500. On April 30, 2019, Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, repaid the entire principal balance of the $17,500 note described above in Footnote #8 to the March 31, 2019 unaudited financial statements, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg, the Company’s CEO and President, entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 10,000 (100,000 pre-reverse split) shares of common stock paid pursuant to the note described above in Footnote #8 to the June 30, 2019 unaudited financial statements and cancelled the $50,000 note and the related $267 in accrued interest. |
On February 8, 2019, the non-affiliate investor repaid the $500,000 principal due on the promissory note and on February 11, 2019, the $575 accrued interest.
On April 30, 2019, the Company entered into a Stock Redemption and Note Cancellation Agreement with Daniyel Erdberg to redeem 10,000 (100,000 pre-reverse split) shares in exchange for cancellation of the $50,000 note.
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On April 30, 2019, the Carpenter note was repaid in full, including principal of $17,500 and accrued interest of $134.
During the six months ended June 30, 2019, the Company issued a net total of 13,000 (130,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 20, 2019, the Company issued options to purchase an aggregate of 13,000 (130,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two employees for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share. |
During the six months ended June 30, 2019, the Company issued a net total of 5,000 (50,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On March 20, 2019, the Company issued a warrant to purchase 5,000 (50,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a contractor for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share. |
On March 21, 2019, concurrent with the resignation of Kevin Hess, the Company’s prior Chief Technology Officer, the Company and Cognitive Carbon Corporation (“CCC”), a related party, entered into an agreement pursuant to which CCC agreed to provide Chief Technology Officer services, sales and marketing services and outsourced software and platform development services to be provided personally by Kevin Hess or third-party development firms of his choosing for outsourced development. CCC will receive $19,750 per month for one year for the Chief Technology Officer services and potential bonuses and an amount up to $120,000 for outsourced software and platform development. Felicia Hess, the Company’s Chief Quality Officer, who is married to Kevin Hess, is the President and Director of CCC.
Recent Developments
On July 18, 2019, we announced that we delivered our first contract award for the Ultra-Tactical WASP Lite System from prime contractor ADS, Inc. to a U.S. Army customer. The order was originally announced on May 7, 2019. Under the terms of the award, valued in excess of $1.1 million gross revenue, we will supply multiple WASP Lite aerostat systems capable of enhancing and extending the modern networked battlefield supporting specialized waveform communications equipment and day/night ISR (Intelligence, Surveillance and Reconnaissance) payloads. The WASP Lite employs the same proprietary, advanced tethering technologies found in our Winch Aerostat Small Platform (“WASP”) tactical aerostat for secure power and data transmission. Deliveries under this award commenced in July 2019.
On August 13, 2019, we announced that we delivered the initial set of WASP Aerostat systems in support of the United States Border Patrol; U.S. Customs and Border Protection. The initial award valued at approximately $3.8 million gross revenue was announced in January 2019 and the follow-on order of approximately $1.7 million gross revenue was announced in June 2019. Due to customer-related confidentiality considerations, we were not permitted to provide additional information about those awards at the time of the announcements.
On August 31, 2019, Jay H. Nussbaum, the Company’s Chairman of the Board and Chief Executive Officer, passed away.
On September 4, 2019, the Company’s Board appointed Mr. Aguilar, who has served as a member of the Board since 2017, as Chairman of the Board. On September 4, 2019, in connection with Mr. Aguilar’s appointment as Chairman of the Board, the parties to the 2017 Director Agreement agreed to amend the 2017 Director Agreement (“2017 Amendment”) pursuant to which the Company agreed to pay Mr. Aguilar an annual fee of $120,000 in exchange for his services as Chairman of the Board. See footnote regarding Mr. Aguilar in “Executive Compensation – Director Compensation Table” in this prospectus.
On September 4, 2019, the Board appointed Daniyel Erdberg as the Company’s Chief Executive Officer and as a member of the Board to fill the vacancy created by Mr. Nussbaum’s death. Mr. Erdberg also continues to serve as the Company’s President since his appointment to that position on October 2, 2015. In connection with Mr. Erdberg’s appointment as Chief Executive Officer and director, the Company and Mr. Erdberg entered into Amendment No. 6 (“Amendment No. 6”) to the Employment Agreement with Mr. Erdberg on September 4, 2019. Pursuant to the terms of Amendment No. 6, the term of employment was extended to December 31, 2020 and the annual base salary payable under the Employment Agreement was increased from $175,000 to $250,000. See “Executive Compensation - Employment Contracts and Potential Payments Upon Termination or Change in Control” in this prospectus.
On September 4, 2019, Robert Guerra resigned as a director and member of the Board’s committees, effective immediately. Mr. Guerra’s resignation was not the result of any disagreement with the Company on any matter relating to its operation, policies or practices. On September 4, 2019, the Company redeemed 10,000 (100,000 pre-reverse split) shares of its common stock, which are now Treasury Stock, pursuant to a Redemption Agreement at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $50,000 which were issued to Mr. Guerra, the Company’s former director.
As a result of these changes to the composition of the board and its committees and the officers on September 4, 2019, the Company’s officers and directors are as follows since September 5, 2019:
| Name | Age | Positions and Offices | ||
| Daniyel Erdberg | 41 | Chief Executive Officer, President and Director | ||
| Kendall Carpenter | 63 | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | ||
| Felicia Hess | 52 | Chief Quality Officer | ||
| David Aguilar | 63 | Chairman of the Board | ||
| Timothy Hoechst | 53 | Director and Chairman of the Compensation Committee | ||
| John E. Miller | 78 | Director and Chairman of the Audit Committee |
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Going Concern
For the year ended December 31, 2017, the Company disclosed that its ability to continue as a going concern was predicated on the Company’s ability to create and market innovative products, raise capital, reduce debt or renegotiate terms, and to sustain adequate working capital to finance its operations. During 2018, the Company met or exceeded those predications. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.8 million in gross revenues which was received in December 2018 and expected to be delivered by the end of 2019. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity leaving only $2,000,000 in bank debt on the books. As of June 30, 2019, the Company has approximately $1,200,000 in working capital, an improvement of approximately $1,000,000 more than the Company’s working capital balance at the end of 2018. The Company announced its first-ever profitable financial results for the second quarter ended June 30, 2019.
The focus on opportunities for aerostats, the settlement of debt obligations, the funds generated from stock sales and other initiatives contributing to additional working capital should avoid any substantial doubt about the Company’s ability to continue as a going concern as defined by FASB Accounting Standards Update 2014-05, Disclosure of Uncertainties about an Entity’s ability to Continue as a Going Concern. We believe that the actions discussed above mitigate the substantial doubt raised by our recent operating losses and satisfy our estimated liquidity needs twelve months from the issuance of the financial statements. In light of the foregoing, our auditor did not include a going concern qualification in their audit report dated March 22, 2019 for the years ended December 31, 2018 and 2017 notwithstanding our historical operating losses and accumulated deficit.
Nasdaq Listing and Reverse Stock Split
We applied to list of our common stock and warrants on the NASDAQ Capital Market. If our application to the NASDAQ Capital Market is not approved or we otherwise determine that we will not be able to secure the listing of the common stock and warrants on the NASDAQ Capital Market, we will not complete the offering.
On June 5, 2019, our board of directors and stockholders holding a majority of our outstanding voting power, approved resolutions authorizing a reverse stock split of the outstanding shares of our common stock in the range from one-for-five (1-for-5) to one-for-ten (1-for-10), which ratio will be selected by the board of directors. The board of directors will set the ratio of the reverse stock split, and the reverse stock split will become effective following approval by FINRA of the reverse stock split, prior to the effective date of the registration statement (of which this prospectus forms a part). The reverse stock split is intended to allow us to meet the minimum share price requirement of the NASDAQ Capital Market.
Except as otherwise indicated and except in our financial statements and the notes thereto, all references to our common stock, share data, per share data and related information depict an assumed reverse stock split ratio of 1-for-10 (“Reverse Stock Split”) until final determination by the board of directors as if it was effective and as if it had occurred at the beginning of the earliest period presented. The Reverse Stock Split, when effective, will combine each ten shares of our outstanding common stock into one share of common stock, without any change in the par value per share, and the Reverse Stock Split correspondingly will adjust, among other things, the exercise rate of our warrants and options into our common stock. No fractional shares will be issued in connection with the Reverse Stock Split, and any fractional shares resulting from the Reverse Stock Split will be rounded up to the nearest whole share.
ORGANIZATIONAL STRUCTURE
The diagram below depicts our organizational structure after this Offering:
This diagram assumes the underwriters exercise their over-allotment option in full but does not assume the exercise of the warrants forming part of the units or the over-allotment option.
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Employees
As of October 11, 2019, we had 22 full-time and 3 part-time employees. We have no labor union contracts and believe relations with our employees are satisfactory.
Properties
Our principal executive office is located at 11651 Central Parkway, #118, Jacksonville, Florida 32224. Several of our management employees work remotely. We have entered into a 60-month operating lease for 5,533 square feet of office and manufacturing space at 11651 Central Parkway, #118, Jacksonville, Florida 32224. The lease commenced February 1, 2015 and we took occupancy in June 2015. On March 1, 2019, the Company entered into a 37-month operating lease for 2,390 square feet in Holly Hill, Florida for aerostat manufacturing. Several of our executives work from home-based offices in Florida, Virginia and Oklahoma and receive nominal reimbursement for home office expenses.
Legal Proceedings.
The Company
From time to time, we may become involved in various lawsuits and legal proceedings which arise in the ordinary course of business.
We are currently party to the following material legal proceeding:
Banco Popular North America v Aerial Products Corporation d/b/a Southern Balloon Works, et al. (Fourth Judicial Circuit Court, Duval County Florida-Civil Division) Case No. 16:2016:CA-003343
On May 16, 2016, Banco Popular North America (“Banco”) filed a lawsuit in Duval County, Florida in the Circuit Court of the Fourth Judicial Circuit against Aerial Products Corporation d/b/a Southern Balloon Works (“Aerial Products”), Kevin M. Hess, LTAS, and the Company to collect on a delinquent Small Business Administration loan that Banco made in 2007 to Aerial Products with Mr. Hess as the personal guarantor. LTAS and the Company filed an Answer on June 30, 2016 and Responses to Interrogatories on December 16, 2016. On August 31, 2017, LTAS and the Company filed Responses to Production of Documents. On May 29, 2019, Banco filed a Motion for Partial Summary Judgment against Aerial Products and Mr. Hess only. It is our position that neither LTAS nor the Company are continuations of Aerial Products, and LTAS and the Company has denied all allegations made by Banco and are vigorously defending themselves. The Company has evaluated the probability of loss as possible, but the range of loss is unable to be estimated.
Other than as set forth above, there are no pending material claims, actions, suits, proceedings, inquiries, labor disputes or investigations involving the Company.
Dr. Phillip Frost
As a public company and as a supplier to various military and national security customers, in particular, we continually engage in a rigorous review of our business and operations and hold ourselves to the highest ethical standards. It has been brought to our attention that in September 2018, the SEC charged Dr. Phillip Frost, a substantial stockholder of the Company, and Frost Gamma Investments Trust, of which Dr. Frost is the trustee (“FGIT”) (among other individuals and entities unrelated to the Company), with certain violations of the Securities Act and the Exchange Act, which violations are not alleged to be related to the Company and do not relate to his Company stockholdings or transactions in Company securities. Dr. Frost, with his affiliates, including FGIT, is the beneficial holder of 11,672,318 shares of the Company’s common stock, representing approximately 46.3% of the Company’s outstanding common stock. Although Dr. Frost has been a member of the Company’s Strategic Advisory Board since August 2014, Dr. Frost’s role with the Company has been strictly advisory, and he has not been involved in any way with the Company’s operations, including day-to-day management, accounting or reporting. Dr. Frost, through FGIT and another affiliated entity, has provided credit facilities to the Company in 2016 and 2017. As of March 31, 2019, and December 31, 2018, the Company was not, and as of the date of this prospectus the Company is not, indebted to Dr. Frost. The Company has no current plans to enter into any future debt financings with Dr. Frost or any of his affiliates. In December 2018, in a settlement, subject to court approval, Dr. Frost agreed with the SEC to resolve the action brought against him, which action is unrelated to the Company, Dr. Frost’s Company stockholdings or any transactions by Dr. Frost or his affiliates in Company securities. Without admitting or denying the SEC’s allegations, Dr. Frost agreed to injunctions from certain violations of the Securities Act and the Exchange Act, approximately $5.5 million in penalty, disgorgement and pre-judgment interest, and a prohibition, with certain exceptions, from participating in an offering of, or trading in, penny stocks. In January 2019, FGIT agreed to injunctions from certain violations of the Securities Act and a prohibition, with certain exceptions, from participating in an offering of, or trading in, penny stocks. The allegations and settlement were in no way related to the Company or its securities. The Company prides itself on maintaining the highest ethical standards, as evidenced by its adoption of the Code of Ethics and Business Conduct that applies to all of its directors, officers and employees. The Code of Ethics and Business Conduct is available on our website at ir.droneaviationcorp.com/governance-docs.
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MANAGEMENT’S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion of our financial condition and results of operations should be read in conjunction with the consolidated financial statements and the notes to those financial statements that are included elsewhere in this prospectus. Our discussion includes forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives, expectations and intentions. Actual results and the timing of events could differ materially from those anticipated in these forward-looking statements as a result of a number of factors, including those set forth under the Risk Factors, Cautionary Statement Regarding Forward-Looking Statements and Business sections in this prospectus. We use words such as “anticipate,” “estimate,” “plan,” “project,” “continuing,” “ongoing,” “expect,” “believe,” “intend,” “may,” “will,” “should,” “could,” and similar expressions to identify forward-looking statements.
Growth and percentage comparisons made herein generally refer to the six months ended June 30, 2019 compared with the six months ended June 30, 2018 or year ended December 31, 2018 compared with the year ended December 31, 2017, as applicable, unless otherwise noted. Unless otherwise indicated or unless the context otherwise requires, all references in this document to “we,” “us,” “our,” the “Company,” and similar expressions refer to Drone Aviation Holding Corp. and, depending on the context, its subsidiaries.
Business Overview
We design, develop, market, sell and provide logistical services for specialized tethered aerial monitoring and communications platforms serving national defense and security customers for use in applications including intelligence, surveillance and reconnaissance (“ISR”) and communications. We focus primarily on the development of a tethered aerostat known as the Winch Aerostat Small Platform (“WASP”) and have developed and sold tethered drone products, including the WATT electric drone and the FUSE Tether System designed for the DJI Matrice 200 (M200) professional drones. Our products are primarily designed for military and security applications where they can provide secure and reliable aerial monitoring for extended durations while being tethered to the ground via a high strength armored tether.
Our marketing efforts include submission of bids on several government procurement projects. In the past, we also showcased our products and technologies at numerous conferences and live demonstrations, including the 2017 Special Operations Forces Industry Conference and the Warrior Expo East, and took part in a series of tests conducted on the southern border of the United States, State of Florida HURREX exercise, CyberQuest 2017, and presentations to a variety of federal and state government agencies. We have also increased marketing efforts and announced the following:
| ● | On August 13, 2019, we announced that we delivered the initial set of WASP Aerostat systems in support of the United States Border Patrol; U.S. Customs and Border Protection. The initial award valued at approximately $3.8 million gross revenue was announced in January 2019 and the follow-on order of approximately $1.7 million gross revenue was announced in June 2019. Due to customer-related confidentiality considerations, we were not permitted to provide additional information about those awards at the time of the announcements. | |
| ● | On July 18, 2019, we announced that we delivered our first contract award for the Ultra-Tactical WASP Lite System, valued in excess of $1.1 million, from prime contractor ADS, Inc. to a U.S. Army customer. The award was originally announced on May 7, 2019. |
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| ● | On February 14, 2019, we announced that we had commenced the communications upgrade of a U.S. Army-owned WASP tactical aerostat. The upgrade will enable secure communications links utilizing advanced waveforms connecting soldiers on the battlefield. | |
| ● | On January 31, 2019, we announced that we secured an additional $2.0 million in capital, completing a private placement raising an aggregate of $4.0 million which will be used to expand production and staffing. |
| ● | On January 22, 2019, we announced the conclusion of training for a U.S. Army unit on the next generation WASP elevated relay system (ERS) tactical aerostat. The delivery of the $1.7 million order itself was announced on October 15, 2018. | |
| ● | On January 15, 2019, we announced the expansion of our manufacturing capacity. | |
| ● | On December 27, 2018, we announced that we had eliminated over 70% of our existing debt in support of our planned growth. |
In addition to our plans to organically grow our lighter than air systems through increased marketing and sales, we intend to continue to consider potential strategic transactions, which could involve acquisitions of businesses or assets, joint ventures or investments in businesses, products or technologies that expand, complement or otherwise relate to our current or future business.
Department of Homeland Security and Customs and Border Protection
In July 2018, we entered into an exclusive teaming agreement with a U.S. Government prime contractor which is the recipient of a previously awarded IDIQ (indefinite delivery/indefinite quantity) prime contract from the U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”). Under the terms of the teaming agreement:
| ● | We agreed to work together to propose retrofit and new production of surveillance systems developed under the prime contract; and |
| ● | We agreed to provide the WASP aerostat, engineering support for WASP system integration, Field Service Representatives personnel support for WASP aerostat maintenance, training, WASP deployment, retrieval and movement, and warranty for WASP. |
In December 2018, the prime contractor awarded us a subcontract valued at $3.8 million gross revenue for six WASP aerostat systems. These WASP powered surveillance systems are expected to be deployed at a CBP Border Patrol Sector on the southern border of the United States commencing in September 2019. There are 20 Border Patrol Sectors along U.S. borders, nine of which are located along the U.S. Southern border. We have begun production of the initial units at our facilities in Florida and at our ISO 9001-certified manufacturing strategic partner’s facility. Deliveries began late in the second quarter of 2019 and will continue throughout 2019. In June 2019, we were awarded a contract valued at approximately $1.7 million gross revenue from the prime contractor as a follow-on to the $3.8 million contract they awarded us in December 2018. We are working closely with the prime contractor to explore additional product and services opportunities in DHS and CBP under our exclusive teaming agreement.
Department of Defense
On May 7, 2019, we announced our first contract award for our newly designed aerostat product, the WASP Lite, from prime contractor ADS, Inc. for delivery to a U.S. Army customer. Under the terms of the award, valued in excess of $1.1 million gross revenue, we will supply multiple WASP Lite aerostat systems capable of enhancing and extending the modern networked battlefield supporting specialized waveform communications equipment and day/night ISR (Intelligence, Surveillance and Reconnaissance) payloads. The WASP Lite employs the same proprietary, advanced tethering technologies found in our Winch Aerostat Small Platform (“WASP”) tactical aerostat for secure power and data transmission. Deliveries under this award commenced in July 2019.
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Critical Accounting Policies and Estimates
The following is not intended to be a comprehensive list of our accounting policies or estimates. Our significant accounting policies are more fully described in Note 1–Summary of Significant Accounting Policies in the Notes. In preparing our financial statements and accounting for the underlying transactions and balances, we apply our accounting policies and estimates as disclosed in the Notes. We consider the policies and estimates discussed below as critical to an understanding of our financial statements because their application places the most significant demands on our judgment, with financial reporting results dependent on estimates about the effect of matters that are inherently uncertain and may change in subsequent periods. Specific risks for these critical accounting estimates are described in the following paragraphs. The impact and any associated risks related to these estimates on our business operations are discussed throughout this MD&A where such estimates affect our reported and expected financial results. Preparation of this prospectus requires us to make estimates and assumptions that affect the reported amount of assets and liabilities, disclosure of contingent assets and liabilities at the date of our financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results may differ from those estimates.
Besides estimates that meet the “critical” accounting estimate criteria, we make many other accounting estimates in preparing our financial statements and related disclosures. All estimates, whether or not deemed critical, affect reported amounts of assets, liabilities, revenue and expenses as well as disclosures of contingent assets and liabilities. Estimates are based on experience and other information available prior to the issuance of the financial statements. Materially different results can occur as circumstances change and additional information becomes known, including for estimates that we do not deem “critical.”
Accounts Receivable and Credit Policies:
Accounts receivable-trade consists of amounts due from the sale of tethered aerostats, accessories, spare parts, and customization and refurbishment of aerostats. Such accounts receivable are uncollateralized customer obligations due under normal trade terms requiring payment within 30 days of receipt of the invoice. We provide an allowance for doubtful accounts equal to the estimated uncollectible amounts based on historical collection experience and a review of the current status of trade accounts receivable. At June 30, 2019 and December 31, 2018, none of the Company’s accounts receivable-trade was deemed uncollectible.
Revenue Recognition and Unearned Revenue:
In May 2014, the FASB issued Accounting Standards Update No. 2014-09 (Topic 606) “Revenue from Contracts with Customers.” Topic 606 supersedes the revenue recognition requirements in Topic 605 “Revenue Recognition” (Topic 605). The new standard’s core principal is that an entity will recognize revenue at an amount that reflects the consideration to which the entity expects to be entitled in exchange for transferring good or services to a customer. The principals in the standard are applied in five steps: 1) Identify the contract(s) 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 (or as) the entity satisfies a performance obligation. We adopted Topic 606 as of January 1, 2018 using the modified retrospective transition method. We recognized the cumulative effect of adopting this guidance as an adjustment to our opening balance of retained earnings. Prior periods will not be retrospectively adjusted. The adoption of Topic 606 does not have a material impact to our consolidated financial statements, including the presentation of revenues in our Consolidated Statements of Operations, which were not broken down by revenue stream or geographic areas since the Company only sells within the United States and has only one revenue stream.
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Long-Lived Assets:
We account for long-lived assets in accordance with the provisions of ASC 360-10-35, “Impairment or Disposal of Long-lived Assets.” This accounting standard requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future undiscounted net cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset.
On July 20, 2015, we, through our wholly-owned subsidiary AFS, entered into an agreement to acquire exclusive commercial software licenses for the “GUST” (Georgia Tech UAV Simulation Tool) autopilot system from AFI. Through the purchase of the assets of AFI, we assumed the transferable licenses from the Georgia Tech Research Corporation, which include flight simulation tools and fault tolerant flight control algorithms. In addition, we acquired AFI’s dedicated flight computer and additional related hardware and airframes. We paid $100,000 in immediately available funds and $100,000 were held in escrow. In addition, we issued 15,000 (150,000 pre-reverse split) shares of unregistered common stock valued at $84.00 ($8.40 pre-reverse split) per share, on a post-reverse split basis, on the closing date of the acquisition, to be held in escrow. We issued 5,000 (50,000 pre-reverse split) shares of common stock to AFI in the second quarter of 2016 after all milestones had been met as a requirement of the terms of the acquisition because the value of the escrowed shares fell below $1,400,000 and triggered a ‘make whole’ provision. The asset acquisition with AFI did not qualify as a business combination under ASC 805-10, “Business Combinations,” and has been accounted for as a regular asset purchase.
We account for goodwill and intangible assets in accordance with ASC 350,” Intangibles-Goodwill and Other.” ASC 350 requires that goodwill and other intangibles with indefinite lives be tested for impairment annually or on an interim basis if events or circumstances indicate that the fair value of an asset has decreased below its carrying value.
Derivative Financial Instruments:
We evaluate our financial instruments to determine if such instruments are derivatives or contain features that qualify as embedded derivatives. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported in the statements of operations. For stock-based derivative financial instruments, we use a Black-Scholes option pricing model, in accordance with ASC 815-15, “Derivative and Hedging,” to value the derivative instruments at inception and on subsequent valuation dates. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is evaluated at the end of each reporting period. Derivative instrument liabilities are classified in the balance sheet as current or non-current based on whether or not net-cash settlement of the derivative instrument could be required within 12 months of the balance sheet date.
Employee Stock-Based Compensation:
We account for stock-based compensation in accordance with ASC 718, “Compensation-Stock Compensation.” ASC 718 requires companies to measure the cost of employee services received in exchange for an award of equity instruments, including stock options, based on the grant-date fair value of the award and to recognize it as compensation expense over the period the employee is required to provide service in exchange for the award, usually the vesting period.
Recently Issued Accounting Pronouncements
Effective January 1, 2019, the Company adopted ASU No. 2018-07, Compensation – Stock Based Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-7”), which aligns accounting for share-based payments issued to nonemployees to that of employees under the existing guidance of Topic 718, with certain exceptions. This update supersedes previous guidance for equity-based payments to nonemployees under Subtopic 505-50, Equity – Equity-Based Payments to Non-Employees. The adoption of ASU 2018-07 did not have a material impact on the Company’s consolidated financial statements.
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In February 2016, the FASB issued ASU 2016-02, Leases, which will amend current lease accounting to require lessees to recognize (i) a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis, and (ii) a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the least term. ASU 2016-02 does not significantly change lease accounting requirements applicable to lessors; however, certain changes were made to align, where necessary, lessor accounting with the lessee accounting model. This standard is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The adoption of ASU 2016-02 resulted in $116,876 and $72,887 initial recognition of ROU assets and lease liabilities as of January 1 and March 1, 2019, respectively. The ending balance of ROU assets and lease liabilities as of June 30, 2019 are $146,642 and $147,390, respectively.
Other than those pronouncements, management does not believe that there are any other recently issued, but not effective, accounting standards which, if currently adopted, would have a material effect on the Company’s financial statements.
Three Months Ended June 30, 2019 compared to Three Months Ended June 30, 2018
Revenues: Revenues of $1,373,047 for the quarter ended June 30, 2019 increased $1,331,047, or 3,169%, from $42,000 for the same period in 2018. Sources of revenue were derived primarily from the delivery of the first two WASP systems to a prime contractor and related services. The revenue for the quarter ended June 30, 2018 was primarily a result of the delivery of additional aerostats to an existing customer. We expect increased sales in future periods based on a product pipeline developed following our increased marketing efforts discussed in the Business Overview section above, including the order we announced in December 2018, valued in excess of $3.8 million, which is in production with deliveries expected to be completed by the end of 2019.
Cost of Goods Sold and Gross Profit: Cost of goods sold of $401,262 for the quarter ended June 30, 2019 increased $389,625, or 3,348%, from $11,637 for the same period in 2018. Costs included materials, parts, labor and overhead associated with the delivery of the first two WASP systems to a prime contractor. The $971,785 gross profit for the quarter ended June 30, 2019 was an increase of $941,422, or 3,101%, from the $30,363 in gross profit for the same quarter of 2018. Overall gross profit margins were 71% and 72% for the quarters ended June 30, 2019 and 2018, respectively. Margins also vary based on customer payload selection; therefore, future margins may vary accordingly.
General and Administrative Expense: General and administrative expense primarily consists of payroll and related costs, sales and marketing costs, travel costs, business overhead and costs related to maintaining a public entity. General and administrative expense decreased overall by $143,443, or 14%, to $884,876 in the quarter ended June 30, 2019 from $1,028,319 for the same period in 2018. Contributing to the decrease was non-cash stock-based compensation of $25,807 which decreased $154,600 from $180,407 in the same period of 2018. Payroll expenses of $341,555 decreased $80,267, travel expenses of $84,859 decreased $31,585 while legal and investor relations expenses of $158,384 increased $117,641 due to costs associated with preparing an S-1 public offering and the potential uplisting of the Company’s securities to a national exchange, compared to the same period in 2018. General and Administrative expenses are expected to increase as the Company grows the labor force to meet product demand. Sales and marketing and travel related expenses are also expected to increase during 2019 in support of increased product demand.
Income from Operations: Income from operations of $86,909 for the quarter ended June 30, 2019 increased $1,084,865, or 109%, from loss from operations of $997,956 for the same period in 2018. The increase was primarily due to an increase in gross profit of $941,422 and by the decrease of general and administrative expense of $143,453 as discussed above.
Other Expense: Total other expense of $33,095 for the quarter ended June 30, 2019 was $45,049 less than the total other expense of $78,144 in the same period in 2018. This decrease was primarily due to interest expense on the related party notes payable which were settled in December 2018.
Net Income: Net income increased $1,129,914, or 105%, to $53,814 for the quarter ended June 30, 2019 from net loss of $1,076,100 for the same period in 2018. The increase in net income was due to factors discussed above.
Six Months Ended June 30, 2019 compared to Six Months Ended June 30, 2018
Revenues: Revenues of $1,380,497 for the six months ended June 30, 2019 increased $469,474, or 52%, from $911,023 for the same period in 2018. Sources of revenue were derived primarily from the delivery of the first two WASP systems to a prime contractor and related services. The revenue for the six months ended June 30, 2018 included delivery of a WASP system valued in excess of $800,000 to the U.S. Army. We expect increased sales in future periods based on a product pipeline developed following our increased marketing efforts discussed in the Business Overview section above, including the order we announced in December 2018, valued in excess of $3.8 million, which is in production with deliveries expected to be completed by the end of 2019.
Cost of Goods Sold and Gross Profit: Cost of goods sold of $404,812 for the six months ended June 30, 2019 decreased $81,218, or 17%, from $486,030 for the same period in 2018. Costs included materials, parts, labor and overhead associated with the delivery of the first two WASP systems to a prime contractor. The $975,685 gross profit for the six months ended June 30, 2019 was an increase of $550,692, or 130%, from the $424,993 in gross profit for the same period in 2018. Overall gross profit margins were 71% and 47% for the six months ended June 30, 2019 and 2018, respectively. Margins also vary based on customer payload selection; therefore, future margins may vary accordingly.
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General and Administrative Expense: General and administrative expense primarily consists of payroll and related costs, sales and marketing costs, travel costs, business overhead and costs related to maintaining a public entity. General and administrative expense decreased $1,071,140, or 35%, to $1,959,788 for the six months ended June 30, 2019 from $3,030,928 for the same period in 2018. Contributing to the decrease was non-cash stock-based compensation of $114,012 which decreased $1,089,891 from $1,203,903 in the same period of 2018. Payroll expenses of $771,114 decreased $144,187, travel expenses of $133,983 decreased $7,522 while legal and investor relations expenses of $250,912 increased $138,913 due to costs associated with preparing an S-1 public offering and potential uplisting of the Company’s securities to a national exchange, compared to the same period in 2018. General and Administrative expenses are expected to increase as the Company grows the labor force to meet product demand. Sales and marketing and travel related expenses are also expected to increase during 2019 in support of increased product demand.
Loss from Operations: Loss from operations for the six months ended June 30, 2019 decreased $1,621,832, or 62%, to $984,103 from loss from operations of $2,605,935 for the same period in 2018. The decrease was primarily due to an increase in gross profit of $550,692 and by the decrease of general and administrative expense of $1,071,140 as discussed above.
Other Expense: Total other expense of $65,257 for the six months ended June 30, 2019 was $83,198 less than the total other expense of $148,455 in the same period in 2018. This decrease was primarily due to interest expense on the related party notes payable which were settled in December 2018.
Net Loss: Net loss decreased $1,705,030, or 62%, to $1,049,360 for the six months ended June 30, 2019 from net loss of $2,754,390 for the same period in 2018. The decrease in net loss was due to factors discussed above.
Year Ended December 31, 2018 Compared to Year Ended December 31, 2017
Total Net Revenues: Total net revenues increased $2,160,635, or 384%, to $2,722,713 in 2018 from $562,078 in 2017. Sources of revenue were derived primarily from aerostat products and accessories ordered in 2018 and delivered in 2018. The reason for the increase is that revenues in 2017 were primarily related to refurbishments and enhancements of aerostat systems and the revenues in 2018 were primarily from the sale of two aerostat systems. We expect increased sales in future periods based on a product pipeline developed following our increased marketing efforts discussed in Item 1. Business-Business Overview included elsewhere in this report.
Cost of Goods Sold and Gross Profit: Cost of goods sold for 2018 increased $1,875,587, or 554%, from $338,579 in 2017 to $2,214,166 in 2018, primarily consisting of materials, parts and labor associated with the sale of aerostat systems and FUSE tether systems. A total charge of approximately $565,000 was taken on inventory written off as slow moving. The Company is focusing exclusively on its aerostat products due to demand and determined that approximately $143,000 in FUSE tether system inventory, $204,000 payload inventory, $186,000 powered drone inventory and $32,000 other inventory was unlikely to be monetized in the next twelve months. The $508,547 gross profit for 2018 was an increase of $285,048 or 128% from the $223,499 in gross profit for 2017. Gross profit margins were 19% and 40% for 2018 and 2017, respectively. The gross profit margin in 2018 was negatively affected by the inventory written off by 20% as gross profit on revenue without regard to the write offs was 39%. Margins also vary based on customer payload selection; therefore, future margins may vary accordingly.
General and Administrative Expenses: General and administrative (“G&A”) expenses primarily consist of payroll and related costs, sales and marketing costs, research and development costs, business overhead and costs related to maintaining a public entity. G&A expense decreased by $1,430,477, or 14%, to $8,639,364 in 2018 from $10,069,841 in 2017. Contributing to the decrease was non-cash stock-based compensation which decreased $1,856,201 or 28% in 2018 to $4,746,605 from $6,602,806 in 2017. Research and development expenses decreased $244,753 or 70% to $107,015 in 2018 from $351,768 in 2017. This decrease was anticipated as the Company is relying on past research and development to support its current products. Future research and development costs are not expected to rise significantly. Marketing expense in 2018 was $185,284 which was a decrease of $128,900, or 41%, from marketing expense of $314,184 in 2017. During 2017, the Company conducted a thirty-day demonstration on the US/Mexican border which caused an increase that year. Legal expense decreased $73,747 or 56% to $58,671 in 2018 from $132,418 in 2017. Legal defense costs in the Banco matter decreased approximately $28,000 in 2018 and the Company saved approximately $40,000 on securities counsel when it changed representation to another highly qualified firm. Payroll expense increased by $940,570 or 70% to $2,275,256 in 2018 from $1,334,686 in 2017. Payroll increased approximately $84,000 due to bringing a contractor onto salary, $75,000 due to the bonus effect of payroll taxes paid on the vesting of the September 2016 stock awards and $670,000 bonuses approved for milestone achievements in 2018, $350,000 of which remain accrued at December 31, 2018 and salary adjustments.
Loss from Operations: Loss from operations for 2018 of $8,130,817 was a decrease of $1,715,525, or 17%, less than the loss from operations in 2017 of $9,846,342. The increase was primarily due to the increase in gross profit of $285,048 and by the decrease in general and administrative expense of $1,430,477 as discussed above.
Other Income and Expense: Total other expense of $344,496 in 2018 was $133,154, or 28%, less than the total other expense of $477,650 in 2017. This decrease was primarily due to interest expense on bank and related party notes payable of $344,496 for 2018 which was $126,989 or 58% greater than the $217,507 interest expense for that debt in 2017 offset by $(260,143) combined effect of amortization of discount to convertible note, accounting for derivative gain and debt extinguishment recognized in 2017.
Net Loss: Net loss of $8,475,313 in 2018 was $1,848,679, or 18%, less than the net loss in 2017 of $10,323,992 primarily due to the factors discussed above.
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There was no provision for income taxes for the fiscal years ended 2018 and 2017 due to a valuation allowance of $2,968,891 and $2,250,939 recorded for the years ended December 31, 2018 and 2017, respectively, on the total tax provision, because we believed that it is more likely than not that the tax asset will not be utilized during the next year.
Liquidity and Capital Resources
Liquidity is the ability of an enterprise to generate adequate amounts of cash to meet its needs for cash requirements. As of June 30, 2019, the Company had $675,772 in cash compared to $2,282,365 in cash at December 31, 2018, a decrease of $1,606,593. As of June 30, 2019, the Company had accounts receivable of $1,372,994 compared to $18,000 at December 31, 2018, an increase of $1,354,994 resulting from a sharp increase in revenue in June 2019.
The Company had total current assets of $3,702,189 and total current liabilities of $2,494,221 or working capital of $1,207,968 at June 30, 2019 compared to total current assets of $2,697,903 and total current liabilities of $2,485,024 or working capital of $212,879 at December 31, 2018.
We have historically financed our operations through operating revenues and sales of equity and convertible debt securities. Although as of June 30, 2019 we have cash of $675,772 and working capital of $1,207,968, we incurred a net loss of $1,049,360. Furthermore, the Company has a history of negative cash flow from operations, primarily due to historically heavy investment in research and development and costs associated with maintaining a public entity. We expect a substantial increase in revenues for the remainder of 2019. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.7 million which was announced in December 2018 and expected to be delivered by the end of 2019. To date in 2019, we have announced a $1.7 million follow on order to the $3.7 million order and a new order from the U.S. Army for $1.1 million. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity leaving only $2,000,000 in bank debt on the books. As of June 30, 2019, the Company has $1,207,968 in positive working capital, an improvement of nearly $1,000,000 over the capital balance at the end of 2018.
As of the date of this prospectus, we believe we have sufficient working capital, including cash on hand and accounts receivables, to continue our operations at the same level for the next 12 months. We may have to raise additional funds to effectuate all aspects of our business plan. We potentially will have to issue additional debt or equity or enter into a strategic arrangement with a third party to carry out some aspects of our business plan or potentially curtail some aspects of our future operations. If we need to raise additional funds through the issuance of equity, equity-related or convertible debt securities in the future, these securities may have rights, preferences or privileges senior to those of the rights of holders of our common stock. We cannot predict whether additional financing will be available to us on favorable terms when required, or at all. The issuance of additional common stock may have the effect of further diluting the proportionate equity interest and voting power of holders of our common stock. Historically, we have financed our cash needs by private placements of our securities and loans, bank financing and revenues from sales of our products. There is no assurance that we will be able to obtain financing on terms consistent with our past financings or satisfactory to us, if at all.
Other than the CNB Line of Credit as discussed below, we currently have no agreements, arrangements or understandings with any person to obtain funds through bank loans, lines of credit or any other sources. Consequently, our inability to raise funds to meet our expected working capital requirements will have a severe negative impact on our ability to remain a viable company. We are dependent upon our significant shareholders to provide or loan us funds to meet our working capital needs.
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Revolving Line of Credit from City National Bank of Florida. On August 2, 2017, the Company issued a promissory note to CNB in the principal amount of $2,000,000 (the “CNB Note”) with a maturity date of August 2, 2018. On September 26, 2018, the Company and CNB agreed to extend the maturity date of the CNB Note to August 2, 2019. On August 29, 2019, the Company and CNB agreed to extend the maturity date of the promissory note to August 2, 2020. The Company evaluated the modification under the Financial Accounting Standards Board’s (the “FASB”) Accounting Standards Codification (“ASC”) 470-50 and determined that it did not qualify as an extinguishment of debt. The CNB Note evidences the CNB Line of Credit with advances that may be requested by the Company until the maturity date of August 2, 2020 so long as no event of default exists under the CNB Note, the Company or Jay H. Nussbaum or his estate, the Company’s former Chairman of the Board and Chief Executive Officer, does not cease doing business, Mr. Nussbaum or his estate does not seek to revoke or modify his guarantee of the CNB Note, the Company does not misapply the proceeds of this loan or CNB in good faith does not believe itself insecure. The initial CNB Note bore an interest rate at a variable rate equal to 0.250 percentage points over the Wall Street Journal Prime Rate payable monthly. At renewal, the variable rate was modified to reflect the average of the interest rates per annum at which United States Dollars are offered in the London Interbank Borrowing Market (“Libor”) for a 30-day period (the “Index”) plus 2.9 percentage points over the Index, or a total of 5.09% annual interest rate as of August 29, 2019. The Company will pay to CNB a late charge of 5.0% of any monthly payment not received by CNB within 10 calendar days after its due date. The Company may prepay the CNB Note at any time without penalty. In the event of a default, the interest rate will increase to the highest lawful rate. The Company is obligated to maintain depository accounts with CNB with a minimum average annual balance of $1,600,000 in the aggregate with Mr. Nussbaum or his estate. In the event the Company does not maintain this account balance, CNB may charge the Company a fee equal to 2% of the deficiency as additional interest under the CNB Note. The CNB Note is personally guaranteed by Mr. Nussbaum and his estate pursuant to a written guarantee in favor of CNB. Mr. Nussbaum and his estate and the Company are obligated to maintain an aggregate unencumbered liquidity of no less than $6,000,000 in the form of cash, repurchase agreements, certificates of deposit or marketable securities acceptable to CNB. In addition, to secure the Company’s obligations under the CNB Note, the Company entered into a security agreement in favor of CNB encumbering all of the Company’s accounts, inventory and equipment along with an assignment of a bank account the Company maintains at CNB with a balance of $120,000. As of June 30, 2019, $2,000,000 has been drawn against the CNB Line of Credit. Accrued interest of $11,194 related to the CNB Line of Credit has been recorded as of June 30, 2019.
The accompanying consolidated financial statements and notes have been prepared assuming the Company will continue as a going concern. For the six months ended June 30, 2019, the Company incurred a net loss of $1,049,360, generated negative cash flow from operations, has an accumulated deficit of $39,521,450 and working capital of $1,207,968.
Going Concern
For the year ended December 31, 2017, the Company disclosed that its ability to continue as a going concern was predicated on the Company’s ability to create and market innovative products, raise capital, reduce debt or renegotiate terms, and to sustain adequate working capital to finance its operations. During 2018, the Company met or exceeded those predications. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.8 million in gross revenues which was received in December 2018 and expected to be delivered by the end of 2019. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity leaving only $2,000,000 in bank debt on the books. As of June 30, 2019, the Company has approximately $1,200,000 in working capital, an improvement of approximately $1,000,000 more than the Company’s working capital balance at the end of 2018. The Company announced its first-ever profitable financial results for the second quarter ended June 30, 2019.
The focus on opportunities for aerostats, the settlement of debt obligations, the funds generated from stock sales and other initiatives contributing to additional working capital should avoid any substantial doubt about the Company’s ability to continue as a going concern as defined by FASB Accounting Standards Update 2014-05, Disclosure of Uncertainties about an Entity’s ability to Continue as a Going Concern. We believe that the actions discussed above mitigate the substantial doubt raised by our recent operating losses and satisfy our estimated liquidity needs twelve months from the issuance of the financial statements. In light of the foregoing, our auditor did not include a going concern qualification in their audit report dated March 22, 2019 for the years ended December 31, 2018 and 2017 notwithstanding our historical operating losses and accumulated deficit. However, we cannot predict, with certainty, the outcome of our actions to generate liquidity and the failure to do so could negatively impact our future operations.
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Sources and Uses of Cash for the Six Months Ended June 30, 2019 and 2018
| Six Months Ended June 30, | ||||||||
| 2019 | 2018 | |||||||
| Cash flows used in operating activities | $ | (3,465,878 | ) | $ | (1,243,840 | ) | ||
| Cash flows (used in) provided by investing activities | (98,465 | ) | 58,070 | |||||
| Cash flows provided by financing activities | 1,957,750 | 1,000,000 | ||||||
| Net decrease in cash and cash equivalents | $ | (1,606,593 | ) | $ | (185,770 | ) | ||
Operating Activities
Net cash used in operating activities during the six months ended June 30, 2019 was $3,465,878, which was an increase of $2,222,038, or 179%, from $1,243,840 net cash used in operating activities for the same period in 2018. The net loss of $1,049,360 for the first six months of 2019 was $1,705,030 less than the same period of 2018, which was a net loss of $2,754,390. In addition to the decreased net loss, the Company recognized $1,089,891 less non-cash stock-based compensation in the first six months of 2019 than the same period in the 2018. During the first six months of 2019, the Company’s accounts receivable increased by $1,354,994, inventory increased by $1,151,740 and prepaid expenses increased by $104,145, primarily related to the production of WASP and WASP Lite systems that are being delivered between June 2019 and the end of the year.
Investing Activities
Net cash used in investing activities was $98,465 during the six months ended June 30, 2019 compared to $58,070 net cash provided by investing activities during the six months ended June 30, 2018. During the six months ended June 30, 2019, the Company invested $19,305 in computers for new hires. The Company also invested $59,660 in new shop equipment, $1,266 in office furnishings and $18,234 in leasehold improvements, primarily in connection with the opening of a satellite location for aerostat manufacturing.
Financing Activities
Net cash provided by financing activities was $1,957,750 during the six months ended June 30, 2019 compared to $1,000,000 net cash provided by debt borrowing for the same period in 2018. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Daniyel Erdberg, the Company’s CEO and President, in the amount of $50,000, and (4) a full-recourse promissory note payable by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000. Each note bears an interest rate at a fixed rate of 3% per annum and principal and interest under the notes may be prepaid at any time without penalty. The non-affiliate note was fully repaid on February 8, 2019, including $575 in accrued interest. Each of the Erdberg and Carpenter notes has a maturity date of January 25, 2020. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019. On April 30, 2019, Kendall Carpenter repaid the remaining principal balance of the $17,500 note, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 10,000 (100,000 pre-reverse split) shares of common stock paid pursuant to the note described above and cancelled the $50,000 note and the related $267 in accrued interest.
Sources and Uses of Cash for the Years Ended December 31, 2018 and 2017
| Years Ended Dec 31, | ||||||||
| 2018 | 2017 | |||||||
| Cash flows (used in) operating activities | $ | (2,387,731 | ) | $ | (3,326,022 | ) | ||
| Cash flows provided by (used in) investing activities | 54,721 | (73,817 | ) | |||||
| Cash flows provided by financing activities | 4,000,000 | 2,000,000 | ||||||
| Net increase (decrease) in cash and cash equivalents | $ | 1,666,990 | $ | (1,399,839 | ) | |||
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Operating Activities:
Net cash used in operating activities during 2018 was $2,387,731, which was a decrease of $938,291, or 28%, from $3,326,022 net cash used in operating activities during 2017. The net loss of $8,475,313 for 2018 was $1,848,679 less than the same period of 2017, which was $10,323,992. Inventory decreased $683,772 to $307,925 in 2018 primarily due to a write down of $565,406 for parts and finished goods not expected to be monetized in the next twelve months. The Company recorded $4,746,605 in non-cash stock-based compensation expenses which was a decrease of $1,856,201 in 2018 from the previous year. The company recognized a non-cash gain on derivative liability of $1,831,635 offset by $1,409,790 amortization of debt discount expense and $681,988 loss on debt extinguishment in 2017.
Investing Activities:
Net cash provided by investing activities was $54,721 in 2018 compared to $73,817 net cash used in investing activities in 2017, a positive difference of $128,538. Net cash provided by investing activities for 2018 was comprised of $60,000 from the sale of a vehicle partially offset in both periods by purchases of fixed assets that included shop machines and equipment, computers, electronics and furniture and equipment. The Company plans to invest in upgraded aerostat manufacturing equipment and leasehold improvements for newly leased space to accommodate expanded aerostat manufacturing in 2019.
Financing Activities:
Financing activities during 2018 included $1,000,000 proceeds from a bank line of credit, $1,000,000 proceeds from the related party Series 2017 Secured Convertible Note and $100,000 proceeds from a short-term related party note which was subsequently repaid. In 2018, financing activity included $2,000,000 proceeds from the sale of common stock.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have had or are reasonably likely to have a current or future material effect on our financial condition, changes in financial condition, revenues, expenses, results of operations, liquidity, capital expenditures or capital resources.
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth the names and ages of the members of our Board of Directors and our executive officers and the positions held by each. Our Board of Directors elects our executive officers annually by majority vote. Each director’s term continues until his or her successor is elected or qualified at the next annual meeting, unless such director earlier resigns or is removed.
| Name | Age | Positions and Offices | ||
| Daniyel Erdberg | 41 | Chief Executive Officer, President and Director | ||
| Kendall Carpenter | 63 | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | ||
| Felicia Hess | 52 | Chief Quality Officer | ||
| Timothy Hoechst | 53 | Director and Chairman of the Compensation Committee | ||
| John E. Miller | 78 | Director and Chairman of the Audit Committee | ||
| David Aguilar | 63 | Director and Chairman of the Board |
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Biographical information concerning our directors and executive officers listed above is set forth below.
Daniyel Erdberg. Mr. Erdberg served as the Company’s Chief Operating Officer from June 2014 to October 2015 and President from October 2015 to September 2019 when he also became Chief Executive Officer and a member of the Board of Directors. Mr. Erdberg has worked with our wholly-owned subsidiary, Lighter Than Air Systems (LTAS), for more than 7 years with a focus on advancing specialized tethered aerial solutions. Mr. Erdberg successfully developed and implemented LTAS’s aerial surveillance solutions in various vertical markets of Government and commercial sectors including multiple Department of Defense (DoD), Department of Homeland Security (DHS) and commercial customers. Over the past 15 years, Mr. Erdberg has played instrumental roles in building public and private companies involved in various technology sectors, including: software development, telecommunications, wireless networking and unmanned aerial systems. Mr. Erdberg graduated from Florida International University with a B.A. in International Business.
Kendall W. Carpenter, CPA, CGMA, CMA. Ms. Carpenter joined MacroSolve in 2006 as Controller. She was promoted to Executive Vice President and Chief Financial Officer in 2008 and transitioned to Drone Aviation in 2014. Ms. Carpenter is also the Corporate Secretary and Treasurer. Ms. Carpenter’s previous experience includes Division Controller with Allied Waste Industries, over 10 years of experience as the top financial officer of an enterprise software company with an international customer base and over 8 years of public accounting experience. Ms. Carpenter graduated with a B.S. in Accounting from Oklahoma State University and has earned the professional designations of Certified Public Accountant, Chartered Global Management Accountant and Certified Management Accountant.
Felicia Hess. Ms. Hess has served as our Chief Quality Officer since December 4, 2018. Prior to that time, she served as our Chief Operating Officer since October 2, 2015. Mr. Hess was appointed Chief Executive Officer and one of our directors upon the closing of the Share Exchange on June 3, 2014. She resigned those positions on October 2, 2015 Ms. Hess founded and began serving as President and a director of LTAS in 2009. Ms. Hess continued serving as President and a director of LTAS after it was sold in 2013 to World Surveillance Group Inc. (“WSGI”), a developer of lighter-than-air aerostats and unmanned aerial systems, and continued serving as President and a director of LTAS after it was acquired from WSGI by Drone Aviation Corp. until Drone Aviation Corp. merged with and into us. Ms. Hess leverages her background in marketing, web site development and customer acquisition to further the Company’s growth strategies. Ms. Hess graduated from the University of Virginia with a B.A. in Rhetoric and Communications.
Timothy Hoechst. Mr. Hoechst was appointed to our Board of Directors on December 13, 2017 and agreed to serve as Chair of the Compensation Committee. Prior to his retirement in June 2016, Mr. Hoechst held the position of Chief Technology Officer at Accenture Federal Services (AFS), a leading IT solutions provider to the US government from March 2015 until June 2016. At AFS, he was responsible for identifying and introducing new technologies to help the government with challenging IT problems. From March 2007 until March 2015, he served as Chief Technology Officer at Agilex Technologies, an IT consulting firm service the Department of Defense, Homeland Security and various government agencies. Agilex was acquired by AFS in 2015. From June 1997 until December 2006, Mr. Hoechst held senior positions at Oracle Corporation, including serving as Senior Vice President of the Public Sector Division. Mr. Hoechst has a B.A. in Computer Science from Harvard University. Mr. Hoechst’s government and management experience qualifies him to serve on the board of directors and its committees on which he serves.
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John E. Miller. Mr. Miller was appointed to our Board of Directors on December 13, 2017 and agreed to serve as Chair of the Audit Committee. From September 2007 to the present, General Miller has operated his own consulting practice providing operational and technical assessments in support of fielding new military hardware and innovations for military training and education. From January 2005 until August 2007, he served as a Divisional President for L-3 Communication providing linguist, intelligence analyst and technical support for deployed forces in 13 countries. From September 1997 to January 2005, LTG Miller was a regional Vice President for Oracle Corporation’s Public Sector Division. Lieutenant General Miller (Retired) is a decorated combat veteran who served in the US Army from 1963 to 1997. At the time of his retirement from active duty on September 1, 1997, he was serving as the Deputy Commanding General of the US Army Training and Doctrine Command (TRADOC) responsible for coordinating the implementation of the Army’s first digitized command and control system in a combat brigade. He also had multiple assignments at the US Army Command and General Staff College where help positions from Tactics Instructor to Commandant. While Commandant, he was concurrently responsible for 11 other Army Schools that provide tactical training and education for Commissioned and Non-Commissioned Officers. General Miller holds a B.S. in Mathematics from Missouri State University and an M.S. in Operations Research from Georgia Tech. He is a graduate of the Army Command and General Staff College and the Army War College. For these reasons, we believe General Miller has the requisite set of skills and experience to serve as a valuable member of our Board of Directors and its committees on which he serves.
David Aguilar. Mr. Aguilar was appointed to our Board of Directors on January 9, 2017. On September 4, 2019, following the demise of Jay Nussbaum, Mr. Aguilar was appointed Chairman of the Board. Since February 2013, Mr. Aguilar has been a principal at Global Security Innovation Strategies, LLC. In April 2010, Mr. Aguilar became Deputy Commissioner of U.S. Customs and Border Protection (“CBP”) and, from December 2011 until his retirement in February 2013, he served as acting Commissioner of CBP. From July 2004 to January 2010, he served as Chief of the U.S. Border Patrol within the CBP. As Acting Commissioner of CBP, Mr. Aguilar took the helm of a workforce of 60,000 agents, officers, and other personnel with responsibility for strategic planning and oversight of an annual budget of nearly $12 billion. Mr. Aguilar is a recipient of the 2005 President’s Meritorious Excellence Award, and in 2008, was a recipient of the Presidential Rank Award. Prior to joining the CBP, Mr. Aguilar held a variety of operational and administrative positions within the U.S. Board Patrol since entering duty in June 1978. Mr. Aguilar holds an Associate Degree in Accounting from Laredo Community College and attended Laredo State University and the University of Texas at Arlington. He is a graduate of the Senior Executive Fellows program at Harvard University’s John F. Kennedy School of Government. Mr. Aguilar’s government and management experience qualifies him to serve on the board of directors.
Meetings of the Board of Directors
During the six months ended June 30, 2019, our Board of Directors held one meeting and approved certain actions by unanimous written consent. During the fiscal year ended December 31, 2018, our Board of Directors held three meetings and approved certain actions by unanimous written consent. We expect our directors to attend all meetings of the Board of Directors and the committees thereof on which such directors serve and to spend the time needed to prepare for such meetings and meet as frequently as necessary to properly discharge their responsibilities.
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Board Committees and Director Independence
Our common stock is presently quoted on the OTCQB under the symbol “DRNE”. Under the rules of the OTCQB, we are not required to maintain a majority of independent directors on our Board of Directors and we are not required to establish committees of the Board of Directors consisting of independent directors. However, we have applied to list our common stock and warrants on the Nasdaq Capital Market (“NASDAQ”). In order to list our securities on the NASDAQ, we are required to comply with the NASDAQ standards relating to corporate governance, requiring, among other things, that:
| ● | A majority of our Board of Directors to consist of “independent directors” as defined by the applicable rules and regulations of the NASDAQ; |
| ● | The compensation of our executive officers to be determined, or recommended to the Board of Directors for determination, by independent directors constituting a majority of the independent directors of the Board in a vote in which only independent directors participate or by a Compensation Committee comprised solely of independent directors; |
| ● | That director nominees to be selected, or recommended to the Board of Directors for selection, by independent directors constituting a majority of the independent directors of the Board in a vote in which only independent directors participate or by a nomination committee comprised solely of independent directors; and |
| ● | Establishment of an audit committee with at least three independent directors as well as composed entirely of independent directors, where at least one of the independent directors qualifies as an audit committee financial expert under SEC rules and as a financially sophisticated audit committee member under the applicable Exchange rules. |
Under applicable NASDAQ rules, a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries. Our Board of Directors has determined in its business judgment that General John Miller and Mr. Hoechst are independent within the meaning of the NASDAQ rules for U.S. Companies, the Sarbanes-Oxley Act and related SEC rules. The Company has commenced a search for an additional director following Mr. Guerra’s resignation on September 4, 2019. Prior to the closing of the Offering, we expect to appoint the replacement director and that the replacement director to be independent and to serve on the Audit, Compensation and Nominating and Corporate Governance Committees. Thereafter, a majority of the members of our Board of Directors will be independent.
In addition, our Board of Directors has three standing committees: an Audit Committee, a Compensation Committee and Nominating and Corporate Governance Committee.
Audit Committee
The Board of Directors has adopted a written charter for the Audit Committee. Our Audit Committee is responsible for: (1) the integrity of our financial reporting process, systems of internal controls, and financial statements and reports; (2) the compliance by us with legal and regulatory requirements; and (3) the appointment, compensation and oversight of our independent auditor’s preparation and issuance of an audit report or related work. A more detailed description of our Audit Committee’s purposes and responsibilities is contained in its charter. The Audit Committee is currently comprised of Chairman General John Miller and Timothy Hoechst. Prior to the closing of the Offering, we expect to appoint the replacement director and that the replacement director to serve as a member of the Audit Committee. Following the appointment of the replacement director, our Board of Directors anticipates making the determination in its business judgment that all of the members of our Audit Committee will be independent within the meaning of the NASDAQ rules for U.S. Companies, the Sarbanes-Oxley Act and related SEC rules. Director Miller is an “audit committee financial expert” within the meaning of Item 407(d)(5)(ii) of Regulation S-K and NASDAQ Rule 5605(c)(2)(A). During the six months ended June 30, 2019, our Audit Committee held one meeting independent of the Board of Directors. During the fiscal year ended December 31, 2018, our Audit Committee held one meeting independent of the Board of Directors.
Compensation Committee
Our Board of Directors has adopted a written charter setting forth the authority and responsibilities of the Compensation Committee. Our Compensation Committee has responsibility for assisting the Board of Directors in, among other things, evaluating and making recommendations regarding the compensation of our executive officers and directors, assuring that the executive officers are compensated effectively in a manner consistent with our stated compensation strategy, producing an annual report on executive compensation in accordance with the rules and regulations promulgated by the SEC, periodically evaluating the terms and administration of our incentive plans and benefit programs, and monitoring of compliance with the legal prohibition on loans to our directors and executive officers. A more detailed description of our Compensation Committee’s purposes and responsibilities is contained in its charter. The Compensation Committee is comprised of Chairman Timothy Hoechst and General John Miller. Prior to the closing of the Offering, we expect to appoint the replacement director and that the replacement director to serve as a member of the Compensation Committee. Following the appointment of the replacement director and member of this committee, our Board of Directors anticipates making the determination in its business judgment that a majority of our Compensation Committee will be independent within the meaning of the NASDAQ rules for U.S. Companies and SEC rules. During the six months ended June 30, 2019, our Compensation Committee held one meeting. During the fiscal year ended December 31, 2018, our Compensation Committee held one meeting.
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Nominating and Corporate Governance Committee
Our Board of Directors has adopted a written charter setting forth the authority and responsibilities of the Nominating and Corporate Governance Committee. Our Nominating and Corporate Governance Committee has responsibility for assisting the Board of Directors in, among other things, identifying individuals qualified to become board members and recommending director, nominees and board members for committee membership, developing and recommending to our board corporate governance guidelines, review and determine the compensation arrangements for directors, and overseeing the evaluation of our board of directors and its committees and management. The Nominating and Corporate Governance Committee is comprised of Timothy Hoechst and General John Miller. Prior to the closing of the Offering, we expect to appoint the replacement director and that the replacement director to serve as a member and Chairman of the Nominating and Corporate Governance Committee. Following the appointment of the replacement director and member of this committee, our Board of Directors anticipates making the determination in its business judgment that a majority of our Nominating and Corporate Governance Committee will be independent within the meaning of the NASDAQ rules for U.S. Companies and SEC rules. The Nominating and Corporate Governance Committee was recently formed on May 2, 2019 and, therefore, did not hold any meetings during the six months ended June 30, 2019 or the fiscal year ended December 31, 2018.
Board Leadership Structure and Role in Risk Oversight
David Aguilar is the Chairman of the Board. The Chairman has authority, among other things, to preside over Board meetings and set the agenda for Board meetings. Accordingly, the Chairman has substantial ability to shape the work of our Board. We currently believe that separation of the roles of Chairman (David Aguilar) and Chief Executive Officer (Daniyel Erdberg) ensures appropriate oversight by the Board of our business and affairs. However, no single leadership model is right for all companies and at all times. The Board recognizes that depending on the circumstances, other leadership models, such as the appointment of a lead independent director, might be appropriate. Accordingly, the Board may periodically review its leadership structure. In addition, following the completion of the offering, the Board will hold executive sessions in which only independent directors are present.
Our Board of Directors is primarily responsible for overseeing our risk management processes. Our Board of Directors receives and reviews periodic reports from management, auditors, legal counsel, and others, as considered appropriate regarding our Company’s assessment of risks. The Board of Directors focuses on the most significant risks facing our Company and our Company’s general risk management strategy, and also ensures that risks undertaken by our Company are consistent with the Board’s appetite for risk. While the Board oversees our Company, our Company’s management is responsible for day-to-day risk management processes. We believe this division of responsibilities is the most effective approach for addressing the risks facing our Company and that our Board leadership structure supports this approach.
Compensation Committee Interlocks and Insider Participation
None of the members of our Compensation Committee, at any time, has been one of our officers or employees. None of our executive officers currently serves, or in the past year has served, as a member of the Board of Directors or Compensation Committee of any entity that has one or more executive officers on our Board of Directors or Compensation Committee. For a description of transactions between us and members of our Compensation Committee and affiliates of such members, please see “Certain Relationships and Related Party Transactions”.
Code of Ethics
The Company has adopted a Code of Ethics and Business Conduct that applies to all of its directors, officers (including our principal executive officer, principal financial officer, principal accounting officer or controller, and any person performing similar functions) and employees. The Code of Ethics and Business Conduct is available on our website at ir.droneaviationcorp.com/governance-docs.
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The following table provides certain summary information concerning compensation awarded to, earned by or paid to our named executive officers during the fiscal years ended December 31, 2018 and 2017. Named executive officers includes our Chief Executive Officer and our two other most highly compensated officers in the fiscal years ended December 31, 2018 and 2017.
| Name and Principal Position | Year | Salary ($) |
Bonus ($) |
Stock Awards ($)(4) |
Option Awards ($)(5) |
All Other Compensation ($) | Total ($) |
|||||||||||||||||||
| Jay Nussbaum, | 2018 | 245,000 | 225,000 | 315,000 | 848,017 | 29,096 | 1,662,113 | |||||||||||||||||||
| Former Chief Executive Officer and Chairman (1) | 2017 | 128,000 | 0 | 0 | (1) | 2,380,417 | 0 | 2,508,417 | ||||||||||||||||||
| Felicia Hess, | 2018 | 150,833 | 25,000 | 302,050 | 347,904 | 22,744 | 848,531 | |||||||||||||||||||
| Chief Quality Officer (2) | 2017 | 150,000 | 0 | 0 | (2) | 1,182,460 | 0 | 1,332,460 | ||||||||||||||||||
| Daniyel Erdberg, | 2018 | 165,833 | 175,000 | 232,750 | 347,904 | 17,525 | 939,012 | |||||||||||||||||||
Chief Executive Officer, President and Director (3) |
2017 | 156,250 | 0 | 0 | (3) | 1,035,378 | 3,500 | 1,195,128 | ||||||||||||||||||
| (1) | On August 31, 2019, Jay H. Nussbaum, the Company’s Chairman of the Board and Chief Executive Officer passed away. For service as Chief Executive Officer in 2018, Mr. Nussbaum received one option award. On August 22, 2018, Mr. Nussbaum was awarded a Stock Option to purchase 195,000 (1,950,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued as 235,000 (2,350,000 pre-reverse split) shares with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $848,017 expense in 2018 on the September 26, 2018 Option award. Mr. Nussbaum received a bonus of $29,096 for taxes paid on his behalf on the March 28, 2018 vesting of 45,000 (450,000 pre-reverse split) shares of stock issued in September 2016 valued at $315,000 on the date vested. Mr. Nussbaum earned a 2018 year-end bonus of $225,000 of which $125,000 was paid in 2018 and the balance of $100,000 to be paid in 2019.
For service as Chief Executive Officer in 2017, Mr. Nussbaum received two option awards. The first award of 200,000 (2,000,000 pre-reverse split) option shares were immediately vested with a strike price of $10.00 ($1.00 pre-reverse split) and an expiration date of August 3, 2021 and valued at $1,284,925. The second award of 90,000 (900,000 pre-reverse split) option shares were immediately vested with a strike price of 13.50 ($1.35 pre-reverse split) and an expiration date of November 9, 2021 and valued at $830,734. On December 21, 2018 these two 2017 options were modified to an exercise price of $5.00 ($0.50 pre-reverse split) per share. The Company recognized an additional $164,156 and $100,602 expense in 2018 on these August 3 and November 9, 2017 option awards, respectively. |
| (2) | On December 4, 2018 Ms. Hess’s title changed to Chief Quality Officer.
For service as Chief Operating Officer and Chief Quality Officer in 2018, Ms. Hess received one option award. On August 22, 2018, Ms. Hess was awarded a Stock Option to purchase 80,000 (800,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued as 100,000 (1,000,000 pre-reverse split) shares with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $347,904 expense in 2018 on the September 26, 2018 Option award. Ms. Hess received a bonus of $22,744 for taxes paid on her behalf on the March 28, 2018 vesting of 43,150 (431,500 pre-reverse split) shares of stock issued in September 2016 valued at $302,050 on the date vested. Ms. Hess earned a 2018 year-end bonus of $25,000 of which $0 was paid in 2018 and the balance of $25,000 to be paid in 2019. |
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| For service as Chief Operating Officer in 2017, Ms. Hess received two option awards. The first award of 120,000 (1,200,000 pre-reverse split) option shares were immediately vested with a strike price of $10.00 ($1.00 pre-reverse split) and an expiration date of August 3, 2021 and valued at $773,522. The second award of 30,000 (300,000 pre-reverse split) option shares were immediately vested with a strike price of $13.50 ($1.35 pre-reverse split) and an expiration date of November 9, 2021 and valued at $276,911. On December 21, 2018 these two 2017 options were modified to an exercise price of $5.00 ($0.50 pre-reverse split) per share. The Company recognized an additional $98,493 and $33,534 expense in 2018 on these August 3 and November 9, 2017 option awards, respectively. | |
| (3) | On September 4, 2019, Mr. Erdberg was named Chief Executive Office and was appointed as a Director. For service as President in 2018, Mr. Erdberg received one option award. On August 22, 2018, Mr. Erdberg was awarded a Stock Option to purchase 80,000 (800,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued as 100,000 (1,000,000 pre-reverse split) shares with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $347,904 expense in 2018 on the September 26, 2018 Option award. Mr. Erdberg received a bonus of $17,525 for taxes paid on his behalf on the March 28, 2018 vesting of 33,250 (332,500 pre-reverse split) shares of stock issued in September 2016 valued at $232,750 on the date vested. Mr. Erdberg earned a 2018 year-end bonus of $175,000 of which $150,000 was paid in 2018 and the balance of $25,000 to be paid in 2019.
For service as President in 2017, Mr. Erdberg received two option awards. The first award of 114,000 (1,140,000 pre-reverse split) option shares were immediately vested with a strike price of $10.00 ($1.00 pre-reverse split) and an expiration date of August 3, 2021 and valued at $734,846. The second award of 20,000 (200,000 pre-reverse split) option shares were immediately vested with a strike price of $13.50 ($1.35 pre-reverse split) and an expiration date of November 9, 2021 and valued at $184,607. On December 21, 2018 these two 2017 options were modified to an exercise price of $5.00 ($0.50 pre-reverse split) per share. The Company recognized an additional $93,569 and $22,356 expense in 2018 on these August 3 and November 9, 2017 option awards, respectively. |
| (4) | Amounts shown in the “Stock Awards” column reflect the aggregate grant date fair value calculated in accordance with FASB ASC 718 for the respective fiscal year with respect to shares of restricted stock and immediately vested shares granted to our named executive officers. Amounts reflect our accounting for these awards and do not necessarily correspond to the actual values that may be realized by our named executive officers. The grant date fair values of shares of restricted stock and immediately vested shares were determined as of the grant date using the closing bid price of our common stock on the grant date. The assumptions used for the valuations are set forth in Note 9 – Shareholder Equity in the Notes to the December 31, 2018 audited financial statements. Pursuant to SEC rules, we disregarded the estimates of forfeitures related to service-based vesting conditions. See the Outstanding Equity Awards at Fiscal Year-End Table in this Annual Report and related notes for information with respect to equity awards made prior to fiscal 2017. |
| (5) | Amounts shown in the “Option Awards” column reflect the aggregate grant date fair value calculated in accordance with FASB ASC 718 for the respective fiscal year with respect to stock options granted to our named executive officers. Amounts reflect our accounting for these option grants and do not necessarily correspond to the actual values that may be realized by our named executive officers. The grant date fair values of these option grants were calculated at the grant date using the Black-Scholes-Merton option-pricing model. The assumptions used for the valuations are set forth in Note 11 – Employee Stock Options in the notes to 2018 audited financial statements. Pursuant to SEC rules, we disregarded the estimates of forfeitures related to service-based vesting conditions. See the Outstanding Equity Awards at Fiscal Year-End Table in this prospectus and related notes for information with respect to stock options granted prior to fiscal 2017. |
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Employment Contracts and Potential Payments Upon Termination or Change in Control
Except as set forth below, we currently have no written employment agreements with any of our officers, directors, or key employees.
Jay Nussbaum Employment Agreement. On April 27, 2016, we entered into an Employment Agreement with Jay Nussbaum (as amended, the “Nussbaum Employment Agreement”), whereby Mr. Nussbaum agreed to serve as our Chief Executive Officer and a director (with such service as a director subject to the terms of a Director Agreement, dated June 1, 2015) for a period of two (2) years and twenty-two (22) days, subject to renewal for successive one year terms, in consideration of an annual salary of $1 base salary. The Nussbaum Employment Agreement was subsequently amended to extend the term of Mr. Nussbaum’s employment to December 31, 2018. On December 4, 2018, the Nussbaum Employment Agreement was amended to reflect an increase in Mr. Nussbaum’s base salary to $300,000 and to extend his term of employment to December 31, 2019. Additionally, Mr. Nussbaum is eligible for an annual cash bonus in an amount equal to up to one hundred fifty percent (150%) of his then-current base salary if we meet or exceed criteria adopted by the Compensation Committee of the Board of Directors. Mr. Nussbaum shall also be eligible for grants of awards under stock option or other equity incentive plans of our Company as our Compensation Committee may from time to time determine and shall be entitled to participate in all benefits plans we provide to our senior executives. We shall reimburse Mr. Nussbaum for all reasonable out-of-pocket expenses actually incurred or paid by Mr. Nussbaum in the course of his employment. In the event Mr. Nussbaum’s employment is terminated without Cause or by Mr. Nussbaum with Good Reason (as such terms, including death, are defined in the Nussbaum Employment Agreement), then in addition to receiving accrued but unpaid compensation and vacation pay through the end of the term of employment, benefits accrued and outstanding under benefit plans, and the reimbursement of documented, unreimbursed expenses prior to the date of termination, Mr. Nussbaum will be entitled to receive severance benefits equal to six months of his then-current base salary, continued coverage under our benefit plans for a period of twelve months and payment of his pro-rated earned annual bonus. Mr. Nussbaum has also agreed to non-competition and non-solicitation provisions effective during his term of employment and for one year thereafter. Mr. Nussbaum passed away on August 31, 2019.
Felicia Hess Employment Agreement. On May 18, 2015, we entered into an employment agreement with Felicia Hess (as amended, the “F. Hess Employment Agreement”), whereby Ms. Hess agreed to serve as our Chief Executive Officer and director for a period of two (2) years, subject to renewal for successive one-year terms, in consideration for an annual salary of $150,000. On October 2, 2015, Ms. Hess resigned as Chief Executive Officer and as a director, and the F. Hess Employment Agreement was amended to reflect Ms. Hess’s appointment as Chief Operating Officer. The F. Hess Employment Agreement was subsequently amended to extend the term of Ms. Hess’s employment to December 31, 2018. On December 4, 2018, the F. Hess Employment Agreement was amended to reflect an increase in Ms. Hess’ base salary to $160,000 and to extend her term of employment to December 31, 2019. Ms. Hess title was also changed to Chief Quality Officer. Under the F. Hess Employment Agreement, Ms. Hess is eligible for an annual cash bonus in an amount equal to up to one hundred fifty percent (150%) of her then-current base salary if we meet or exceed criteria adopted by the Compensation Committee of the Board of Directors. Ms. Hess shall also be eligible for grants of awards under stock option or other equity incentive plans of our Company as our Compensation Committee may from time to time determine and shall be entitled to participate in all benefits plans we provide to our senior executives. We shall reimburse Ms. Hess for all reasonable out-of-pocket expenses actually incurred or paid in the course of her employment. In the event Ms. Hess’ employment is terminated without Cause or by Ms. Hess with Good Reason (as such terms are defined in the F. Hess Employment Agreement), then in addition to receiving accrued but unpaid compensation and vacation pay through the end of the term of employment, benefits accrued and outstanding under benefit plans, and the reimbursement of documented, unreimbursed expenses prior to the date of termination, Ms. Hess shall be entitled to receive severance benefits equal to six months of her then-current base salary, continued coverage under our benefit plans for a period of twelve months, payment of her pro-rated earned annual bonus, and the vesting of all unvested options or restricted stock awards will be accelerated. Ms. Hess has also agreed to non-competition and non-solicitation provisions during her term of employment and for one year thereafter.
Daniyel Erdberg Employment Agreement. On May 18, 2015, we entered into an employment agreement with Daniyel Erdberg (as amended, the “Erdberg Employment Agreement”), whereby Mr. Erdberg agreed to serve as our Chief Operating Officer for a period of two (2) years, subject to renewal for successive one-year terms, in consideration for an annual salary of $140,000. On October 2, 2015, Mr. Erdberg resigned as Chief Operating Officer, and the Erdberg Employment Agreement was amended to reflect his appointment as President of the Company. The Erdberg Employment Agreement was subsequently further amended to increase Mr. Erdberg’s base salary to $150,000 and to extend his term of employment to December 31, 2018. On August 3, 2017, the Erdberg Employment Agreement was amended to reflect an increase in Mr. Erdberg’s base salary to $165,000. On December 4, 2018, the Erdberg Employment Agreement was amended to reflect an increase in Mr. Erdberg’s base salary to $175,000 and to extend his term of employment to December 31, 2019. On September 4, 2019, the Erdberg Employment Agreement was amended to reflect his appointment as Chief Executive Officer and Director and an increase in his base salary to $250,000 and to extend the term of his employment to December 31, 2020. Under the Erdberg Employment Agreement, Mr. Erdberg is eligible for an annual cash bonus in an amount equal to up to one hundred fifty percent (150%) of his then-current base salary if we meet or exceed criteria adopted by the Compensation Committee of the Board of Directors. Mr. Erdberg shall also be eligible for grants of awards under stock option or other equity incentive plans of our Company as the Compensation Committee may from time to time determine and shall be entitled to participate in all benefits plans we provide to our executives. We shall reimburse Mr. Erdberg for all reasonable out-of-pocket expenses actually incurred or paid in the course of his employment. In the event Mr. Erdberg’s employment is terminated without Cause or by Mr. Erdberg with Good Reason (as such terms are defined in the Erdberg Employment Agreement), then in addition to receiving accrued but unpaid compensation and vacation pay through the end of the term of employment, benefits accrued and outstanding under benefit plans, and the reimbursement of documented, unreimbursed expenses prior to the date of termination, Mr. Erdberg shall be entitled to receive severance benefits equal to six months of his then-current base salary, continued coverage under our benefit plans for a period of twelve months after his termination date and payment of his pro-rated earned annual bonus. Mr. Erdberg has also agreed to non-competition and non-solicitation provisions during the term of his employment and for one year thereafter.
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2015 Equity Incentive Plan
The Board of Directors and shareholders holding a majority of the Company’s voting capital approved and adopted the 2015 Equity Incentive Plan (the “2015 Plan”) on September 4, 2015 and October 1, 2015, respectively. The 2015 Plan authorizes the issuance of up to an aggregate maximum of 1,000,000 (10,000,000 pre-reverse split) shares of the common stock, subject to adjustment as described in the 2015 Plan. The 2015 Plan shall be administered by the Board or one or more committees appointed by the Board or another committee (“Administrator”). The Administrator, in its discretion, selects the individuals to whom awards may be granted, the time or times at which such awards are granted, and the terms of such awards. The 2015 Plan authorizes the Company to grant stock options, stock appreciation rights, restricted shares, restricted share unit, cash awards, other awards, and performance-based awards. Awards may be granted to the Company’s officers, employees, directors and consultants.
The purpose of 2015 Plan is to promote the success of the Company and to increase stockholder value by providing an additional means through the grant of awards to attract, motivate, retain and reward selected employees and other eligible persons. The Board may, at any time, terminate or, from time to time, amend, modify or suspend this 2015 Plan, in whole or in part. To the extent then required by applicable law or any applicable stock exchange or required under the Internal Revenue Code to preserve the intended tax consequences of the 2015 Plan, or deemed necessary or advisable by the Board, the 2015 Plan and any amendment to the 2015 Plan shall be subject to stockholder approval. Unless earlier terminated by the Board, the 2015 Plan will terminate ten years from the date of adoption.
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth outstanding equity awards to our named executive officers as of December 31, 2018.
| Pre- Reverse Split Option awards | ||||||||||||||||||
| Name | Post Reverse Split Number of securities underlying unexercised options (#) exercisable | Post Reverse Split Option exercise price ($) | Number of securities underlying unexercised options (#) exercisable | Option exercise price ($) | Option expiration date | |||||||||||||
| (a) | (b) | (e) | (b) | (e) | (f) | |||||||||||||
| Jay Nussbaum | ||||||||||||||||||
| Option Grant | 200,000 | 5.00 | 2,000,000 | 0.50 | 8/3/2021 | |||||||||||||
| Option Grant | 90,000 | 5.00 | 900,000 | 0.50 | 11/9/2021 | |||||||||||||
| Option Grant | 235,000 | 6.50 | 2,350,000 | 0.65 | 9/26/2022 | |||||||||||||
| Kendall Carpenter | ||||||||||||||||||
| Option Grant | 27,500 | 5.00 | 275,000 | 0.50 | 8/3/2021 | |||||||||||||
| Option Grant | 17,000 | 5.00 | 170,000 | 0.50 | 11/9/2021 | |||||||||||||
| Option Grant | 13,000 | 10.00 | 130,000 | 1.00 | 5/16/2022 | |||||||||||||
| Option Grant | 30,000 | 6.50 | 300,000 | 0.65 | 9/26/2022 | |||||||||||||
| Felicia Hess | ||||||||||||||||||
| Option Grant | 120,000 | 5.00 | 1,200,000 | 0.50 | 8/3/2012 | |||||||||||||
| Option Grant | 30,000 | 5.00 | 300,000 | 0.50 | 11/9/2021 | |||||||||||||
| Option Grant | 100,000 | 6.50 | 1,000,000 | 0.65 | 9/26/2022 | |||||||||||||
| Daniyel Erdberg | ||||||||||||||||||
| Option Grant | 114,000 | 5.00 | 1,140,000 | 0.50 | 8/3/2012 | |||||||||||||
| Option Grant | 20,000 | 5.00 | 200,000 | 0.50 | 11/9/2021 | |||||||||||||
| Option Grant | 100,000 | 6.50 | 1,000,000 | 0.65 | 9/26/2022 | |||||||||||||
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Director Compensation
Each of our non-employee directors receives an annual cash retainer that ranges between $24,000 and $36,000. We reimburse our non-employee directors for reasonable travel expenses incurred in attending board and committee meetings. Our non-employee directors also participate in our equity compensation plans.
2018 Director Compensation Table
The following table sets forth director compensation for the fiscal year ended December 31, 2018 (excluding compensation to the Company’s executive officers set forth in the summary compensation table below).
| Name | Fees Earned | Stock Awards(1) | Total ($) | |||||||||
| Robert Guerra(2) | $ | 20,500 | $ | 32,611 | $ | 53,111 | ||||||
| David Aguilar(3) | $ | 26,500 | $ | 120,073 | $ | 146,573 | ||||||
| Timothy Hoechst(4) | $ | 26,500 | $ | 46,096 | $ | 72,596 | ||||||
| LTG John E. Miller (Ret.)(5) | $ | 38,500 | $ | 46,009 | $ | 84,509 | ||||||
| Total: | $ | 112,000 | $ | 244,786 | $ | 356,789 | ||||||
| (1) | The amounts reflected for Stock Awards in the table above represent the dollar amount recognized for financial statement reporting purposes with respect to the fair value of securities granted in accordance with SFAS 123R. Pursuant to SEC rules, the amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions. These amounts reflect our accounting expense for these awards, and do not correspond to the actual value that may be realized upon exercise. |
| (2) | Mr. Guerra was appointed on March 28, 2018 for a term of two years and, pursuant to the terms of a Director Agreement, will be paid an annual fee of $24,000 and was awarded Stock Options (the “Director Options”) to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share valued at $38,393 on the date of the award, with $21,739 expense recognized in 2018 and $16,54 expense to be recognized. The Director Options vest as follows: 5,000 (50,000 pre-reverse split) shares one year after the date of appointment so long as he is a member of the Board and 5,000 (50,000 pre-reverse split) shares two years after the date of appointment so long as he is a member of the Board. Mr. Guerra’s appointment will terminate, however, upon his resignation, removal or failure to be appointed or re-appointed by the Company’s shareholders as a director of the Company as provided for in its bylaws or as provided for under Nevada law, or upon request of the Company’s Chief Executive Officer. Mr. Guerra voluntarily resigned effective September 4, 2019 resulting in the forfeiture of 5,000 (50,000 pre-reverse split) unvested options. The 5,000 (50,000 pre-reverse split) vested but unexercised options expired on October 4, 2019.
On August 22, 2018, Mr. Guerra was awarded a Stock Option to purchase 2,500 (25,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. On September 26, 2018, the August 22, 2018 Option was cancelled and reissued with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $10,872 expense in 2018 on the September 26, 2018 Option award. The vested but unexercised option expired on October 4, 2019. |
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| (3) |
Mr. Aguilar was appointed on January 9, 2017 for a term of two years and, pursuant to the terms of a Director Agreement with Global Security Innovative Strategies, LLC (“GSIS”), will be paid an annual fee of $24,000 and was awarded Stock Options (the “Director Options”) to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $29.00 ($2.90 pre-reverse split) per share. Mr. Aguilar has been reappointed for another two-year term through January 9, 2021 at the same annual fee of $24,000. On September 4, 2019, Mr. Aguilar was named Chairman of the Board and his Director Agreement was amended to reflect an annual fee of $120,000. The Company recognized $45,516 expense in 2018 related to the Director Options. The Director Options vest as follows: 5,000 (50,000 pre-reverse split) shares one year after the date of appointment so long as he is a member of the Board and 5,000 (50,000 pre-reverse split) shares two years after the date of appointment so long as he is a member of the Board. The Director Options became fully vested on January 2, 2019.
On August 22, 2018, Mr. Aguilar was awarded a Stock Option to purchase 15,000 (150,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $65,232 expense in 2018 on the September 26, 2018 Option award. |
| On August 3, 2017, Mr. Aguilar was awarded a Stock Option to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and immediate vesting. On November 9, 2017, Mr. Aguilar was awarded a Stock Option to purchase 1,000 (10,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and immediate vesting. On December 21, 2018 these two options were modified to an exercise price of $5.00 ($0.50 pre-reverse split) per share. The Company recognized an additional $8,208 and $1,117 expense in 2018 on these August 3 and November 9, 2017 option awards, respectively. |
| (4) | Mr. Hoechst was appointed on December 13, 2017 for a term of two years and, pursuant to the terms of a Director Agreement, will be paid an annual fee of $24,000 and was awarded Stock Options (the “Director Options”) to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share valued at $49,733 on the date of award. The Company recognized $35,224 expense in 2018 with $12,778 expense to be recognized The Director Options vest as follows: 5,000 (50,000 pre-reverse split) shares one year after the date of appointment so long as he is a member of the Board and 5,000 (50,000 pre-reverse split) shares two years after the date of appointment so long as he is a member of the Board. Mr. Hoechst’s appointment will terminate, however, upon his resignation, removal or failure to be appointed or re-appointed by the Company’s shareholders as a director of the Company as provided for in its bylaws or as provided for under Nevada law, or upon request of the Company’s Chief Executive Officer.
On August 22, 2018, Mr. Hoechst was awarded a Stock Option to purchase 2,500 (25,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $10,872 expense in 2018 on the September 26, 2018 Option award. |
| (5) | Mr. Miller was appointed on December 13, 2017 for a term of two years and, pursuant to the terms of a Director Agreement, will be paid an annual fee of $36,000 and was awarded Stock Options (the “Director Options”) to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share valued at $49,699 on the date of award. The Company recognized $35,137 expense in 2018 with $12,770 expense to be recognized. The Director Options vest as follows: 5,000 (50,000 pre-reverse split) shares one year after the date of appointment so long as he is a member of the Board and 5,000 (50,000 pre-reverse split) shares two years after the date of appointment so long as he is a member of the Board. Mr. Miller’s appointment will terminate, however, upon his resignation, removal or failure to be appointed or re-appointed by the Company’s shareholders as a director of the Company as provided for in its bylaws or as provided for under Nevada law, or upon request of the Company’s Chief Executive Officer.
On August 22, 2018, Mr. Miller was awarded a Stock Option to purchase 2,500 (25,000 pre-reverse split) shares of the Company’s common stock with an exercise price of $10.00 ($1.00 pre-reverse split) per share and a performance vesting condition. One September 26, 2018, the August 22, 2018 Option was cancelled and reissued with an exercise price of $6.50 ($0.65 pre-reverse split) per share. On December 27, 2018, the option became fully vested. The Company recognized $10,872 expense in 2018 on the September 26, 2018 Option award. |
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Under Item 404 of SEC Regulation S-K, a related person transaction is any actual or proposed transaction, arrangement or relationship or series of similar transactions, arrangements or relationships, including those involving indebtedness not in the ordinary course of business, to which we or our subsidiaries were or are a party, or in which we or our subsidiaries were or are a participant, in which the amount involved exceeded or exceeds the lesser of $120,000 or one percent of the average of our total assets at year-end for the last two completed fiscal years and in which any of our directors, nominees for director, executive officers, beneficial owners of more than 5% of any class of our voting securities (a “significant shareholder”), or any member of the immediate family of any of the foregoing persons, had or will have a direct or indirect material interest.
We recognize that transactions between us and any of our directors or executives or with a third party in which one of our officers, directors or significant shareholders has an interest can present potential or actual conflicts of interest and create the appearance that our decisions are based on considerations other than the best interests of our Company and stockholders.
The Audit Committee of the Board of Directors is charged with responsibility for reviewing, approving and overseeing any transaction between the Company and any related person (as defined in Item 404 of Regulation S-K), including the propriety and ethical implications of any such transactions, as reported or disclosed to the Audit Committee by the independent auditors, employees, officers, members of the Board of Directors or otherwise, and to determine whether the terms of the transaction are not less favorable to us than could be obtained from an unaffiliated party.
From time to time we engage in transactions with related parties. The following is a summary of the related party transactions during the six months ended June 30, 2019 and the fiscal years ended December 31, 2018 and 2017 requiring disclosure pursuant to Item 404 of Regulation S-K.
Series 2016 Convertible Notes
On September 29, 2016, the Company issued Convertible Promissory Notes Series 2016 due October 1, 2017 in the aggregate principal amount of $3,000,000 in a private placement to the former Chairman of the Board and the Chairman of the Strategic Advisory Board of the Company, both of whom are greater than 10% shareholders of the Company. The notes bear interest at a rate of six percent (6%) per annum. The Company may prepay the notes at any time without penalty.
On August 3, 2017, the Company entered into amendments with the owners and holders of the Series 2016 Convertible Notes to extend the maturity date for each of the notes to April 1, 2019 and revise the conversion price to mean $10.00 ($1.00 pre-reverse split) per share subject to proportional adjustment in the event of stock splits, stock dividends and similar corporate events.
On December 21, 2018, the Company entered into amendments with the owners and holders of the Series 2016 Convertible Notes to reduce the conversion price under such notes to $5.00 ($0.50 pre-reverse split) per share in exchange for the holders of such convertible notes agreement to convert the principal amount and accrued interest under such notes concurrently with the execution of the amendment. The Company issued 317,742 (3,177,411 pre-reverse split) shares of common stock to Frost Gamma in full settlement of the $1,500,000 principal balance and $88,705 accrued interest. The Company issued 300,000 (3,000,000 pre-reverse split) shares of common stock to Jay Nussbaum in full settlement of the $1,500,000 principal balance and settled $88,212 accrued interest in cash.
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Series 2017 Convertible Note
On August 3, 2017, the Company issued a Secured Convertible Promissory Note Series 2017 due August 2, 2018 in the aggregate principal amount of $2,000,000 (the “Series 2017 Convertible Note”) in a private placement to Frost Nevada Investments Trust (“Frost Nevada”). Frost Nevada is a trust that is controlled by Dr. Frost, a substantial shareholder of the Company. The note evidences a revolving line of credit with advances that may be requested by the Company until the maturity date of August 2, 2018 so long as no event of default exists under the loan. As of December 31, 2017, we have borrowed a total of $1,000,000 under the Series 2017 Secured Convertible Note leaving availability of $1,000,000 under such note. Accrued interest of $5,625 has been recognized as of December 31, 2017.
During 2018, the Company borrowed an additional $1,000,000 on the Series 2017 Convertible Note bringing the total amount of principal to $2,000,000. On December 21, 2018, the Company entered into an amendment with Frost Nevada to reduce the conversion price under such notes to $5.00 ($0.50 pre-reverse split) per share in exchange for Frost Nevada’s agreement to convert the principal amount and accrued interest under such notes concurrently with the execution of the amendment. The Company issued 403,074 (4,030,740 pre-reverse split) shares of common stock to Frost Nevada in full settlement of the $2,000,000 principal balance and $15,370 accrued interest.
Global Security Innovative Strategies, LLC
On November 10, 2017, the Company and Global Security Innovative Strategies, LLC (“GSIS”), a related party, entered in an agreement whereby GSIS will provide business development support and general consulting services for sales opportunities with U.S. government agencies and other identified prospects. The agreement is for a period of six months beginning on November 1, 2017. The Company agreed to pay GSIS a fee of $10,000 per month and will evaluate the fee after 90 days. On September 26, 2018, the parties amended the agreement to extend the period of service through September 2019 with monthly auto renew extensions thereafter. The Company also agreed to issue 10,000 (100,000 pre-reverse split) options to purchase Company stock which were immediately vested, had a strike price of $10.00 ($1.00 pre-reverse split) and terminate on September 26, 2022. The Company agreed to pay the expenses of GSIS incurred in connection with the performance of its duties under the agreement. Either party may terminate or renew the agreement at any time, for any reason or no reason, upon at least 30 days’ notice to the other party. David Aguilar, Chairman of the Company’s board of directors, is a principal at GSIS.
2018 Common Stock Issuance
On December 27, 2018, the Company completed the sale of 400,000 (4,000,000 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,000,000, of which 100,000 shares (1,000,000 pre-reverse split) shares were issued to Jay Nussbaum, the Company’s former Chief Executive Officer and Chairman of the Board of Directors, and 300,000 (3,000,000 pre-reverse split) shares were issued to Frost Gamma Investment Trust, of which Dr. Phillip Frost, a substantial shareholder of the Company, is the trustee.
2019 Common Stock Issuance
On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, which was repaid on February 8, 2019 including $575 in accrued interest, (3) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Dan Erdberg, the Company’s CEO and President, in the amount of $50,000 which was cancelled on April 30, 2019 pursuant to Stock Redemption and Note Cancellation Agreements, and (4) a full-recourse promissory note payable by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000. Each note bears an interest rate at a fixed rate of 3% per annum and principal and interest under the notes may be prepaid at any time without penalty. The non-affiliate note was fully repaid on February 8, 2019, including $575 in accrued interest. Each of the Erdberg and Carpenter notes has a maturity date of January 25, 2020. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019. On April 30, 2019, Kendall Carpenter repaid the remaining principal balance of the $17,500 note, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 10,000 (100,000 pre-reverse split) shares of common stock paid pursuant to the note described above and cancelled the $50,000 note and the related $267 in accrued interest.
2019 Common Stock Redemption
On September 4, 2019, the Company redeemed 10,000 (100,000 pre-reverse split) shares of its common stock, which are now Treasury Stock, pursuant to a Redemption Agreement at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $50,000 which were issued to Robert Guerra, the Company’s former director.
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Outsourced Technology Services
On March 21, 2019, concurrent with the resignation of Kevin Hess, the Company’s prior Chief Technology Officer, the Company and Cognitive Carbon Corporation (“CCC”), a related party, entered into an agreement pursuant to which CCC agreed to provide Chief Technology Officer services, sales and marketing services and outsourced software and platform development services to be provided personally by Kevin Hess or third-party development firms of his choosing for outsourced development. CCC will receive $19,750 per month for one year for the Chief Technology Officer services and potential bonuses and an amount up to $120,000 for outsourced software and platform development. Felicia Hess, the Company’s Chief Quality Officer, who is married to Kevin Hess, is the President and Director of CCC.
Director Independence
Under the rules of the OTCQB, we are not required to maintain a majority of independent directors on our Board of Directors and we are not required to establish committees of the Board of Directors consisting of independent directors. However, we intend to apply to list our common stock on the Nasdaq Capital Market (“NASDAQ”). In order to list our common stock on the NASDAQ, we are required to comply with the NASDAQ standards relating to corporate governance, requiring, among other things, that:
| ● | A majority of our Board of Directors to consist of “independent directors” as defined by the applicable rules and regulations of the NASDAQ; |
| ● | The compensation of our executive officers to be determined, or recommended to the Board of Directors for determination, by independent directors constituting a majority of the independent directors of the Board in a vote in which only independent directors participate or by a Compensation Committee comprised solely of independent directors; |
| ● | That director nominees to be selected, or recommended to the Board of Directors for selection, by independent directors constituting a majority of the independent directors of the Board in a vote in which only independent directors participate or by a nomination committee comprised solely of independent directors; and |
| ● | Establishment of an audit committee with at least three independent directors as well as composed entirely of independent directors, where at least one of the independent directors qualifies as an audit committee financial expert under SEC rules and as a financially sophisticated audit committee member under the applicable Exchange rules. |
Under applicable NASDAQ rules, a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries. Our Board of Directors has determined in its business judgment that General John Miller and Mr. Hoechst are independent within the meaning of the OTCQX Rules for U.S. Companies, NASDAQ rules for U.S. Companies, the Sarbanes-Oxley Act and related SEC rules. The Company has commenced a search for an additional director following Mr. Guerra’s resignation on September 4, 2019 and expects the replacement to be independent and to serve on the Audit, Compensation and Nominating and Corporate Governance Committees. Thereafter, a majority of the members of our Board of Directors will be independent.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the number of shares of and percent of the Company’s common stock beneficially owned as of October 11, 2019 (pre-reverse split and post-reverse split), by all directors, our named executive officers, our directors and executive officers as a group, and persons or groups known by us to own beneficially 5% or more of our common stock, immediately prior to this Offering, and immediately after the closing of this offering, as adjusted to reflect the assumed sale of 1,204,819 units (which includes 1,204,819 shares of our common stock and immediately exercisable warrants to purchase 1,204,819 shares of our common stock) in this Offering and the exercise of the underwriters’ over-allotment option in full to purchase additional 180,722 shares of common stock and warrants to purchase 180,722 shares of common stock, but assumes the warrants forming part of the units and over-allotment option are not exercised.
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The business address of each of the beneficial owners listed below is c/o Drone Aviation Holding Corp., 11651 Central Parkway, #118, Jacksonville, Florida 32224.
| Name of Beneficial Owner | Pre-Reverse Amount and |
Post-Reverse Amount and |
Pre-Closing
Percentage of Class (1) |
Post-Closing Amount and |
Post-Closing
Percentage of Class (1) |
|||||||||||||||
| 5% Shareholders | ||||||||||||||||||||
| Dr. Phillip Frost (2) | 13,672,318 | 1,367,232 | 46.3 | % | 1,367,232 | 31.5 | % | |||||||||||||
| Ira Entis, Trustee (3) | 10,946,433 | 1,094,644 | 33.4 | % | 1,094,644 | 23.5 | % | |||||||||||||
| Named Executive Officers and Directors | ||||||||||||||||||||
| Felicia Hess (4) | 3,739,833 | 373,984 | 12.4 | % | 373,984 | 8.5 | % | |||||||||||||
| Daniyel Erdberg (5) | 3,243,833 | 324,384 | 10.9 | % | 324,384 | 7.4 | % | |||||||||||||
| Timothy Hoechst (6) | 180,000 | 18,000 | * | % | 18,000 | * | % | |||||||||||||
| John E. Miller (7) | 125,000 | 12,500 | * | % | 12,500 | * | % | |||||||||||||
| David Aguilar (8) | 410,000 | 41,000 | 1.5 | % | 41,000 | * | % | |||||||||||||
| Executive Officers and Directors as a Group (6 persons) (9) | 8,874,999 | 887,500 | 26.10 | % | 887,500 | 18.5 | % | |||||||||||||
| * | less than 1%. |
| (1) | The pre-closing percentages in the table have been calculated on the basis of treating as outstanding for a particular person, all shares of our capital stock outstanding on October 11, 2019. The post-closing percentages in the table have been calculated on the basis of treating as outstanding for a particular person, all shares of our capital stock outstanding on October 11, 2019, plus the assumed sale of 1,204,819 units (which includes 1,204,819 shares of our common stock and immediately exercisable warrants to purchase 1,204,819 shares of our common stock) in this Offering and the exercise of the underwriters’ over-allotment option in full to purchase 180,722 shares of common stock and warrants to purchase 180,722 shares of common stock, but assumes the warrants forming part of the units and over-allotment option are not exercised. On October 11, 2019, there were 2,755,613 (27,556,121 pre-reverse split) shares of our common stock outstanding. To calculate a stockholder’s percentage of beneficial ownership, we include in the numerator and denominator the common stock outstanding and all shares of our common stock issuable to that person in the event of the exercise of outstanding options and other derivative securities owned by that person which are exercisable within 60 days of October 11, 2019. Common stock options and derivative securities held by other stockholders are disregarded in this calculation. Therefore, the denominator used in calculating beneficial ownership among our stockholders may differ. Unless we have indicated otherwise, each person named in the table has sole voting power and sole investment power for the shares listed opposite such person’s name. |
| (2) | Represents 1,167,232 (11,672,318 pre-reverse split) shares of common stock and 200,000 (2,000,000 pre-reverse split) shares underlying vested warrants with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2022. |
| (3) | Mr. Entis is the trustee of the revocable living trust of Jay Nussbaum, our former Chief Executive Officer and Chairman of the Board of our Company. Mr. Entis’ beneficial ownership includes the following securities, acquired as administrator of Mr. Nussbaum’s estate: 559,644 (5,596,433 pre-reverse split) shares of common stock, 200,000 (2,000,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2021, 90,000 (900,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on November 9, 2021 and 235,000 (2,350,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. Mr. Nussbaum’s beneficial ownership is still in probate pending completion. In addition, Mr. Entis owns 10,000 (100,000 pre-reverse split) shares of the common stock individually. |
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| (4) | Represents 123,984 (1,239,833 pre-reverse split) shares of common stock (of which (i) Mrs. Hess directly beneficially owns 118,984 (1,189,833 pre-reverse split) shares and (ii) Mrs. Hess may be deemed to indirectly beneficially own 5,000 (50,000 pre-reverse split) shares owned by Kevin Hess, her husband), 120,000 (1,200,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2021, 30,000 (300,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on November 9, 2021 and 100,000 (1,000,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. |
| (5) | Represents 90,384 (903,833 pre-reverse split) shares of common stock, 114,000 (1,140,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2021, 20,000 (200,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on November 9, 2021 and 100,000 (1,000,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. |
| (6) | Represents 5,500 (55,000 pre-reverse split) shares of common stock, 10,000 (100,000 pre-reverse split) shares underlying vested options with an exercise price of $10.00 ($1.00 pre-reverse split) which expire on December 13, 2021 and 2,500 (25,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. |
| (7) | Represents 10,000 (100,000 pre-reverse split) shares underlying vested options with an exercise price of $10.00 ($1.00 pre-reverse split) which expire on December 13, 2021 and 2,500 (25,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. |
| (8) | Represents 5,000 (50,000 pre-reverse split) shares of common stock, 10,000 (100,000 pre-reverse split) shares underlying vested options with an exercise price of $29.00 ($2.90 pre-reverse split) which expire on January 9, 2021, 10,000 (100,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2021, 1,000 (10,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on November 9, 2021 and 15,000 (150,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. |
| (9) | Includes Felicia Hess, Daniyel Erdberg, Timothy Hoechst, John Miller, David Aguilar, and Kendall Carpenter, our Chief Financial Officer. Kendall Carpenter beneficially owns 117,633 (1,176,333 pre-reverse split) shares, representing (i) 17,633 (176,333 pre-reverse split) shares of common stock and (ii) 27,500 (275,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on August 3, 2021, 17,000 (170,000 pre-reverse split) shares underlying vested options with an exercise price of $5.00 ($0.50 pre-reverse split) which expire on November 9, 2021, 13,000 (130,000 pre-reverse split) shares underlying vested options with an exercise price of $10.00 ($1.00 pre-reverse split) which expire on May 16, 2022, and 42,500 (425,000 pre-reverse split) shares underlying vested options with an exercise price of $6.50 ($0.65 pre-reverse split) which expire on September 26, 2022. The pre-closing and post-closing beneficial ownership percentages of Kendall Carpenter are 4.1% and 2.8%, respectively. |
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Securities Authorized for Issuance under Equity Compensation Plans
The following table provides information as of December 31, 2018, regarding our compensation plans under which equity securities are authorized for issuance:
| Plan category | Post-Reverse Split Number of |
Post-Reverse Split Weighted-average |
Post-Reverse Split Number of securities |
Pre-Reverse Split Number of |
Pre-Reverse Split Weighted-average |
Pre-Reverse
Split Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) |
||||||||||||||||||
| (a) | (b) | (c) | (a) | (b) | (c) | |||||||||||||||||||
| Equity compensation plans approved by security holders | 6,000 | $ | 29.10 | 230,407 | 60,000 | $ | 2.91 | 2,304,062 | ||||||||||||||||
| Equity compensation plans not approved by security holders | 1,614,000 | 6.00 | 0 | 16,140,000 | 0.60 | 0 | ||||||||||||||||||
| Total | 1,620,000 | $ | 6.10 | 230,407 | 16,200,000 | $ | 0.61 | 2,304,062 | ||||||||||||||||
Roth Capital Partners and Aegis Capital Corp. will be acting as the co-bookrunning managers for the offering. We have entered into an underwriting agreement dated _______________, 2019 with Roth Capital Partners and Aegis Capital Corp. as representatives of the underwriters (the “Representatives”). Subject to the terms and conditions of an underwriting agreement between us and the Representatives, we have agreed to sell to each underwriter named below, and each underwriter named below has severally agreed to purchase, at the public offering price less the underwriting discounts set forth on the cover page of this prospectus, the number of units listed next to its name in the following table:
| Name of Underwriter | Number of Units | |||
| Roth Capital Partners | ||||
| Aegis Capital Corp | ||||
| Total | ||||
The underwriters are committed to purchase all the units offered by this prospectus if they purchase any units. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may be increased, or the offering may be terminated. The underwriters are not obligated to purchase the units covered by the underwriters’ option to purchase additional shares of common stock and/or warrants to purchase additional shares of common stock described below. The underwriters are offering the units, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel, and other conditions contained in the underwriting agreement, such as the receipt by the underwriters of officer’s certificates and legal opinions. The underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.
Over-Allotment Option
We have granted to the underwriters an over-allotment option, exercisable for 45 days from the date of the underwriting agreement to purchase up to 180,722 shares of common stock and/or additional warrants to purchase up to 180,722 shares of common stock based on the assumed offering price (15% of the shares of common stock and warrants included in the units sold in this offering) at the public offering price per share and warrant, respectively, that appears on the cover page of this prospectus, less the underwriting discount. The over-allotment option may be used to purchase shares of common stock and/or warrants in any combination thereof, as determined by the underwriters. The underwriters may exercise this option, in whole or in part, solely for the purpose of covering over-allotments, if any, made in connection with the offering of the securities pursuant to this prospectus. To the extent the option is exercised and the conditions of the underwriting agreement are satisfied, we will be obligated to sell to the underwriters, and subject to the terms and conditions of the underwriting agreement the underwriters will be obligated to purchase, these additional shares of common stock and/or warrants.
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Discount and Commissions.
We have agreed to pay the underwriters a cash fee equal to eight percent (8%) of the aggregate gross proceeds.
The Representatives have advised us that the underwriters propose to offer the units directly to the public at the public offering price set forth on the cover of this prospectus. In addition, the Representatives may offer some of the units to other securities dealers at such price less a concession of up to $_________ per unit. After the offering to the public, the offering price and other selling terms may be changed by the Representatives without changing the Company’s proceeds from the underwriters’ purchase of the units.
The following table shows the public offering price, underwriting discount and proceeds, before expenses, to us. The information assumes either no exercise or full exercise by the underwriters of their over-allotment option. The underwriting commissions are equal to the public offering price per unit less the amount per unit the underwriters pay us for the units.
| Total | ||||||||||||
| Per Unit | Without Over- Allotment Option | With Over- Allotment Option | ||||||||||
| Public offering price | $ | $ | $ | |||||||||
| Underwriting discounts and commissions | $ | $ | $ | |||||||||
| Proceeds, before expenses, to us | $ | $ | $ | |||||||||
We estimate that the total expenses of the offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding underwriting discounts and commissions, will be approximately $459,284, all of which are payable by us. This figure includes expense reimbursements we have agreed to pay the Representatives for reimbursement of its expenses related to the offering up to a maximum aggregate expense allowance of $150,000, for which we have paid a $25,000 advance, which will be returned to us to the extent not offset by actual expenses.
Determination of Offering Price
Before this offering, there has been a very limited public market for our common stock and no public market for our warrants. Accordingly, the public offering price will be negotiated between us and the Representatives. Among the factors to be considered in the negotiations are:
| ● | the prospects for our company and the industry in which we operate; |
| ● | our past and present financial and operating information; |
| ● | our present operations, and the prospects for, and timing of, our future revenues; |
| ● | the present state of our development; |
| ● | Financial and operating information and market valuations of publicly traded companies engaged in activities similar to ours; and |
| ● | other factors deemed relevant. |
Lock-Up Agreements
We and each of our officers, directors, affiliates and certain existing stockholders aggregating at least 5% of our outstanding shares have agreed, subject to certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any shares of our common stock or other securities convertible into or exercisable or exchangeable for shares of our common stock for a period of six (6) months after this offering is completed without the prior written consent of the Representatives.
The Representatives may in their sole discretion and at any time without notice release some or all of the shares subject to lock-up agreements prior to the expiration of the lock-up period. When determining whether or not to release shares from the lock-up agreements, the representatives will consider, among other factors, the security holder’s reasons for requesting the release, the number of shares for which the release is being requested and market conditions at the time.
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Right of First Refusal
Following closing of the offering and the listing of our securities on the NASDAQ Capital Market, the Representatives shall have the right of first refusal for a period of twelve (12) months to act as the Company’s co-book running managers for any and all capital-raising transaction undertaken by the Company during such twelve (12) month period but in no case will the right of first refusal extend beyond the third anniversary of the commencement of sales of the offering.
Indemnification
We have agreed to indemnify the underwriters against specified liabilities, including liabilities under the Securities Act, and to contribute to payments the underwriters may be required to make in respect thereof.
Electronic Offer, Sale and Distribution of Shares.
A prospectus in electronic format may be made available on a website maintained by the Representatives and may also be made available on a website maintained by other underwriters. The underwriters may agree to allocate a number of units to underwriters for sale to their online brokerage account holders. Internet distributions will be allocated by the Representatives to underwriters that may make Internet distributions on the same basis as other allocations. In connection with the offering, the underwriters or syndicate members may distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses that are printable as Adobe® PDF will be used in connection with this offering.
The underwriters have informed us that they do not expect to confirm sales of units offered by this prospectus to accounts over which they exercise discretionary authority.
Other than the prospectus in electronic format, the information on any underwriter’s website and any information contained in any other website maintained by an underwriter is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or any underwriter in its capacity as underwriter and should not be relied upon by investors.
Price Stabilization, Short Positions, and Penalty Bids
In connection with this offering, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. Specifically, the underwriters may over-allot in connection with this offering by selling more securities than are set forth on the cover page of this prospectus. This creates a short position in our securities for its own account. The short position may be either a covered short position or a naked short position. In a covered short position, the number of securities over-allotted by the underwriters is not greater than the securities that they may purchase in the over-allotment option. In a naked short position, the number of securities involved is greater than the number of securities in the over-allotment option. To close out a short position, the underwriters may elect to exercise all or part of the over-allotment option. The underwriters may also elect to stabilize the price of our securities or reduce any short position by bidding for, and purchasing, securities in the open market.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter or dealer repays selling concessions allowed to it for distributing a security in this offering because the underwriter repurchases that security in stabilizing or short covering transactions.
Finally, the underwriters may bid for, and purchase, securities in market making transactions, including “passive” market making transactions as described below.
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These stabilizing transactions, covering transactions and penalty bids may have the effect of raising or maintaining the market price of our securities or preventing or retarding a decline in the market price of our securities. As a result, the price of our securities may be higher than the price that might otherwise exist in the open market.
Neither we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the prices of our securities. These transactions may occur on the over the counter market or on any other trading market. If any of these transactions are commenced, they may be discontinued without notice at any time.
Passive Market Making
In connection with this offering, underwriters and selling group members may engage in passive market making transactions in our securities on the NASDAQ Capital Market in accordance with Rule 103 of Regulation M under the Exchange Act, during a period before the commencement of offers or sales of the securities and extending through the completion of the distribution. A passive market maker must display its bid at a price not in excess of the highest independent bid of that security. However, if all independent bids are lowered below the passive market maker’s bid, then that bid must then be lowered when specified purchase limits are exceeded.
Certain Relationships
Certain of the underwriters and their affiliates may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates for which they may in the future receive customary fees, however, except for the right of first refusal disclosed in this prospectus, we have no present arrangements with any of the underwriters for any further services.
Offer Restrictions Outside the United States
Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
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Notice to prospective investors in the European Economic Area
In particular, this document does not constitute an approved prospectus in accordance with European Commission’s Regulation on Prospectuses no. 809/2004 and no such prospectus is to be prepared and approved in connection with this offering. Accordingly, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (being the Directive of the European Parliament and of the Council 2003/71/EC and including any relevant implementing measure in each Relevant Member State) (each, a Relevant Member State), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date) an offer of securities to the public may not be made in that Relevant Member State prior to the publication of a prospectus in relation to such securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of securities to the public in that Relevant Member State at any time:
| ● | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; |
| ● | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in the last annual or consolidated accounts; or |
| ● | in any other circumstances which do not require the publication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression an “offer of securities to the public” in relation to any of the securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State. For these purposes the securities offered hereby are “securities.”
Notice to prospective investors in the United Kingdom
This prospectus is not an approved prospectus for purposes of the UK Prospectus Rules, as implemented under the EU Prospectus Directive (2003/71/EC), and has not been approved under section 21 of the Financial Services and Markets Act 2000 (as amended) (the “FSMA”) by a person authorized under FSMA. The financial promotions contained in this prospectus are directed at, and this prospectus is only being distributed to, (1) persons who receive this prospectus outside of the United Kingdom, and (2) persons in the United Kingdom who fall within the exemptions under articles 19 (investment professionals) and 49(2)(a) to (d) (high net worth companies, unincorporated associations, etc.) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (all such persons together being referred to as “Relevant Persons”). This prospectus must not be acted upon or relied upon by any person who is not a Relevant Person. Any investment or investment activity to which this prospectus relates is available only to Relevant Persons and will be engaged in only with Relevant Persons. This prospectus and its contents are confidential and should not be distributed, published or reproduced (in whole or in part) or disclosed by recipients to any other person that is not a Relevant Person.
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The underwriter has represented, warranted and agreed that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA in connection with the issue or sale of any of the securities in circumstances in which section 21(1) of the FSMA does not apply to the issuer; and |
| (b) | it has complied with and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise involving the United Kingdom. |
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The following description of our capital stock is based upon our articles of incorporation, as amended, our bylaws and applicable provisions of law, in each case as currently in effect. This discussion does not purport to be complete and is qualified in its entirety by reference to our articles of incorporation, as amended, and our amended and restated bylaws, copies of which are filed with the SEC as exhibits to the registration statement of which this prospectus is a part.
Authorized Capital Stock
As of the date of this prospectus, our authorized capital stock consists of (i) 300,000,000 shares of common stock, par value $0.0001 per share, and (ii) 100,000,000 shares of preferred stock, par value $0.0001 per share. At October 11, 2019, we had 2,755,613 (27,556,121 pre-reverse split) shares of common stock issued and outstanding and no preferred stock issued and outstanding.
As of October 11, 2019, there were 128 holders of record of our common stock.
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Common Stock
Each share of common stock entitles the holder to one vote, either in person or by proxy, at meetings of shareholders. The holders are not permitted to vote their shares cumulatively. Accordingly, the shareholders of our common stock who hold, in the aggregate, more than fifty percent of the total voting rights can elect all of our directors and, in such event, the holders of the remaining minority shares will not be able to elect any of such directors. The vote of the holders of a majority of the issued and outstanding shares of common stock entitled to vote thereon is sufficient to authorize, affirm, ratify or consent to such act or action, except as otherwise provided by law.
Holders of common stock are entitled to receive ratably such dividends, if any, as may be declared by the Board of Directors out of funds legally available. We have not paid any dividends on common stock since our inception, and we presently anticipate that all earnings, if any, will be retained for development of our business. Any future disposition of dividends will be at the discretion of our Board of Directors and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements, and other factors. Holders of our common stock have no preemptive rights or other subscription rights, conversion rights, redemption or sinking fund provisions. Upon our liquidation, dissolution or winding up, the holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to shareholders after the payment of all of our debts and other liabilities. There are not any provisions in our Articles of Incorporation or our Bylaws that would prevent or delay change in our control.
Preferred Stock
The board of directors shall have the authority to authorize the issuance of the preferred stock from time to time in one or more classes or series, and to state in the resolution or resolutions from time to time adopted providing for the issuance thereof the following:
(a) Whether or not the class or series shall have voting rights, full or limited, the nature and qualifications, limitations and restrictions on those rights, or whether the class or series will be without voting rights;
(b) The number of shares to constitute the class or series and the designation thereof;
(c) The preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations, or restrictions thereof, if any, with respect to any class or series;
(d) Whether or not the shares of any class or series shall be redeemable and if redeemable, the redemption price or prices, and the time or times at which, and the terms and conditions upon which, such shares shall be redeemable and the manner of redemption;
(e) Whether or not the shares of a class or series shall be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement, and if such retirement or sinking funds be established, the amount and the terms and provisions thereof;
(f) The dividend rate, whether dividends are payable in cash, stock of the Company, or other property, the conditions upon which and the times when such dividends are payable, the preference to or the relation to the payment of dividends payable on any other class or classes or series of stock, whether or not such dividend shall be cumulative or noncumulative, and if cumulative, the date or dates from which such dividends shall accumulate;
(g) The preferences, if any, and the amounts thereof which the holders of any class or series thereof are entitled to receive upon the voluntary or involuntary dissolution of, or upon any distribution of assets of, the Company;
(h) Whether or not the shares of any class or series are convertible into, or exchangeable for, the shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Company, the conversion price or prices or ratio or ratios or the rate or rates at which such exchange may be made, with such adjustments, if any, as shall be stated and expressed or provided for in such resolution or resolutions; and
(i) Such other rights and provisions with respect to any class or series as may to the board of directors seem advisable.
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The shares of each class or series of the preferred stock may vary from the shares of any other class or series thereof in any respect. The Board of Directors may increase the number of shares of the preferred stock designated for any existing class or series by a resolution adding to such class or series authorized and unissued shares of the preferred stock not designated for any existing class or series of the preferred stock and the shares so subtracted shall become authorized, unissued and undesignated shares of the preferred stock.
Options to Purchase Common Stock
As of October 11, 2019, we had options to purchase 1,394,500 (13,945,000 post-reverse split) shares of our common stock at an average exercise price of $6.10 ($0.61 pre-reverse split) per share. The options expire during the period between 2019 to 2023.
Warrants to Purchase Common Stock
As of October 11, 2019, we had warrants to purchase 227,000 (2,270,000 pre-reverse split) shares of our common stock at an average exercise price of $6.70 ($0.67 pre-reverse split) per share. The warrants expire during the period from 2020 to 2023.
Description of Securities in this Offering
Units
Each unit consists of one share of common stock, par value $0.0001 per share, and one warrant to purchase one share of our common stock, each as described further below. No units will actually be issued in this offering and the common stock and warrants will be immediately separable and will be issued separately.
Warrants
In connection with the purchase of each unit, each investor will receive one share of common stock and one warrant. Accordingly, upon completion of this offering based on the assumed offering price we expect to have an additional 1,204,819 warrants outstanding (1,385,541 if the warrants reserved for the over-allotment are sold). Each warrant is exercisable for one share of common stock at an exercise price of 120% of the price of each unit sold in the offering and is exercisable for a period of five years from the initial exercise date.
The number of warrants outstanding, and the exercise price of those securities, will be adjusted proportionately in the event of a reverse or forward stock split of our common stock, a recapitalization or reclassification of our common stock, payment of dividends or distributions in common stock to our common stock holders, or similar transactions. In the event that the Company effects a rights offering to its common stock holders or a pro rata distribution of its assets among its common stock holders, then the holder of the warrants will have the right to participate in such distribution and rights offering to the extent of their pro rata share of the Company’s outstanding common stock assuming they owned the number of shares of common stock issuable upon the exercise of their warrants. In the event of a “Fundamental Transaction” by the Company, such as a merger or consolidation of it with another company, the sale or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions, a purchase offer, tender offer or exchange offer, or any reclassification, reorganization or recapitalization of the Company’s common stock, then the warrant holder will have the right to receive, for each share of common stock issuable upon the exercise of the warrant, at the option of the holder, the number of shares of common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration payable as a result of the Fundamental Transaction, that would have been issued or conveyed to the warrant holder had the holder exercised the warrant immediately preceding the closing of the Fundamental Transaction. In lieu of receiving such common stock and additional consideration in the Fundamental Transaction, the warrant holder may elect to have the Company or the successor entity purchase the warrant holder’s warrant for its fair market value.
The Company will promptly notify the warrant holders in writing of any adjustment to the exercise price or to the number of the outstanding warrants, declaration of a dividend or other distribution, a special non-recurring cash dividend on or a redemption of the common stock, the authorization of a rights offering, the approval of the stock holders required for any proposed reclassification of the common stock, a consolidation or merger by the Company, sale of all or substantially all of the assets of the Company, any compulsory share exchange, or the authorization of any voluntary or involuntary dissolution, liquidation, or winding up of the Company.
The warrants will be issued in registered form, in each case pursuant to a Warrant Agency Agreement between the transfer agent and registrar, as warrant agent, and us. You should review a copy of the Warrant Agency Agreement, which has been filed as an exhibit to the registration statement of which this prospectus is a part, for a complete description of the terms and conditions applicable to the warrants.
Anti-Takeover Effects of Certain Provisions of Our Articles of Incorporation, as Amended, and Our Bylaws
Provisions of our articles of incorporation, as amended, and our bylaws could make it more difficult to acquire us by means of a merger, tender offer, proxy contest, open market purchases, removal of incumbent directors and otherwise. These provisions, which are summarized below, are expected to discourage types of coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because negotiation of these proposals could result in an improvement of their terms.
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Calling of Special Meetings of Stockholders. Our bylaws provide that special meetings of the stockholders may be called only by the chief executive officer, if any, or the president or the board of directors.
Removal of Directors; Vacancies. Our bylaws provide that a director may be removed either for or without cause at any special meeting of stockholders by the affirmative vote of at least two-thirds of the voting power of the issued and outstanding stock entitled to vote; provided, however, that notice of intention to act upon such matter shall have been given in the notice calling such meeting.
Amendment of Bylaws. The bylaws provide that the bylaws may be altered, amended or repealed at any meeting of the Board of Directors at which a quorum is present, by the affirmative vote of a majority of the directors present at such meeting.
Preferred Stock. Our articles of incorporation, as amended, authorize the issuance of up to 100,000,000 shares of preferred stock with such rights and preferences as may be determined from time to time by our board of directors in their sole discretion. Our board of directors may, without stockholder approval, issue series of preferred stock with dividends, liquidation, conversion, voting or other rights that could adversely affect the voting power or other rights of the holders of our common stock.
Transfer Agent
The transfer agent and registrar for our common stock and the warrant agent for the warrants issued pursuant to this prospectus is ClearTrust, LLC.
ClearTrust, LLC’s address is 16540 Pointe Village Dr., Suite 210, Lutz, FL 33558 and its telephone number is (813) 235-4490.
The validity of the securities offered by this prospectus will be passed upon for us by Anthony L.G., PLLC, 625 N. Flagler Drive, Suite 600, West Palm Beach, FL 33401. Certain legal matters in connection with this offering will be passed upon for the underwriters by Ellenoff Grossman & Schole LLP, New York, New York.
Our consolidated balance sheets as of December 31, 2018 and 2017 and the related consolidated statements of operations, changes in stockholders’ equity (deficit) and cash flows for the years ended December 31, 2018 and 2017 included in this prospectus and registration statement have been audited by MaloneBailey, LLP, independent registered public accounting firm, as indicated in MaloneBailey, LLP’s report with respect thereto, and have been so included in reliance upon the report of such firm given on its authority as experts in accounting and auditing.
DISCLOSURE OF COMMISSION’S POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our directors and officers are indemnified as provided by Nevada law, our articles of incorporation, as amended, and our bylaws, as amended. We have agreed to indemnify each of our directors and certain officers against certain liabilities, including liabilities under the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by our director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC the registration statement on Form S-1 under the Securities Act for the securities offered by this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information in the registration statement and the exhibits filed with it, portions of which have been omitted as permitted by SEC rules and regulations. For further information concerning us and the securities offered by this prospectus, we refer to the registration statement and to the exhibits filed with it. Statements contained in this prospectus as to the content of any contract or other document referred to are not necessarily complete. In each instance, we refer you to the copy of the contracts and/or other documents filed as exhibits to the registration statement.
The registration statement on Form S-1, of which this prospectus forms a part, including exhibits, is available at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file with, or furnish to, the SEC at its public reference facilities:
| Public Reference Room Office | |
| 100 F Street, N.E. | |
| Room 1580 | |
| Washington, D.C. 20549 |
You may also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Callers in the United States can also call (202) 551-8090 for further information on the operations of the public reference facilities.
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F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and board of directors of
Drone Aviation Holding Corp.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Drone Aviation Holding Corp. and its subsidiaries (collectively, the “Company”) as of December 31, 2018 and 2017, and the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for the years then ended, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of their operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
| /s/ MaloneBailey, LLP | |
| www.malonebailey.com | |
| We have served as the Company’s auditor since 2013. | |
| Houston, Texas | |
| March 22, 2019 |
F-2
CONSOLIDATED BALANCE SHEETS
| 12/31/2018 | 12/31/2017 | |||||||
| ASSETS | ||||||||
| CURRENT ASSETS: | ||||||||
| Cash | $ | 2,282,365 | $ | 615,375 | ||||
| Accounts receivable - trade | 18,000 | 110,065 | ||||||
| Inventory, net | 307,925 | 991,697 | ||||||
| Prepaid expenses and deposits | 89,613 | 103,008 | ||||||
| Total current assets | 2,697,903 | 1,820,145 | ||||||
| PROPERTY AND EQUIPMENT, at cost: | 176,955 | 253,444 | ||||||
| Less - accumulated depreciation | (123,725 | ) | (97,507 | ) | ||||
| Net property and equipment | 53,230 | 155,937 | ||||||
| OTHER ASSETS: | ||||||||
| Goodwill | 99,799 | 99,799 | ||||||
| Intangible assets, net | 705,667 | 997,667 | ||||||
| Total other assets | 805,466 | 1,097,466 | ||||||
| TOTAL ASSETS | $ | 3,556,599 | $ | 3,073,548 | ||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | ||||||||
| CURRENT LIABILITIES: | ||||||||
| Accounts payable - trade and accrued liabilities | $ | 485,024 | $ | 205,359 | ||||
| Accounts payable due to related party | - | 171,981 | ||||||
| Bank Line of Credit | 2,000,000 | 1,000,000 | ||||||
| Related party convertible note payable | - | 1,000,000 | ||||||
| Total current liabilities | 2,485,024 | 2,377,340 | ||||||
| LONG TERM LIABILITIES: | ||||||||
| Related party convertible notes payable | - | 3,000,000 | ||||||
| TOTAL LIABILITIES | $ | 2,485,024 | $ | 5,377,340 | ||||
| COMMITMENTS AND CONTINGENCIES | - | - | ||||||
| STOCKHOLDERS’ EQUITY (DEFICIT): | ||||||||
| Common stock, $.0001 par value; authorized 300,000,000 shares; 23,640,621 and 9,182,470 shares issued and outstanding, at December 31, 2018 and December 31, 2017, respectively | 2,364 | 918 | ||||||
| Additional paid-in capital | 39,541,301 | 27,692,067 | ||||||
| Accumulated Deficit | (38,472,090 | ) | (29,996,777 | ) | ||||
| Total stockholders’ equity (deficit) | 1,071,575 | (2,303,792 | ) | |||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | $ | 3,556,599 | $ | 3,073,548 | ||||
The accompanying notes are an integral part of these consolidated financial statements.
F-3
CONSOLIDATED STATEMENTS OF OPERATIONS
| For the Years Ended December 31, | 2018 | 2017 | ||||||
| Revenues | $ | 2,722,713 | $ | 562,078 | ||||
| Cost of goods sold | 2,214,166 | 338,579 | ||||||
| Gross profit | 508,547 | 223,499 | ||||||
| General and administrative expense | 8,639,364 | 10,069,841 | ||||||
| Loss from operations | (8,130,817 | ) | (9,846,342 | ) | ||||
| Other income (expense) | ||||||||
| Loss on debt extinguishment | - | (681,988 | ) | |||||
| Derivative Gain | - | 1,831,635 | ||||||
| Interest expense | (344,496 | ) | (1,627,297 | ) | ||||
| Total other expense | (344,496 | ) | (477,650 | ) | ||||
| NET LOSS | (8,475,313 | ) | (10,323,992 | ) | ||||
| NET LOSS ATTRIBUTABLE TO COMMON STOCKHOLDERS | $ | (8,475,313 | ) | $ | (10,323,992 | ) | ||
| Weighted average number of common shares outstanding - basic and diluted | 9,547,077 | 8,956,365 | ||||||
| Basic and diluted net loss per share | $ | (0.89 | ) | $ | (1.15 | ) | ||
The accompanying notes are an integral part of these consolidated financial statements.
F-4
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)
For the Years Ended December 31, 2018 and 2017
| Common Stock | Preferred Stock Ser A | Additional Paid-in | Accumulated | |||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Capital | Deficit | Total | ||||||||||||||||||||||
| Balance - December 31, 2016 | 8,682,220 | $ | 868 | 101,100 | $ | 10 | $ | 21,089,301 | $ | (19,672,785 | ) | $ | 1,417,394 | |||||||||||||||
| Net Loss | (10,323,992 | ) | (10,323,992 | ) | ||||||||||||||||||||||||
| Stock Based Comp. - Employee Shares - Vesting for PY share issuance | 1,071,323 | 1,071,323 | ||||||||||||||||||||||||||
| Stock Based Compensation - Non-employee Shares | 250,000 | 25 | 195,720 | 195,745 | ||||||||||||||||||||||||
| Stock Based Compensation - Options and Warrants | 6,824,334 | 6,824,334 | ||||||||||||||||||||||||||
| Conversion of Series A preferred stock to common stock | 250,250 | 25 | (101,100 | ) | (10 | ) | (15 | ) | - | |||||||||||||||||||
| Stock Based Compensation - reverse amortization, vesting deemed improbable | (1,488,596 | ) | (1,488,596 | ) | ||||||||||||||||||||||||
| Balance - December 31, 2017 | 9,182,470 | $ | 918 | - | $ | - | $ | 27,692,067 | $ | (29,996,777 | ) | $ | (2,303,792 | ) | ||||||||||||||
| Net Loss | (8,475,313 | ) | (8,475,313 | ) | ||||||||||||||||||||||||
| Stock Based Comp. - Employee Shares - Vesting for PY share issuance | 944,300 | 944,300 | ||||||||||||||||||||||||||
| Conversion of 2016 related party convertible notes and accrued interest | 6,177,411 | 618 | 3,088,087 | 3,088,705 | ||||||||||||||||||||||||
| Conversion of 2017 related party convertible note and accrued interest | 4,030,740 | 403 | 2,014,967 | 2,015,370 | ||||||||||||||||||||||||
| Stock Based Compensation - Non-employee Shares | 250,000 | 25 | 43,308 | 43,333 | ||||||||||||||||||||||||
| Stock Based Compensation - Options and Warrants | 3,758,972 | 3,758,972 | ||||||||||||||||||||||||||
| Common stock issued for cash | 4,000,000 | 400 | 1,999,600 | 2,000,000 | ||||||||||||||||||||||||
| Balance - December 31, 2018 | 23,640,621 | $ | 2,364 | - | $ | - | $ | 39,541,301 | $ | (38,472,090 | ) | $ | 1,071,575 | |||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-5
CONSOLIDATED STATEMENTS OF CASH FLOWS
| 2018 | 2017 | |||||||
| OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | (8,475,313 | ) | $ | (10,323,992 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Amortization expense of debt discount | - | 1,409,790 | ||||||
| Gain on derivative liability | - | (1,831,635 | ) | |||||
| Loss on debt extinguishment | - | 681,988 | ||||||
| Depreciation | 37,984 | 36,723 | ||||||
| Loss on inventory obsolescence | 565,406 | 6,366 | ||||||
| Loss on disposal of property and equipment | 10,002 | - | ||||||
| Amortization expense of intangible assets | 292,000 | 292,000 | ||||||
| Stock based compensation | 4,746,605 | 6,602,806 | ||||||
| Changes in current assets and liabilities: | ||||||||
| Accounts receivable | 92,065 | 283,935 | ||||||
| Inventory | 118,366 | (538,178 | ) | |||||
| Prepaid expenses and other current assets | 13,395 | 17,606 | ||||||
| Accounts payable and accrued expense | 279,665 | (88,563 | ) | |||||
| Due from related party | (67,906 | ) | 125,132 | |||||
| Net cash used in operating activities | (2,387,731 | ) | (3,326,022 | ) | ||||
| INVESTING ACTIVITIES: | ||||||||
| Cash received from sale of fixed assets | 60,000 | - | ||||||
| Cash paid on fixed assets | (5,279 | ) | (73,817 | ) | ||||
| Net cash provided by (used in) investing activities | 54,721 | (73,817 | ) | |||||
| FINANCING ACTIVITIES: | ||||||||
| Proceeds from related party convertible note payable | 1,000,000 | 1,000,000 | ||||||
| Proceeds from bank line of credit | 1,000,000 | 1,000,000 | ||||||
| Proceeds from related party promissory note | 100,000 | - | ||||||
| Repayment of related party promissory note | (100,000 | ) | - | |||||
| Proceeds from sale of common stock | 2,000,000 | - | ||||||
| Net cash provided by financing activities | 4,000,000 | 2,000,000 | ||||||
| NET INCREASE (DECREASE) IN CASH | 1,666,990 | (1,399,839 | ) | |||||
| CASH, beginning of period | 615,375 | 2,015,214 | ||||||
| CASH, end of period | $ | 2,282,365 | $ | 615,375 | ||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid during the year ended December 31: | ||||||||
| Interest | $ | 407,096 | $ | 86,750 | ||||
| Noncash investing and financing activities for the year ended December 31: | ||||||||
| Conversion of 2016 related party convertible notes payable | $ | 3,088,705 | $ | - | ||||
| Conversion of 2017 related party convertible note payable | $ | 2,015,370 | $ | - | ||||
| Conversion of Series A preferred stock to common stock | $ | - | $ | 25 | ||||
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Notes to Consolidated Financial Statements
For the Years ended December 31, 2018 and 2017
| 1. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Description of Business:
Drone Aviation Holding Corp. (“Drone”, “we”, “our”, or “Company”) develops and manufactures cost-effective, compact and rapidly deployable aerial platforms including lighter-than-air aerostats, tethered drones and land-based intelligence, surveillance and reconnaissance (“ISR”) solutions designed to provide government and commercial customers with enhanced surveillance and communication capabilities. Utilizing a proprietary tether system, the Company’s products are designed to provide prolonged operational duration capabilities combined with improved reliability, uniquely fulfilling critical requirements in military, law enforcement and commercial and industrial applications.
Basis of Presentation:
The accompanying financial statements of the Company were prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).
Principle of Consolidation:
Our consolidated financial statements as of December 31, 2018 and 2017 include the accounts of Drone Aviation Holding Corp. and its subsidiaries: Drone AFS Corp. and Lighter Than Air Systems Corp (“LTAS”).
Use of Estimates:
The preparation of 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, disclosure of contingent assets and liabilities, and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Concentration of Credit Risk:
Financial instruments which potentially subject the Company to concentrations of credit risk consist of cash and trade receivables. The Company places its cash with high credit quality financial institutions. At times such cash may be in excess of the FDIC limit of $250,000 per depositor. With respect to trade receivables, the Company routinely assesses the financial strength of its customers and, as a consequence, believes that the receivable credit risk exposure is limited.
Cash Equivalents:
Cash equivalents are represented by operating accounts or money market accounts maintained with insured financial institutions, including all highly-liquid investments with maturities of three months or less when purchased to be cash equivalents. The Company had no cash equivalents as of December 31, 2018 and 2017.
Accounts Receivable and Credit Policies:
Accounts receivable-trade consists of amounts due from the sale of tethered aerostats, accessories, spare parts customization and refurbishment of aerostats. Such accounts receivable are uncollateralized customer obligations due under normal trade terms requiring payment within 30 to 45 days of receipt of the invoice. The Company provides an allowance for doubtful accounts equal to the estimated uncollectible amounts based on historical collection experience and a review of the current status of trade accounts receivable. At December 31, 2018 and 2017, the Company characterized $0 and $0 as uncollectible, respectively.
F-7
Inventories
Inventories are stated at the lower of cost or net realizable value, using the first-in first-out method. Cost includes materials, labor and manufacturing overhead related to the purchase and production of inventories. We regularly review inventory quantities on hand, future purchase commitments with our supplies, and the estimated utility of our inventory. If the review indicates a reduction in utility below carrying value, we reduce our inventory to a new cost basis through a charge to cost of goods sold.
Property and Equipment:
Property and equipment is recorded at cost when acquired. Depreciation is provided principally on the straight-line method over the estimated useful lives of the related assets, which is 3-7 years for equipment, furniture and fixtures, hardware and software. Property and equipment consists of the following at December 31, 2018 and 2017:
| 2018 | 2017 | |||||||
| Shop Machinery and equipment | $ | 87,534 | $ | 87,704 | ||||
| Computers and electronics | 32,093 | 35,270 | ||||||
| Office furniture and fixtures | 37,814 | 37,814 | ||||||
| Vehicle | - | 73,142 | ||||||
| Leasehold improvements | 19,514 | 19,514 | ||||||
| 176,955 | 253,444 | |||||||
| Less - accumulated depreciation | (123,725 | ) | (97,507 | ) | ||||
| $ | 53,230 | $ | 155,937 | |||||
Expenditures for maintenance and repairs are charged to expense as incurred, whereas expenditures for major renewals and betterments that extend the useful lives of property and equipment are capitalized.
During the year ended December 31, 2018, the Company invested $5,279 in shop machinery and equipment and computers. During the same period, the Company sold a vehicle for $60,000 and wrote off several items of abandoned equipment resulting in a $10,002 loss on disposal of assets. During the year ended December 31, 2017, the Company purchased a vehicle for $73,142 and shop equipment for $675.
The Company recognized $37,984 and $36,723 of depreciation expense for the year ended December 31, 2018 and 2017, respectively.
Long-Lived Assets & Goodwill:
The Company accounts for long-lived assets in accordance with the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 360-10-35, “Impairment or Disposal of Long-lived Assets.” This accounting standard requires that long-lived assets be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future undiscounted net cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset.
The Company accounts for goodwill and intangible assets in accordance with ASC 350 “Intangibles Goodwill and Other”. ASC 350 requires that goodwill and other intangibles with indefinite lives be tested for impairment annually or on an interim basis if events or circumstances indicate that the fair value of an asset has decreased below its carrying value. The Company performed impairment analysis using the qualitative analysis under ASC 350-20 and noted no impairment issues for 2018 and 2017.
F-8
Derivative Financial Instruments:
The Company evaluates the embedded conversion feature within its convertible debt instruments under ASC 815-15 and ASC 815-40 to determine if the conversion feature meets the definition of a liability and, if so, whether to bifurcate the conversion feature and account for it as a separate derivative liability. For derivative financial instruments that are accounted for as liabilities, the derivative instrument is initially recorded at its fair value and is then re-valued at each reporting date, with changes in the fair value reported in the statements of operations. For stock-based derivative financial instruments, the Company uses a lattice model, in accordance with ASC 815-15 “Derivative and Hedging” to value the derivative instruments at inception and on subsequent valuation dates. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is evaluated at the end of each reporting period. Derivative instrument liabilities are classified in the balance sheet as current or non-current based on whether net-cash settlement of the derivative instrument could be required within 12 months after the balance sheet date.
Beneficial Conversion Features:
The Company evaluates the conversion feature for whether it was beneficial as described in ASC 470-30. The intrinsic value of a beneficial conversion feature inherent to a convertible note payable, which is not bifurcated and accounted for separately from the convertible note payable and may not be settled in cash upon conversion, is treated as a discount to the convertible note payable. This discount is amortized over the period from the date of issuance to the date the note is due using the effective interest method. If the note payable is retired prior to the end of its contractual term, the unamortized discount is expensed in the period of retirement to interest expense. In general, the beneficial conversion feature is measured by comparing the effective conversion price, after considering the relative fair value of detachable instruments included in the financing transaction, if any, to the fair value of the shares of common stock at the commitment date to be received upon conversion.
Fair Value of Financial Instruments:
The Company measures its financial assets and liabilities in accordance with the requirements of FASB ASC 820, “Fair Value Measurements and Disclosures”. As defined in FASB ASC 820, the fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The Company utilized the market data of similar entities in its industry or assumptions that market participants would use in pricing the asset or liability, including assumptions about risk and the risks inherent in the inputs to the valuation technique. These inputs can be readily observable, market corroborated, or generally unobservable. The Company classifies fair value balances based on the observability of those inputs. FASB ASC 820 established a fair value hierarchy that prioritizes the inputs used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurement) and the lowest priority to unobservable inputs (level 3 measurement) as follows:
Level 1 – Quoted prices are available in active markets for identical assets or liabilities as of the reporting date. Active markets are those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis. Level 1 primarily consists of financial instruments such as exchange-traded derivatives, marketable securities and listed equities.
Level 2 – Pricing inputs are other than quoted prices in active markets included in level 1, which are either directly or indirectly observable as of the reported date and includes those financial instruments that are valued using models or other valuation methodologies. These models are primarily industry-standard models that consider various assumptions, including quoted forward prices for commodities, time value, volatility factors, and current market and contractual prices for the underlying instruments, as well as other relevant economic measures. Substantially all of these assumptions are observable in the marketplace throughout the full term of the instrument, can be derived from observable data or are supported by observable levels at which transactions are executed in the marketplace. Instruments in this category generally include non-exchange-traded derivatives such as commodity swaps, interest rate swaps, options and collars.
Level 3 – Pricing inputs include significant inputs that are generally less observable from objective sources. These inputs may be used with internally developed methodologies that result in management’s best estimate of fair value.
F-9
Revenue Recognition and Unearned Revenue:
In May 2014, the FASB issued Accounting Standards Update No. 2014-09 (Topic 606) “Revenue from Contracts with Customers.” Topic 606 supersedes the revenue recognition requirements in Topic 605 “Revenue Recognition” (Topic 605). The new standard’s core principal is that an entity will recognize revenue at an amount that reflects the consideration to which the entity expects to be entitled in exchange for transferring good or services to a customer. The principals in the standard are applied in five steps: 1) Identify the contract(s) 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 (or as) the entity satisfies a performance obligation. We adopted Topic 606 as of January 1, 2018 using the modified retrospective transition method. We recognized the cumulative effect of adopting this guidance as an adjustment to our opening balance of retained earnings. Prior periods will not be retrospectively adjusted. The adoption of Topic 606 does not have a material impact to our consolidated financial statements, including the presentation of revenues in our Consolidated Statements of Operations, which were not broken down by revenue stream or geographic areas since the Company only sells within the United States and has only one revenue stream.
Income Taxes:
The Company accounts for income taxes utilizing ASC 740, “Income Taxes” (“ASC 740”). ASC 740 requires the measurement of deferred tax assets for deductible temporary differences and operating loss carry forwards, and of deferred tax liabilities for taxable temporary differences. Measurement of current and deferred tax liabilities and assets is based on provisions of enacted tax law. The effects of future changes in tax laws or rates are not included in the measurement. The Company recognizes the amount of taxes payable or refundable for the current year and recognizes deferred tax liabilities and assets for the expected future tax consequences of events and transactions that have been recognized in the Company’s financial statements or tax returns. The Company has recorded a 100% valuation allowance against net deferred tax assets due to uncertainty of their ultimate realization. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized.
The Company also follows the guidance for accounting for income tax uncertainties. In accounting for uncertainty in income taxes, the Company recognizes the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more likely than not threshold, the amount recognized in the consolidated financial statements is the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement with the relevant tax authority. No liability for unrecognized tax benefits was recorded as of December 31, 2018 and 2017.
Employee Stock-Based Compensation:
The Company accounts for stock-based compensation in accordance with ASC 718, “Compensation-Stock Compensation”. ASC 718 requires companies to measure the cost of employee services received in exchange for an award of equity instruments, including stock options, based on the grant-date fair value of the award and to recognize it as compensation expense over the period the employee is required to provide service in exchange for the award, usually the vesting period. The Company has elected to adopt ASU 2016-09 and has a policy to account for forfeitures as they occur.
Non-Employee Stock-Based Compensation:
The Company accounts for stock-based compensation in accordance with the provision of ASC 505-50, “Equity Based Payments to Non-Employees,” which requires that such equity instruments are recorded at their fair value on the measurement date.
Related Parties:
The Company accounts for related party transactions in accordance with ASC 850 (“Related Party Disclosures”). A party is considered to be related to the Company if the party directly or indirectly or through one or more intermediaries, controls, is controlled by, or is under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. A party which can significantly influence the management or operating policies of the transacting parties or if it has an ownership interest in one of the transacting parties and can significantly influence the other to an extent that one or more of the transacting parties might be prevented from fully pursuing its own separate interests is also a related party.
F-10
On October 25, 2018 the Company borrowed $100,000 from its Chief Executive Officer and Chairman, Jay Nussbaum pursuant to a promissory note. The note bears interest at the rate of 6% per annum and is due on November 30, 2018. The Company used the proceeds from this loan to fund our immediate short-term cash needs pending settlement of the customer invoice for the WASP shipped October 9, 2018. The note was repaid in full on November 9, 2018, including $723 in interest.
On November 10, 2017, the Company and Global Security Innovative Strategies, LLC (“GSIS”), a related party, entered in an agreement whereby GSIS will provide business development support and general consulting services for sales opportunities with U.S. government agencies and other identified prospects and consulting support services for the Company’s role and activities as part of the Security Center of Excellence in Orlando, Florida. The agreement was for a period of six months beginning on November 1, 2017. On September 26, 2018, the parties amended the agreement to extend the period of service through September 2019 with monthly auto renew extensions thereafter. The Company also agreed to issue 100,000 options to purchase Company stock which were immediately vested, had a strike price of $1.00 and terminate on September 26, 2022. The Company pays GSIS a fee of $10,000 per month. The Company agreed to pay the expenses of GSIS incurred in connection with the performance of its duties under the agreement. Either party may terminate or renew the agreement at any time, for any reason or no reason, upon at least 30 days’ notice to the other party. David Aguilar, a member of the Company’s board of directors, is a principal at GSIS.
As of December 31, 2018, and 2017, there was $0 and $171,981 accrued interest payable, respectively, to related parties on convertible notes payable. See Footnote 6 – Related Party Convertible Notes Payable and Derivative Liability and Footnote 8 – Series 2017 Secured Convertible Note – Related Party for further information.
Earnings or Loss per Share:
The Company accounts for earnings per share pursuant to ASC 260, Earnings per Share, which requires disclosure on the financial statements of “basic” and “diluted” earnings (loss) per share. Basic earnings (loss) per share are computed by dividing net income (loss) by the weighted average number of common shares outstanding for the year. Diluted earnings (loss) per share is computed by dividing net income (loss) by the weighted average number of common shares outstanding plus common stock equivalents (if dilutive) related to stock options and warrants for each year. As further described in Footnote #6 – Related Party Convertible Notes Payable and Derivative Liability, $3,000,000 in convertible debt could be converted into 3,000,000 shares of common stock as of December 31, 2017 and was converted in December 2018 leaving a zero balance owed. As further described in Footnote #8 – Series 2017 Secured Convertible Note – Related Party, $1,000,000 in convertible debt could be converted into 1,000,000 shares of common stock as of December 31, 2017. The debt increased to $2,000,000 during 2018 and was converted in December 2018 leaving a zero balance owed. As further described in Footnote #11 – Employee Stock Options, 13,610,000 options and 7,627,500 options are exercisable as of December 31, 2018 and 2017, respectively. As further described in Footnote #12 – Warrants, 2,280,000 warrants and 2,232,500 warrants are exercisable as of December 31, 2018 and 2017, respectively. As there was a net loss for the years ended December 31, 2018 and 2017, basic and diluted losses per share in each such year are the same.
Recent Accounting Pronouncements
In February 2016, the FASB issued ASU 2016-02, Leases, which will amend current lease accounting to require lessees to recognize (i) a lease liability, which is a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis, and (ii) a right-of-use asset, which is an asset that represents the lessee’s right to use, or control the use of, a specified asset for the least term. ASU 2016-02 does not significantly change lease accounting requirements applicable to lessors; however, certain changes were made to align, where necessary, lessor accounting with the lessee accounting model. This standard will be effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company is currently reviewing the provisions of this ASU to determine if there will be any impact on our results of operations cash flows or financial condition.
F-11
Other than those pronouncements, management does not believe that there are any other recently issued, but not effective, accounting standards which, if currently adopted, would have a material effect on the Company’s financial statements.
| 2. | MANAGEMENT’S LIQUIDITY PLANS |
On August 27, 2014, FASB issued ASU 2014-05, Disclosure of Uncertainties about an Entity’s ability to Continue as a Going Concern, which requires management to assess a company’s ability to continue as a going concern within one year from financial statement issuance and to provide related footnote disclosures in certain circumstances.
The accompanying consolidated financial statements and notes have been prepared assuming the Company will continue as a going concern. For the year ended December 31, 2018, the Company incurred a net loss of $8,475,313, generated negative cash flow from operations, has an accumulated deficit of $38,472,090 and working capital of $212,879.
For the year ended December 31, 2017, the Company disclosed that its ability to continue as a going concern was predicated on the Company’s ability to create and market innovative products, raise capital, reduce debt or renegotiate terms, and to sustain adequate working capital to finance its operations. During 2018, the Company met or exceeded those predications. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.8 million which was received in December 2018 and expected to be delivered by the end of 2019. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity leaving only $2,000,000 in bank debt on the books. As of March 1, 2019, the Company has approximately $1,500,000 in positive working capital, an improvement of more than $2,000,000 over the negative working capital balance at the end of 2017.
The focus on opportunities for aerostats, the settlement of debt obligations, the funds generated from stock sales and other initiatives contributing to additional working capital should avoid any substantial doubt about the Company’s ability to continue as a going concern as defined by ASU 2014-05. We believe that the actions discussed above mitigate the substantial doubt raised by our recent operating losses and satisfy our estimated liquidity needs twelve months from the issuance of the financial statements. However, we cannot predict, with certainty, the outcome of our actions to generate liquidity and the failure to do so could negatively impact our future operations.
| 3. | INVENTORIES |
Inventories consisted of the following, including $565,406 and $6,366 inventory obsolescence write offs for the years ended December 31, 2018 and 2017, respectively:
| 2018 | 2017 | |||||||
| Raw Materials | $ | 136,555 | $ | 114,119 | ||||
| Work in progress | 180,041 | 482,770 | ||||||
| Finished Goods | 523,698 | 398,912 | ||||||
| In Transit | - | 5,468 | ||||||
| Less valuation allowance | (532,369 | ) | (9,572 | ) | ||||
| Total | $ | 307,925 | $ | 991,697 | ||||
| 4. | PREPAID EXPENSES |
Prepaid expenses consisted of the following:
| 2018 | 2017 | |||||||
| Prepaid insurance | $ | 28,828 | $ | 30,847 | ||||
| Prepaid products and services | 54,870 | 66,246 | ||||||
| Prepaid rent and security deposit | 5,915 | 5,915 | ||||||
| $ | 89,613 | $ | 103,008 | |||||
F-12
| 5. | INTANGIBLE ASSETS |
On July 20, 2015, the Company, through its wholly-owned subsidiary Drone AFS Corp., purchased substantially all the assets of Adaptive Flight, Inc. (“AFI”), a Georgia corporation. The Company purchased assets, including, but not limited to, intellectual property, licenses and permits, including commercial software licenses for the “GUST” (Georgia Tech UAV Simulation Tool) autopilot system and other transferable licenses which include flight simulation and fault tolerant flight control algorithms. The Company paid $100,000 in immediately available funds and $100,000 to be held in escrow. In addition, the Company issued 150,000 shares of unregistered common stock valued at $8.40 per share, on a post-October 29, 2015 reverse stock split basis, on the date of agreement, to be held in escrow.
The Company had a milestone of twelve months to complete a technology integration plan, the non-completion of which could result in the return of the purchased assets and termination of the Company’s obligations to release the escrow cash and shares. Additional milestones included exclusive, no-cost and perpetual licenses to all contributing intellectual property included or related to the purchased assets. As such time as all milestones were met, one-half of the escrow shares were to be released to AFI. Upon termination of the escrow agreement, anticipated to be twelve months from the closing of the asset purchase, if all milestones had been met, the remaining escrow shares would be released to AFI; but if all milestones have not been met, the escrow cash and escrow shares would be released to the Company and the purchased assets would be returned to AFI. According to the terms of the Escrow Agreement, if the escrow share value was less than $1,400,000, the Company must issue an additional number of unregistered shares, not to exceed 50,000 shares. At December 31, 2015, the value of the 150,000 shares was $3.23 per share, or $484,500. The Company recorded $161,500 as an additional liability and expense at December 31, 2015 for the cost of 50,000 shares at $3.23 per share. On June 3, 2016, the Integration Plan was deemed to be completed. At June 3, 2016, the value of the 150,000 shares was $3.01 per share, or $451,150. The additional liability was reduced to $150,500 for the cost of 50,000 shares at $3.01 per share. The Company recorded the $11,000 reduction in the additional liability through the statement of operations at June 3, 2016. The Company began amortizing the $1,460,000 of purchased assets over a sixty-month period on June 3, 2016 in the amount of $24,333 per month. Total amortization expense for the years ended December 31, 2018 and 2017 was $292,000 and $292,000, respectively. The remaining unamortized balance of $705,667 is estimated be amortized in the estimated amounts of $292,000 per year for 2019 through 2020 and $121,667 in 2021.
The asset acquisition did not qualify as a business combination under ASC 805-10 and has been accounted for as a regular asset purchase.
| 6. | RELATED PARTY CONVERTIBLE NOTES PAYABLE AND DERIVATIVE LIABILITY |
On September 29, 2016, the Company issued Convertible Promissory Notes Series 2016 due October 1, 2017 in the aggregate principal amount of $3,000,000 in a private placement to the Chairman of the Board and the Chairman of the Strategic Advisory Board of the Company, both of whom are greater than 10% shareholders of the Company. The notes bear interest at a rate of six percent (6%) per annum. The Company may prepay the notes at any time without penalty. If the Company does not prepay a note in full or the holder does not convert the note before the maturity date, the Company may pay the outstanding principal amount and any accrued and unpaid interest on the maturity date with cash or with common stock or through a combination of cash and stock at the Company’s discretion. The conversion price of the notes is the lesser of $3.00 per share or eight-five percent (85%) of the lowest per share purchase price of common stock in the next sale of common stock in which the Company receives gross proceeds of an amount greater than or equal to $3,000,000.
F-13
On August 3, 2017 (the “Effective Date”), the Company entered into amendments (the “Convertible Note Amendments”) with the owners and holders of the following convertible promissory notes issued by the Company (the “Series 2016 Convertible Notes”):
| ● | Convertible Promissory Note in the original principal amount of $1,500,000 issued by the Company on September 29, 2016 to Frost Gamma Investments Trust (“Frost Gamma”). Frost Gamma is a trust that is controlled by Dr. Phillip Frost, a substantial shareholder of the Company; and |
| ● | Convertible Promissory Note in the original principal amount of $1,500,000 issued by the Company on September 29, 2016 to Jay H. Nussbaum, the Company’s Chief Executive Officer and Chairman of the Board of Directors. |
The Convertible Note Amendments extend the maturity date for each of the Series 2016 Convertible Notes to April 1, 2019 (the “Maturity Date”) and revise the conversion price to mean $1.00 per share subject to proportional adjustment in the event of stock splits, stock dividends and similar corporate events. Accordingly, the notes have been reclassified as long-term debt. Consistent with the original terms of the Series 2016 Convertible Notes, interest accrues at the rate of 6% interest per annum and is payable on the Maturity Date. The accrued interest is payable at the holders’ option in cash or shares of our common stock valued at the $1.00 per share conversion price. The Convertible Note Amendments provide that an event of default in the City National Bank Loan will be treated as an event of default under the Series 2016 Convertible Notes.
On November 9, 2017, the Company entered into amendments (the “November 2017 Convertible Note Amendments”) with the owners and holders of the Series 2016 Convertible Notes to permit the payment of, at the holders’ election, accrued and unpaid interest either in monthly or quarterly payments at any time after the Effective Date. Both the principal amount and accrued interest may be paid with: (i) cash; (ii) the issuance and delivery to the holder of shares of common stock of the Company at the conversion price provided for in the Series 2016 Convertible Note; or (iii) any combination of cash and shares of common stock, as determined by the holder in its sole discretion.
The Company evaluated the modification under ASC 470-50 and determined that it qualified as an extinguishment of debt. The aggregate loss on extinguishment of debt in 2017 is $681,988, including ($378) on derivative liabilities, and $682,366 on unamortized debt discount. The embedded conversion feature of the note’s pre-modification required liability classification.
On December 21, 2018, the Company entered into amendments (the “December 2018 Convertible Note Amendments”) with the owners and holders of the Series 2016 Convertible Notes to reduce the conversion price under such notes to $0.50 per share in exchange for the holders of such convertible notes agreement to convert the principal amount and accrued interest under such notes concurrently with the execution of the amendment. The Company evaluated the modification of the conversion price under ASC 470-50 and determined that it qualified as an extinguishment of debt. The gain or loss on extinguishment is calculated using the fair value of stock issued, minus the principal and accrued interest of the convertible notes. Since the result was a gain and the debt was associated with related parties, the gain was recorded as Paid in Capital. The Company issued 3,177,411 shares of common stock to Frost Gamma in full settlement of the $1,500,000 principal balance and $88,705 accrued interest. The Company issued 3,000,000 shares of common stock to Jay Nussbaum in full settlement of the $1,500,000 principal balance and settled $88,212 accrued interest in cash.
The Company analyzed the conversion option in the notes for derivative accounting treatment under ASC Topic 815, “Derivatives and Hedging,” and determined that the instrument does not qualify for derivative accounting.
The Company therefore performed an analysis to determine if the conversion option was subject to a beneficial conversion feature and determined that the instrument does not have a beneficial conversion feature.
The following table sets forth, by level within the fair value hierarchy, the Company’s financial liabilities that were accounted for at fair value as of December 31, 2018 and December 31, 2017:
| Level 1 | Level 2 | Level 3 | Total | |||||||||||||
| LIABILITIES: | ||||||||||||||||
| Derivative liabilities as of December 31, 2018 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||
| Derivative liabilities as of December 31, 2017 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||
F-14
The following table represents the change in the fair value of the derivative liabilities during the years ended December 31, 2018 and 2017:
| Fair value of derivative liabilities as of December 31, 2016 | $ | 1,832,013 | ||
| Change in fair value of derivative liabilities | (1,831,635 | ) | ||
| Gain on extinguishment of debt | (378 | ) | ||
| Fair value of derivative liabilities as of December 31, 2017 | $ | 0 | ||
| Change in fair value of derivative liabilities | (0 | ) | ||
| Fair value of derivative liabilities as of December 31, 2018 | $ | 0 |
The amortization of the debt discount is $0 and $1,409,790 for the years ended December 31, 2018 and 2017, respectively.
| 7. | REVOLVING LINE OF CREDIT |
On August 2, 2017, the Company issued a promissory note to City National Bank of Florida (“CNB”) in the principal amount of $2,000,000, the CNB Note, with a maturity date of August 2, 2018 On September 26, 2018, the Company and CNB agreed to extend the maturity date of the promissory note to August 2, 2019. The Company evaluated the modification under ASC 470-50 and determined that it did not qualify as an extinguishment of debt. The note evidences a revolving line of credit with advances that may be requested by the Company until the maturity date of August 2, 2019 so long as no event of default exists under the note, the Company or Mr. Nussbaum does not cease doing business, Mr. Nussbaum does not seek to revoke or modify his guarantee of the Note, the Company does not misapply the proceeds of this loan or CNB in good faith does not believe itself insecure. The initial CNB Note bore an interest rate at a variable rate equal to 0.250 percentage points over the Wall Street Journal Prime Rate payable monthly. At renewal, the variable rate was increased to 1.0 percentage points over the Wall Street Journal Prime Rate. The Company will pay to CNB a late charge of 5.0% of any monthly payment not received by Lender within 10 calendar days after its due date. The Company may prepay the note at any time without penalty. In the event of a default, the interest rate will increase to the highest lawful rate. The Company is obligated to maintain depository accounts with CNB with a minimum average annual balance of $1,600,000 in aggregate with Mr. Nussbaum. In the event the Company does not maintain this account balance, CNB may charge the Company a fee equal to 2% of the deficiency as additional interest under the note. The CNB Note is personally guaranteed by Mr. Nussbaum, the Company’s Chief Executive Officer pursuant to written guarantee in favor of CNB (the “CNB Guarantee”). Mr. Nussbaum and the Company are obligated to maintain an aggregate unencumbered liquidity of no less than $6,000,000 in the form of cash, repurchase agreements, certificates of deposit or marketable securities acceptable to CNB. In addition, to secure our obligations under the note, we entered into a security agreement in favor of CNB (the “Security Agreement”) encumbering all of our accounts, inventory and equipment along with an assignment of a bank account we maintain at CNB with an approximate balance of $120,000. As of December 31, 2018, $2,000,000 has been drawn against the line of credit, an increase of $1,000,000 over the balance at December 31, 2017. Accrued interest of $10,931 and $5,625 has been recognized as of December 31, 2018 and 2017, respectively.
Indemnification Agreement
On August 3, 2017, the Company entered into an Indemnification Agreement with Mr. Nussbaum in order to indemnify and defend him to the fullest extent permitted by law for any claim, expense or obligation which might arise as a result of his guarantee of the CNB Note.
| 8. | SERIES 2017 SECURED CONVERTIBLE NOTE – RELATED PARTY |
On August 3, 2017, the Company issued a Secured Convertible Promissory Note Series 2017 due August 2, 2018 in the aggregate principal amount of $2,000,000 (the “Series 2017 Convertible Note”) in a private placement to Frost Nevada Investments Trust (“Frost Nevada”). On September 26, 2018, the Company and Frost Nevada agreed to extend the maturity date of the promissory note to August 2, 2019. The Company evaluated the modification under ASC 470-50 and determined that it did not qualify as an extinguishment of debt. Frost Nevada is a trust that is controlled by Dr. Frost, a substantial shareholder of the Company. The note evidences a revolving line of credit with advances that may be requested by the Company until the maturity date of August 2, 2019 so long as no event of default exists under the loan. The Company may request advances of principal under this note equal to and at the same time as it requests advances, if any, pursuant to the CNB Note. The note bears interest at a variable rate equal to 0.250 percentage points over the Wall Street Journal Prime Rate. The Company may prepay the notes at any time without penalty. If the Company does not prepay the note in full or the holder does not convert the note before the maturity date, the Company may pay the outstanding principal amount and any accrued and unpaid interest on the maturity date with cash or with common stock or through a combination of cash and stock at Frost Nevada’s discretion. The conversion price under the note is $1.00 per share subject to proportional adjustment in the event of stock splits, stock dividends and similar corporate events. The Series 2017 Convertible Note is secured by a security interest in all the Company’s assets. This security interest is subordinate to the security interest of CNB discussed in Footnote #7 above.
F-15
During 2018, the Company borrowed an additional $1,000,000 on the Series 2017 Convertible Note bringing the total amount of principal to $2,000,000. On December 21, 2018, the Company entered into an amendment (the “December 2018 Convertible Note Amendments”) with Frost Nevada to reduce the conversion price under such notes to $0.50 per share in exchange for Frost Nevada’s agreement to convert the principal amount and accrued interest under such notes concurrently with the execution of the amendment. The Company evaluated the modification of the conversion price under ASC 470-50 and determined that it qualified as an extinguishment of debt. The gain or loss on extinguishment is calculated using the fair value of stock issued, minus the principal and accrued interest of the convertible notes. Since the result was a gain and the debt was associated with related parties, the gain was recorded as Paid in Capital. The Company issued 4,030,740 shares of common stock to Frost Nevada in full settlement of the $2,000,000 principal balance and $15,370 accrued interest.
The Company analyzed the conversion option in the notes for derivative accounting treatment under ASC Topic 815, “Derivatives and Hedging,” and determined that the instrument does not qualify for derivative accounting.
The Company therefore performed an analysis to determine if the conversion option was subject to a beneficial conversion feature and determined that the instrument does not have a beneficial conversion feature.
| 9. | SHAREHOLDERS’ EQUITY |
For the year ended December 31, 2018
The Company issued a total of 14,458,151 shares of common stock during the year ended December 31, 2018, as described below:
On October 25, 2018, the Board approved Amendment No. 3 to the August 27, 2014 Independent Contractor Agreements it entered into with Dr. Philip Frost and Steven Rubin who serve as members of the Company’s Strategic Advisory Board (the “SAB Amendments”). The SAB Amendments extend the term of the agreements from November 1, 2018 until October 31, 2019 and provide for the following equity-based compensation: (a) for Dr. Frost, an award of 150,000 shares of the Company’s unregistered restricted common stock and (b) for Mr. Rubin, an award of 100,000 shares of the Company’s unregistered restricted common stock. The restricted stock vests upon the occurrence of a change of control (as defined in the SAB Amendments). The Company recognized $20,833 expense for the pro rata portion of shares earned by the two members during the twelve months ended December 31, 2018, amortizing the expense over the 12 months of the service agreement regardless of the vesting condition.
On October 24, 2018, the Company commenced an offering of up to 10,000,000 shares of its common stock (the “Offered Shares”) in a private placement of up to $5,500,000 to certain accredited investors at a purchase price of $0.55 per share pursuant to a Stock Purchase Agreement (the “SPA”). Closing of the offering pursuant to the SPA is conditioned upon certain, limited customary representations and warranties, as well as the Company having received an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after October 9, 2018 (the “Qualifying Sales Order”). As required under the SPA, upon receipt by the Company of a Qualifying Sales Order, the Company will give written notice to the investors notifying them that the Company intends to close on the purchase of the Offered Shares pursuant to the SPA. Within three days after the delivery of the notice to the investors, the Company and the investors will then close under the SPA and at closing, the Company will issue to each purchasing investor the number of shares subscribed for by each Investor.
F-16
On December 21, 2018, the Board approved an Amended and Restated Stock Purchase Agreement (the “Amended SPA”) relating to the Offered Shares to reduce the purchase price in the Offering to $0.50 per share, reduce the maximum offering amount from $5,500,000 to $5,000,000, extend the initial closing date of the Offering to January 15, 2019 and permit sales of the common stock for a period of 30 days after the initial closing in order to attract a greater number of investors. In addition, the Amended and Restated Stock Purchase Agreement revised the definition of the event triggering the initial closing date to the date when the Company enters into an agreement with a prime government contractor at any time commencing after October 8, 2018 whereby the Company agrees to provide a minimum of $4,000,000 in goods and services to such contractor.
On December 21, 2018, the Company issued 6,177,411 shares of its common stock pursuant to the conversion of the 2016 Related Party Notes as discussed above in Footnote #6 and 4,030,740 shares of its common stock pursuant to the conversion of the 2017 Related Party Note as discussed above in Footnote #8.
On December 27, 2018, the Company completed the sale of 4,000,000 shares of its common stock pursuant to the Amended SPA at $0.50 per share for an aggregate of $2,000,000. On January 25, 2019, the Company completed an additional closing as further discussed below in Footnote #16 – Subsequent Events.
In September 2016, the Company issued 1,349,000 shares of restricted common stock outside of the 2015 Equity Plan to Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, Mike Silverman and Reginald Brown pursuant to Stock Award Agreements. The shares will vest upon consummation of a significant equity and/or debt financing of at least $5,000,000 provided that the holder remains engaged by the Company through the vesting date. On August 3, 2017, these awards were modified so that the restrictions set forth in the RSA lapse upon the earlier of (i) consummation of a significant equity and/or debt financing from which the Company receives gross proceeds of at least $7,000,000 or (ii) a change in control (as defined in the RSA Amendment), provided that, in either case, the holder remains engaged by the Company through the date of such event. The Company does not believe the modified vesting conditions are probable of being achieved, and as such, no stock-based compensation expense has been recorded. The Company will reassess whether achievement of the vesting conditions is probable at each reporting date. If it is probable, stock-based compensation will be recognized.
On March 28, 2018, these awards were modified in recognition of the Company securing a substantial sales order and recent business development activity and vested on that date. On that date, the awards were determined to be probable for vesting and stock-based compensation was recognized based on the fair market value of the stock on March 28, 2018. The Company recorded $944,300 in stock-based compensation for these awards during the year ended December 31, 2018.
As of December 31, 2018, the Company had unamortized stock compensation of $104,167 for non-employees.
For the year ended December 31, 2017
The Company issued a total of 500,250 shares of common stock during the year ended December 31, 2017, as described below:
On April 24, 2017, the holder of Series A preferred stock converted a total of 100,100 shares of Series A for an aggregate of 250,250 shares of restricted common stock in accordance with their conversion rights which includes a blocker with respect to individual ownership percentages.
On August 3, 2017, the Company entered into an amendment to the August 24, 2014 Independent Contractor Agreements it entered into with Dr. Philip Frost and Steven Rubin who serve as members of the Company’s Strategic Advisory Board (the “SAB Amendments”). The SAB Amendments extend the term of the agreements from May 1, 2017 until April 30, 2018 and provide for the following equity based compensation: (a) for Dr. Frost, a warrant to purchase 2,000,000 shares of the Company’s common stock (the “Frost Warrant”) and an award of 150,000 shares of the Company’s unregistered restricted common stock and (b) for Mr. Rubin, an award of 100,000 shares of the Company’s unregistered restricted common stock. The restricted stock vests upon the occurrence of a change of control (as defined in the SAB Amendments). The Warrant has a term of five years and exercise price of $1.00 per share subject to proportional adjustment in the event of stock splits, stock dividends and similar corporate events. The Company recognized $22,500 and $155,001 expense for the pro rata portion of shares earned by the two members during the twelve months ended December 31, 2018 and 2017, respectively, amortizing the expense over the 12 months of the service agreement regardless of the vesting condition.
F-17
| 10. | PREFERRED STOCK |
For the year ended December 31, 2018
On August 28, 2018, the Company filed with the Nevada Secretary of State of a Certificate of Withdrawal to withdraw the Certificates of Designations of the Company’s previously designated Convertible Preferred Stock, Series A, B, B-1, C, D, E, F, G as no shares of these series of preferred stock are issued or outstanding.
For the year ended December 31, 2017
All the preferred stock of the Company is convertible into common shares. The Series A stock conversion ratio is 1 to 2.5 common shares. All preferred stock has voting rights equal to the number of shares it would have on an ‘as if converted’ basis subject to any ownership limitations governing such preferred shares. All preferred stock is entitled to dividends rights equal to the number of shares it would have on an ‘as if converted’ basis. None of the preferred stock is redeemable, participating nor callable.
The Company analyzed the embedded conversion option for derivative accounting consideration under ASC 815-15 “Derivatives and Hedging” and determined that the conversion option should be classified as equity.
On April 24, 2017, the holder of Series A preferred stock converted a total of 100,100 shares of Series A for an aggregate of 250,250 shares of restricted common stock in accordance with their conversion rights which includes a blocker with respect to individual ownership percentages.
| 11. | EMPLOYEE STOCK OPTIONS |
For the year ended December 31, 2018
On March 28, 2018, upon approval of the Company’s board of directors, the Company granted outside its 2015 Equity Plan, 100,000 options each to a newly-appointed director, Robert Guerra. These options vest 50% one year after the date of grant and the remaining 50% two years after the date of grant provided the director is still actively involved with the Company. The options are exercisable at an exercise price of $1.00 per share and expire on March 28, 2022. During the year ended December 31, 2018, $21,739 compensation expense was recognized on these 100,000 options with a remaining balance of $16,654 to be recognized over the vesting period.
On May 16, 2018, upon approval of the Company’s board of directors, the Company granted outside its 2015 Equity Plan, 460,000 options to four employees. Reginald Brown, Jr. was issued 200,000 options and Kendall Carpenter was issued 130,000 options which were immediately vested, are exercisable at an exercise price of $1.00 per share and expire May 16, 2022. Two engineers received a total of 130,000 shares which vest 50% after one year and the remaining 50% after two years, are exercisable at an exercise price of $1.00 per share and expire May 16, 2022. During the year ended December 31, 2018, $174,639 compensation expense was recognized on these 460,000 options with a remaining balance of $27,352 to be recognized over the vesting period.
On August 22, 2018, upon approval of the Company’s board of directors, the Company granted outside its 2015 Equity Plan, an aggregate of 5,000,000 options to five management employees and four directors. Included in this award were the following grants to Executive Officers and Directors of the Company: 1,950,000 options to Jay Nussbaum, Chief Executive Officer and Chairman of the Board of Directors, 800,000 options to Felicia Hess, Chief Operating Officer, 800,000 options to Daniyel Erdberg, President, 300,000 options to Kendall Carpenter, Chief Financial Officer and the following directors of the Company: 150,000 options to David Aguilar, 25,000 options to John Miller, 25,000 options to Timothy Hoechst and 25,000 options to Robert Guerra. The options vest upon the Company receiving an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after the date of issuance. The options are exercisable at an exercise price of $1.00 per share and expire August 22, 2022. On September 26, 2018, the Board resolved to cancel the Options to purchase 5,000,000 shares of common stock issued on August 22, 2018 that had not vested.
F-18
On September 26, 2018, upon approval of the Company’s board of directors, the Company granted outside its 2015 Equity Plan, 6,000,000 options to five management employees and four directors. Jay Nussbaum was issued 2,350,000 options, Felicia Hess was issued 1,000,000 options, Daniyel Erdberg was issued 1,000,000 options, Kendall Carpenter was issued 425,000 options, Reginald Brown, Jr. was issued 1,000,000 options. Director David Aguilar was issued 150,000 options and Directors John Miller, Timothy Hoechst and Robert Guerra were each issued 25,000 options. The options vest upon the Company receiving an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after the date of issuance. The options are exercisable at an exercise price of $.65 per share and expire September 26, 2022. Of these 6,000,000 options, 5,000,000 options have been accounted for as a modification of the August 22, 2018 options. During the year ended December 31, 2018, $2,601,005 compensation expense was recognized on these 6,000,000 options which vested December 21, 2018 when the Company entered into an agreement with a prime government contractor to provide a minimum of $4,000,000 in goods and services to such contractor.
For the year ended December 31, 2017
On January 9, 2017, the Company issued an option to purchase 100,000 shares of common stock with an exercise price of $2.90 per share to a director. The option vests 50,000 after one year from grant date and another 50,000 two years from grant date with an expiration date of four years from grant date provided that the Director is still providing service to the Company. During the twelve months ended December 31, 2018 and 2017, $45,516 and $129,059, accordingly, compensation expense was recognized on these 100,000 options.
On August 3, 2017, upon approval of the Company’s board of directors, the Company issued outside its 2015 Equity Plan, 5,210,000 options to purchase the Company’s common stock to officers, directors and employees for services provided. These stock options immediately vested, are exercisable at an exercise price of $1.00 per share and expire on August 3, 2021. Jay Nussbaum was issued 2,000,000 options, Felicia Hess was issued 1,200,000 options, Dan Erdberg was issued 1,140,000 options, Kendall Carpenter was issued 275,000 options, Directors David Aguilar, Mike Haas and General Wayne Jackson were issued 100,000, 10,000 and 10,000 options, respectively. The remaining 475,000 options were issued to employees and consultants and during 2018, 80,000 of those options were cancelled due to termination of certain employees. On December 21, 2018, the Board modified the exercise price of the remaining 5,130,000 options to $0.50 per share. During the twelve months ended December 31, 2018 and 2017, 421,059 and $3,354,097 compensation expense, accordingly, was recognized on these August 3, 2017 options.
On November 9, 2017, upon approval of the Company’s board of directors, the Company issued outside its 2015 Equity Plan, 2,000,000 options to purchase the Company’s common stock to officers, directors, and for services provided. Jay Nussbaum was issued 900,000 options, Felicia Hess was issued 300,000 options, Dan Erdberg was issued 200,000 options, Kendall Carpenter was issued 170,000 options, Directors David Aguilar, Mike Haas and General Wayne Jackson were issued 10,000, 10,000 and 10,000 options, respectively. Reginald Brown, Jr. was issued 400,000 options. These stock options immediately vested, are exercisable at an exercise price of $1.35 per share and expire on November 9, 2021. On December 21, 2018, the Board modified the exercise price of the 2,000,000 options to $0.50 per share. During the twelve months ended December 31, 2018 and 2017, $223,559 and $1,846,075 compensation expense was recognized on these November 9, 2017 options.
On December 13, 2017, upon approval of the Company’s board of directors the Company issued outside its 2015 Equity Plan, 100,000 options each to two newly-appointed directors, or a total of 200,000 options. These options vest 50% after one year and the remaining 50% after two years provided the director is still actively involved with the Company. The options are exercisable at an exercise price of $1.00 per share and expire on December 13, 2021. During the twelve months ended December 31, 2018 and 2017, $70,361 and $3,593 compensation expense was recognized on these 200,000 options with a remaining balance of $25,547 to be recognized over the vesting period.
During 2016, the Company granted 10,000 options to an employee with two-year vesting and an exercise price of $3.00 and an expiration date of December 6, 2019. The Company recognized $1,187 in compensation for the year ended December 31, 2018. No additional compensation will be recognized on these options which were cancelled due to the termination of the employee.
F-19
On June 1, 2015, the Company issued an option award to an employee for 37,500 shares vesting over three years with an exercise price of $10.80 and expiration date of May 4, 2019. During the year ended December 31, 2018, $14,367 compensation expense was recognized on these 37,500 options which have been cancelled due to the termination of the employee.
The Company used the Black-Scholes option pricing model to estimate the fair value on the date of grant of the 11,560,000 options granted during the twelve months ended December 31, 2018.
The following table summarizes the assumptions used to estimate the fair value of stock options granted during 2018 and 2017, as of the remeasurement date of December 21, 2018:
| 2018 | 2017 | |||||||
| Expected dividend yield | 0 | % | 0 | % | ||||
| Expected volatility | 80-96 | % | 82-101 | % | ||||
| Risk-free interest rate | 2.41-2.93 | % | 1.50-2.62 | % | ||||
| Expected life of options | 4.0 years | 2.5-4.0 years | ||||||
Under the Black-Scholes option pricing model, the fair value of the 11,560,000 options granted during the twelve months ended December 31, 2018 is estimated at $2,841,390 on the date of grant. During the twelve months ended December 31, 2018, $2,797,383 compensation expense was recognized on these 11,560,000 options with a total of $44,006 to be recognized over the vesting periods.
During 2018, 250,000 options issued on May 18, 2015 with an exercise price of $6.00 expired and 85,000 options issued December 10, 2015 with an exercise price of $5.00 expired. The Company cancelled 180,000 options that had been issued to five employees who left the Company without exercising their options, including 37,500 issued June 1, 2015 with a strike price of $10.80, 12,500 issued December 10, 2015 with a strike price of $5.00, 40,000 issued April 27, 2016 with a strike price of $2.91, 10,000 issued December 6, 2016 with a strike price of $3.00, and cancelled 80,000 options issued August 8, 2017 with a strike price of $1.00. The Company cancelled 5,000,000 options issued on August 22, 2018 on September 26, 2018 that had not vested.
The following table represents stock option activity as of and for the period ended December 31, 2018:
| Number of Options | Weighted Average Exercise Price per Share |
Weighted Average Contractual Life in Years |
Aggregate Intrinsic Value |
|||||||||||||
| Outstanding – December 31, 2016 | 442,500 | $ | 5.81 | 1.72 | ||||||||||||
| Exercisable – December 31, 2016 | 407,500 | $ | 5.57 | 1.65 | $ | 0 | ||||||||||
| Granted | 7,510,000 | $ | 1.12 | |||||||||||||
| Cancelled or Expired | (7,500 | ) | $ | 4.18 | ||||||||||||
| Outstanding – December 31, 2017 | 7,945,000 | $ | 1.38 | 3.50 | ||||||||||||
| Exercisable – December 31, 2017 | 7,627,500 | $ | 1.35 | 3.50 | $ | 0 | ||||||||||
| Granted | 11,560,000 | $ | 0.82 | |||||||||||||
| Cancelled or Expired | (5,515,000 | ) | $ | 1.37 | ||||||||||||
| Outstanding – December 31, 2018 | 13,990,000 | $ | 0.61 | 3.15 | $ | |||||||||||
| Exercisable – December 31, 2018 | 13,610,000 | $ | 0.59 | 3.16 | $ | 0 | ||||||||||
F-20
| 12. | WARRANTS |
For the year ended December 31, 2018
As described above in Footnote #1 – Related Party Transactions, on September 26, 2018, the Company issued 100,000 warrants outside its 2015 Equity Plan to Global Security Innovative Strategies, LLC (“GSIS”) with an exercise price of $1.00 per share and an expiration date of September 26, 2022 and which were immediately vested.
The following table summarizes the assumptions used to estimate the fair value of the 100,000 stock warrants granted during the year ended December 31, 2018 on the date of grant.
| 2018 | ||||
| Expected dividend yield | 0 | % | ||
| Expected volatility | 91 | % | ||
| Risk-free interest rate | 2.93 | % | ||
| Expected life of options | 4.00 years | |||
Under the Black-Scholes option pricing model, the fair value of the 100,000 warrants granted during the year ended December 31, 2018 is estimated at $37,467 on the date of grant. During the year ended December 31, 2018, $37,467 compensation expense was recognized on these 100,000 warrants.
For the year ended December 31, 2017
On August 3, 2017, upon approval of the Company’s board of directors, the Company issued outside its 2015 Equity Plan, 30,000 warrants to purchase the Company’s common stock to consultants for services provided. These warrants are immediately vested, are exercisable at an exercise price of $1.00 per share and expire on August 3, 2021. On December 21, 2018, the Board modified the exercise price of the 30,000 warrants to $0.50 per share. During the twelve months ended December 31, 2018 and 2017, $2,462 and $19,269 compensation expense, respectively, was recognized on these August 3, 2017 options.
On August 3, 2017, the Company issued a warrant to purchase 2,000,000 shares of the Company’s common stock to Dr. Philip Frost for services to be provided under the terms of his service to the Strategic Advisory Board through April 2018. These warrants immediately vested, are exercisable at an exercise price of $1.00 per shares and expire on August 3, 2022. On December 21, 2018, the Board modified the exercise price of the 2,000,000 warrant to $0.50 per share. During the twelve months ended December 31, 2018 and 2017, $143,375 and $1,391,793 compensation expense, respectively, was recognized on these August 3, 2017 warrants.
On November 9, 2017, upon approval of the Company’s board of directors, the Company issued outside its 2015 Equity Plan, 20,000 warrants to purchase the Company’s common stock to consultants for services provided. These warrants are immediately vested, are exercisable at an exercise price of $1.35 per share and expire on November 9, 2021. On December 21, 2018, the Board modified the exercise price of the 20,000 warrants to $0.50 per share. During the twelve months ended December 31, 2018 and 2017, $2,236 and $18,456 compensation expense, accordingly, was recognized on these November 9, 2017 warrants.
The following table summarizes the assumptions used to estimate the fair value of the 2,050,000 warrants granted during 2017, as of the remeasurement date of December 21, 2018:
| 2017 | ||||
| Expected dividend yield | 0 | % | ||
| Expected volatility | 80 | % | ||
| Risk-free interest rate | 2.62 | % | ||
| Expected life of warrants | 4-5 years | |||
F-21
The following table represents warrant activity as of and for the period ended December 31, 2018 and 2017:
| Number of Warrants | Weighted Average Exercise Price |
Weighted Average Remaining Contractual Life in Years | Aggregate Intrinsic Value |
|||||||||||||
| Outstanding – December 31, 2016 | 183,737 | $ | 7.35 | 2.70 | ||||||||||||
| Exercisable – December 31, 2016 | 171,237 | $ | 7.15 | 2.79 | $ | 0.00 | ||||||||||
| Granted | 2,050,000 | $ | 1.00 | |||||||||||||
| Forfeited or Expired | (1,237 | ) | $ | 303,37 | ||||||||||||
| Outstanding – December 31, 2017 | 2,232,500 | $ | 1.36 | 4.34 | ||||||||||||
| Exercisable – December 31, 2017 | 2,232,500 | $ | 1.36 | 4.34 | $ | 0.00 | ||||||||||
| Granted | 100,000 | $ | 1.00 | |||||||||||||
| Forfeited or Expired | (52,500 | ) | $ | 8.57 | ||||||||||||
| Outstanding – December 31, 2018 | 2,280,000 | $ | 0.72 | 3.44 | ||||||||||||
| Exercisable – December 31, 2018 | 2,280,000 | $ | 0.72 | 3.44 | $ | 0.00 | ||||||||||
| 13. | INCOME TAXES |
The Company uses the liability method, where deferred tax assets and liabilities are determined based on the expected future tax consequences of temporary differences between the carrying amounts of assets and liabilities for financial and income tax reporting purposes. On December 22, 2017, H.R. 1, formally known as the Tax Cut and Jobs Act (the “Act”) was enacted into law. The Act provides for significant tax law changes and modifications with varying effective dates. The major change that affects the Company is reducing the corporate income tax rate from 35% to 21%.
The net deferred asset generated by the loss carry-forward has been fully reserved. The cumulative net operating loss carry-forward is approximately $14,137,574 for 2018 and $10,718,755 for 2017 and will begin expiring in 2034. Section 382 of the Internal Revenue Code generally imposes an annual limitation on the amount of net operating loss carryforwards that may be used to offset taxable income when a corporation has undergone significant changes in its stock ownership. The $14,137,574 estimate of net operating loss carry-forward is calculated after we consider the effect of Section 382.
Deferred tax assets consist of the tax effect of net operating loss carry-forwards. The Company has provided a full valuation allowance on the deferred tax assets because of the uncertainty regarding its realizability. Deferred tax assets consist of the following:
| December 31, 2018 | December 31, 2017 | |||||||
| Net operating loss carry-forwards | $ | 2,968,891 | $ | 2,250,939 | ||||
| Valuation allowance | (2,968,891 | ) | (2,250,939 | ) | ||||
| $ | 0 | $ | 0 | |||||
The Company’s tax expense does not reflect the statutory rate since the Company’s deferred tax asset is fully offset by a valuation allowance. The statute of limitations is open for the tax years ending December 31, 2015 and thereafter.
F-22
| 14. | COMMITMENTS AND CONTINGENCIES |
On November 17, 2014, the Company entered into a 60-month lease for 5,533 square feet of office and manufacturing space at 11651 Central Parkway Suite 118, Jacksonville, Florida, with an anticipated lease commencement date of February 1, 2015. The actual commencement date was July 1, 2015 and the lease was amended to 61 months expiring July 31, 2020. The monthly rent, including operating expenses and sales tax, for each year of the initial lease term is estimated to be $5,915. Anticipated total rent during the term of the lease is as follows:
| Year 2019 - $ 77,309 |
| Year 2020 - $ 45,651 |
Rent expense in 2018 and 2017 was $161,333, and $131,710, respectively.
The Company acquired licenses to certain technology of Georgia Tech Research Corporation (GTRC) through its purchase of Adaptive Flight, Inc.’s assets on July 20, 2015 and through direct license from GTRC. The licenses are perpetual and if the technology is patented, are protected through the expiration date of the patented know-how. Two of the licenses require a minimum royalty of $1,500 per year. Royalties are based on vehicle weight and range from $12.50 to $75.00 per vehicle on one license and $25.00 to $150.00 per vehicle on another license.
On May 16, 2016, Banco Popular North America (“Banco”) filed a lawsuit in Duval County, Florida in the Circuit Court of the Fourth Judicial Circuit against Aerial Products Corporation d/b/a Southern Balloon Works (“Aerial Products”), Kevin M. Hess, LTAS, and the Company to collect on a delinquent Small Business Administration loan that Banco made in 2007 to Aerial Products with Mr. Hess as the personal guarantor. LTAS and the Company filed an Answer on June 30, 2016 and Responses to Interrogatories on December 16, 2016. The lawsuit is active and discovery is ongoing. It is our position that neither LTAS nor the Company are continuations of Aerial Products, and LTAS and the Company have denied all allegations made by Banco and will vigorously defend that position. The Company has evaluated the probability of loss as possible, but the range of loss is unable to be estimated.
Other than the Banco matter, there are no material claims, actions, suits, proceedings inquiries, labor disputes or investigations pending.
| 15. | CONCENTRATIONS |
Financial instruments, which potentially subject the Company to concentrations of credit risk, consist primarily of trade accounts receivable. The Company performs ongoing credit evaluations of its customers and generally does not require collateral related to its trade accounts receivable. At December 31, 2018, accounts receivable from one customer comprised 100% of the Company’s total accounts receivable-trade. Revenues from one customer approximated 95% of total revenues for 2018. At December 31, 2017, accounts receivable from two customers comprised 100% of the Company’s total accounts receivable-trade. Revenues from four customers approximated 85% of total revenues for 2017.
| 16. | SUBSEQUENT EVENTS |
On January 25, 2019, the Company completed the sale of 4,015,500 shares of its common stock pursuant to the Amended SPA (discussed above in Footnote #9 – Shareholders’ Equity) at $0.50 per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Dan Erdberg in the amount of $50,000 and (4) a full-recourse promissory note payable by Kendall Carpenter in the amount of $25,000. Each note bears an interest rate at a fixed rate of 3% per annum and principal and interest under the notes may be prepaid at any time without penalty. The non-affiliate note was fully repaid on February 8, 2019, including $575 in accrued interest. The Erdberg and Carpenter notes have a maturity date of January 25, 2020. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019 leaving a principal balance of $17,500.
On March 20, 2019, the Company’s board of directors approved 180,000 options outside its 2015 Equity Plan to purchase the Company’s common stock to two employees and a contractor for services provided. Two grants totaling 80,000 options vest after one year and one grant of 100,000 options vests after two years. These stock options are exercisable at an exercise price of $1.00 per share and expire on March 20, 2023.
F-23
CONSOLIDATED BALANCE SHEETS
June 30, 2019 | December 31, 2018 | |||||||
| (Unaudited) | ||||||||
| ASSETS | ||||||||
| CURRENT ASSETS: | ||||||||
| Cash | $ | 675,772 | $ | 2,282,365 | ||||
| Accounts receivable - trade | 1,372,994 | 18,000 | ||||||
| Inventory, net | 1,459,665 | 307,925 | ||||||
| Prepaid expenses and deposits | 193,758 | 89,613 | ||||||
| Total current assets | 3,702,189 | 2,697,903 | ||||||
| PROPERTY AND EQUIPMENT, at cost: | 275,420 | 176,955 | ||||||
| Less - accumulated depreciation | (145,574 | ) | (123,725 | ) | ||||
| Net property and equipment | 129,846 | 53,230 | ||||||
| OTHER ASSETS: | ||||||||
| Right of use leased assets | 146,642 | - | ||||||
| Goodwill | 99,799 | 99,799 | ||||||
| Intangible assets, net | 559,667 | 705,667 | ||||||
| Total other assets | 806,108 | 805,466 | ||||||
| TOTAL ASSETS | $ | 4,638,143 | $ | 3,556,599 | ||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||
| CURRENT LIABILITIES: | ||||||||
| Accounts payable - trade and accrued liabilities | $ | 396,776 | $ | 485,024 | ||||
| Bank line of credit | 2,000,000 | 2,000,000 | ||||||
| Operating lease liability | 97,445 | - | ||||||
| Total current liabilities | 2,494,221 | 2,485,024 | ||||||
| LONG TERM LIABILITIES: | ||||||||
| Operating lease liability | 49,945 | - | ||||||
| TOTAL LIABILITIES | $ | 2,544,166 | $ | 2,485,024 | ||||
| COMMITMENTS AND CONTINGENCIES | - | - | ||||||
| STOCKHOLDERS’ EQUITY: | ||||||||
| Common stock, $.0001 par value; authorized 300,000,000 shares; 27,556,121 and 23,640,621 shares issued and outstanding, at June 30, 2019 and December 31, 2018, respectively | 2,756 | 2,364 | ||||||
| Additional paid-in capital | 41,612,671 | 39,541,301 | ||||||
| Retained deficit | (39,521,450 | ) | (38,472,090 | ) | ||||
| Total stockholders’ equity | 2,093,977 | 1,071,575 | ||||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY | $ | 4,638,143 | $ | 3,556,599 | ||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
F-24
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
| For the Three Months Ended | For the Six Months Ended | |||||||||||||||
| June 30, | June 30, | June 30, | June 30, | |||||||||||||
| 2019 | 2018 | 2019 | 2018 | |||||||||||||
| Revenues | $ | 1,373,047 | $ | 42,000 | $ | 1,380,497 | $ | 911,023 | ||||||||
| Cost of goods sold | 401,262 | 11,637 | 404,812 | 486,030 | ||||||||||||
| Gross profit | 971,785 | 30,363 | 975,685 | 424,993 | ||||||||||||
| General and administrative expense | 884,876 | 1,028,319 | 1,959,788 | 3,030,928 | ||||||||||||
| Income (Loss) from operations | 86,909 | (997,956 | ) | (984,103 | ) | (2,605,935 | ) | |||||||||
| Other income (expense) | ||||||||||||||||
| Interest income | - | - | 933 | - | ||||||||||||
| Interest expense | (33,095 | ) | (78,144 | ) | (66,190 | ) | (148,455 | ) | ||||||||
| Total other expense | (33,095 | ) | (78,144 | ) | (65,257 | ) | (148,455 | ) | ||||||||
| NET INCOME (LOSS) | 53,814 | (1,076,100 | ) | (1,049,360 | ) | (2,754,390 | ) | |||||||||
| Weighted average number of common shares outstanding - basic | 27,589,088 | 9,182,470 | 27,067,792 | 9,182,470 | ||||||||||||
| Weighted average number of common shares outstanding - diluted | 34,209,218 | 9,182,470 | 27,067,792 | 9,182,470 | ||||||||||||
| Basic net income (loss) per share | $ | 0.00 | $ | (0.12 | ) | $ | (0.04 | ) | $ | (0.30 | ) | |||||
| Diluted net income (loss) per share | $ | 0.00 | $ | (0.12 | ) | $ | (0.04 | ) | $ | (0.30 | ) | |||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
F-25
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT) (Unaudited)
For the Three and Six Months Ended June 30, 2019 and 2018
| Common Stock | Additional Paid-in | Accumulated | ||||||||||||||||||
| Shares | Amount | Capital | Deficit | Total | ||||||||||||||||
| Balance - December 31, 2018 | 23,640,621 | $ | 2,364 | $ | 39,541,301 | $ | (38,472,090 | ) | $ | 1,071,575 | ||||||||||
| Net Loss - 1Q2019 | (1,103,174 | ) | (1,103,174 | ) | ||||||||||||||||
| Stock Based Compensation - Non-employee Shares | 72,500 | 72,500 | ||||||||||||||||||
| Stock Based Compensation - Options and Warrants | 15,705 | 15,705 | ||||||||||||||||||
| Common stock issued for cash | 4,015,500 | 402 | 1,957,348 | 1,957,750 | ||||||||||||||||
| Balance - March 31, 2019 | 27,656,121 | $ | 2,766 | $ | 41,586,854 | $ | (39,575,264 | ) | $ | 2,014,356 | ||||||||||
| Net Income - 2Q2019 | 53,814 | 53,814 | ||||||||||||||||||
| Stock Based Compensation - Non-employee Shares | (10,000 | ) | (10,000 | ) | ||||||||||||||||
| Stock Based Compensation - Options and Warrants | 35,807 | 35,807 | ||||||||||||||||||
| Common stock returned | (100,000 | ) | (10 | ) | 10 | - | ||||||||||||||
| Balance - June 30, 2019 | 27,556,121 | $ | 2,756 | $ | 41,612,671 | $ | (39,521,450 | ) | $ | 2,093,977 | ||||||||||
| Common Stock | Additional Paid-in | Accumulated | ||||||||||||||||||
| Shares | Amount | Capital | Deficit | Total | ||||||||||||||||
| Balance - December 31, 2017 | 9,182,470 | $ | 918 | $ | 27,692,067 | $ | (29,996,777 | ) | $ | (2,303,792 | ) | |||||||||
| Net Loss - 1Q2018 | (1,678,290 | ) | (1,678,290 | ) | ||||||||||||||||
| Stock Based Compensation - Non-employee Shares | 39,791 | 39,791 | ||||||||||||||||||
| Stock Based Compensation - Options and Warrants | 39,405 | 39,405 | ||||||||||||||||||
| Stock Based Compensation - Employee Shares - Vesting for PY issuance | 944,300 | 944,300 | ||||||||||||||||||
| Balance - March 31, 2018 | 9,182,470 | $ | 918 | $ | 28,715,563 | $ | (31,675,067 | ) | $ | (2,958,586 | ) | |||||||||
| Net Loss - 2Q2018 | (1,076,100 | ) | (1,076,100 | ) | ||||||||||||||||
| Stock Based Compensation - Non-employee Shares | (17,291 | ) | (17,291 | ) | ||||||||||||||||
| Stock Based Compensation - Options and Warrants | 197,698 | 197,698 | ||||||||||||||||||
| Balance - June 30, 2018 | 9,182,470 | $ | 918 | $ | 28,895,970 | $ | (32,751,167 | ) | $ | (3,854,279 | ) | |||||||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
F-26
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
| For the Six Months Ended | ||||||||
June 30, 2019 | June 30, 2018 | |||||||
| OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | (1,049,360 | ) | $ | (2,754,390 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Depreciation expense | 21,849 | 20,535 | ||||||
| Loss on disposal of property, plant, and equipment | - | 9,428 | ||||||
| Amortization expense of intangible assets | 146,000 | 146,000 | ||||||
| Noncash lease expense | 43,121 | - | ||||||
| Stock based compensation | 114,012 | 1,203,903 | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | (1,354,994 | ) | 110,065 | |||||
| Inventory | (1,151,740 | ) | 65,830 | |||||
| Prepaid expenses and other current assets | (104,145 | ) | 37,445 | |||||
| Operating lease obligation | (42,373 | ) | - | |||||
| Accounts payable and accrued expense | (88,248 | ) | (84,341 | ) | ||||
| Due from related party | - | 1,685 | ||||||
| Net cash used in operating activities | (3,465,878 | ) | (1,243,840 | ) | ||||
| INVESTING ACTIVITIES: | ||||||||
| Cash received from sale of vehicle | - | 60,000 | ||||||
| Cash paid on fixed assets | (98,465 | ) | (1,930 | ) | ||||
| Net cash provided by (used in) investing activities | (98,465 | ) | 58,070 | |||||
| FINANCING ACTIVITIES: | ||||||||
| Proceeds from sale of common stock | 1,957,750 | - | ||||||
| Proceeds from related party convertible note payable | - | 500,000 | ||||||
| Proceeds from bank line of credit | - | 500,000 | ||||||
| Net cash provided by financing activities | 1,957,750 | 1,000,000 | ||||||
| NET DECREASE IN CASH | (1,606,593 | ) | (185,770 | ) | ||||
| CASH, beginning of period | 2,282,365 | 615,375 | ||||||
| CASH, end of period | $ | 675,772 | $ | 429,605 | ||||
| Noncash investing and financing activities for the six months ended June 30: | ||||||||
| ROU assets and operating lease obligations recognized | $ | 189,763 | $ | - | ||||
| SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | ||||||||
| Cash paid during the six months ended June 30: | ||||||||
| Interest | $ | 66,190 | $ | 144,347 | ||||
| Income taxes | $ | - | $ | - | ||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
F-27
NOTES TO INTERIM UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
For the Period Ended June 30, 2019
| 1. | BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES |
The following unaudited interim consolidated financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). Accordingly, such interim financial statements do not include all the information and footnotes required by accounting principles generally accepted in the United States for complete annual financial statements. The information furnished reflects all adjustments, consisting only of normal recurring items which are, in the opinion of management, necessary in order to make the financial statements not misleading. The results of operations for the interim periods are not necessarily indicative of the results to be expected for the full year. The balance sheet as of December 31, 2018 has been derived from the Company’s annual financial statements that were audited by an independent registered public accounting firm but does not include all of the information and footnotes required for complete annual financial statements. The unaudited consolidated financial statements included in this Quarterly Report on Form 10-Q should be read in conjunction with the consolidated financial statements and the notes thereto included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2018 filed by Drone Aviation Holding Corp. (“we”, “our”, “the Company”) with the SEC on March 22, 2019.
Revenue Recognition
In May 2014, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09 (Topic 606), “Revenue from Contracts with Customers.” Topic 606 supersedes the revenue recognition requirements in Topic 605, “Revenue Recognition” and requires entities to recognize revenues when control of the promised goods or services is transferred to customers at an amount that reflects the consideration to which the entity expects to be entitled to in exchange for those goods or services. The principles in the standard are applied in five steps: 1) identify the contract(s) 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 (or as) the entity satisfies a performance obligation. The Company adopted Topic 606 as of January 1, 2018 using the modified retrospective transition method. The Company recognized the cumulative effect of adopting this guidance as an adjustment to our opening balance of retained earnings. Prior periods will not be retrospectively adjusted. The adoption of Topic 606 does not have a material impact to our consolidated financial statements, including the presentation of revenues in our Consolidated Statements of Operations, which were not broken down by revenue stream or geographic areas since the Company only sells within the United States and has only one revenue stream.
Leases
Effective January 1, 2019, the Company adopted ASU No. 2016-02, Leases (Topic 842) (“ASU 2016-02”) using the required modified retrospective approach. The most significant changes under the new guidance include clarification of the definition of a lease, and the requirements for lessees to recognize a Right of Use (“ROU”) asset and a lease liability for all qualifying leases with terms longer than twelve months in the consolidated balance sheet. In addition, under Topic 842, additional disclosures are required to meet the objective of enabling users of financial statements to assess the amount, timing and uncertainty of cash flows arising from leases. See Footnote #13 below for more detail on the Company’s accounting with respect to lease accounting.
Income (Loss) Per Common Share
Basic net income (loss) per common share is computed by dividing net income (loss) available to common shareholders by the weighted average number of shares outstanding. Diluted net income (loss) per common share is computed similar to basic net income (loss) per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potential common shares had been issued and if the additional common shares were dilutive. The dilutive effect of the Company’s options and warrants is computed using the treasure stock method.
The following table sets for the computation of basic and diluted income (loss) per share:
| For the Three Months Ended | For the Six Months Ended | |||||||||||||||
| June 30, | June 30, | June 30, | June 30, | |||||||||||||
| 2019 | 2018 | 2019 | 2018 | |||||||||||||
| Numerator: | ||||||||||||||||
| Net Income (Loss) | $ | 53,814 | $ | (1,076,100 | ) | $ | (1,049,360 | ) | $ | (2,754,390 | ) | |||||
| Numerator for basic and diluted EPS - income (loss) available to common Shareholders | $ | 53,814 | $ | (1,076,100 | ) | $ | (1,049,360 | ) | $ | (2,754,390 | ) | |||||
| Denominator: | ||||||||||||||||
| Denominator for basic EPS - Weighted average shares | 27,589,088 | 9,182,470 | 27,067,792 | 9,182,470 | ||||||||||||
| Dilutive Effect of Warrants and Options | 6,620,130 | - | - | - | ||||||||||||
| Denominator for diluted EPS - adjusted Weighted average shares and assumed Conversions | 34,209,218 | 9,182,470 | 27,067,792 | 9,182,470 | ||||||||||||
| Basic and Diluted income (loss) per common share | $ | 0.00 | $ | (0.12 | ) | $ | (0.04 | ) | $ | (0.30 | ) | |||||
F-28
Stock-Based Compensation
Effective January 1, 2019, the Company adopted ASU No. 2018-07, Compensation – Stock Based Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-7”), which aligns accounting for share-based payments issued to nonemployees to that of employees under the existing guidance of Topic 718, with certain exceptions. This update supersedes previous guidance for equity-based payments to nonemployees under Subtopic 505-50, Equity – Equity-Based Payments to Non-Employees. The adoption of ASU 2018-07 did not have a material impact on the Company’s consolidated financial statements.
| 2. | MANAGEMENT’S LIQUIDITY PLANS |
On August 27, 2014, FASB issued ASU 2014-05, Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern, which requires management to assess a company’s ability to continue as a going concern within one year from financial statement issuance and to provide related footnote disclosures in certain circumstances.
The accompanying unaudited consolidated financial statements and notes have been prepared assuming the Company will continue as a going concern. For the six months ended June 30, 2019, the Company incurred a net loss of $1,049,360, generated negative cash flow from operations, has an accumulated deficit of $39,521,450 and working capital of $1,207,968.
For the year ended December 31, 2017, the Company disclosed that its ability to continue as a going concern was predicated on the Company’s ability to create and market innovative products, raise capital, reduce debt or renegotiate terms, and to sustain adequate working capital to finance its operations. During 2018, the Company met or exceeded those predications. In 2018, the Company made a strategic decision to focus on its aerostats, WASP and WASP Lite, and opportunities for those products with military and government customers, resulting in an order valued in excess of $3.7 million which was announced in December 2018 and expected to be delivered by the end of 2019. In December 2018 and January 2019, the Company raised over $4,000,000 through stock sales which will provide ample working capital to produce WASP systems. In December 2018, the holders of $5,000,000 in convertible notes exercised their rights to convert to equity, leaving only $2,000,000 in bank debt on the books. As of June 30, 2019, the Company has $1,207,968 in positive working capital, an improvement of almost $1,000,000 over the working capital balance at the end of 2018.
The focus on opportunities for aerostats, the settlement of debt obligations, the funds generated from stock sales and other initiatives contributing to additional working capital should avoid any substantial doubt about the Company’s ability to continue as a going concern as defined by ASU 2014-05. We believe that the actions discussed above mitigate the substantial doubt raised by our recent operating losses and satisfy our estimated liquidity needs twelve months from the issuance of the financial statements. However, we cannot predict, with certainty, the outcome of our actions to generate liquidity and the failure to do so could negatively impact our future operations.
| 3. | RELATED PARTY TRANSACTIONS |
The Company accounts for related party transactions in accordance with the FASB’s Accounting Standards Codification (“ASC”) 850, “Related Party Disclosures.” A party is considered to be related to the Company if the party directly or indirectly or through one or more intermediaries, controls, is controlled by, or is under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests. A party is also a related party if it can significantly influence the management or operating policies of the transacting parties or if it has an ownership interest in one of the transacting parties and can significantly influence the other to an extent that one or more of the transacting parties might be prevented from fully pursuing its own separate interests.
On November 10, 2017, the Company and Global Security Innovative Strategies, LLC (“GSIS”), a related party, entered in an agreement (the “GSIS Agreement”) pursuant to which GSIS agreed to provide business development support and general consulting services for sales opportunities with U.S. government agencies and other identified prospects and consulting support services for the Company’s role and activities as part of the Security Center of Excellence in Orlando, Florida. The GSIS Agreement had an initial term of six months beginning on November 1, 2017. On September 26, 2018, the parties amended the GSIS Agreement to extend the period of service through September 2019 with monthly automatic renewals thereafter. The Company also agreed to issue an option to purchase 100,000 shares of Company stock. This option immediately vested, had a strike price of $1.00, and terminates on September 26, 2022. Pursuant to the GSIS Agreement, the Company pays GSIS a fee of $10,000 per month. In addition, the Company agreed to pay the expenses of GSIS incurred in connection with the performance of its duties under the GSIS Agreement. Either party may terminate or renew the GSIS Agreement at any time, for any reason or no reason, upon at least 30 days’ notice to the other party. David Aguilar, a member of the Company’s board of directors, is a principal at GSIS.
F-29
On March 21, 2019, concurrent with the resignation of Kevin Hess, the Company’s Chief Technology Officer, the Company and Cognitive Carbon Corporation (“CCC”), a related party, entered into an agreement pursuant to which CCC agreed to provide Chief Technology Officer services, sales and marketing services and outsourced software and platform development services to be provided personally by Kevin Hess or third-party development firms of his choosing for outsourced development. CCC will receive $19,750 per month for one year for the Chief Technology Officer services and potential bonuses and an amount up to $120,000 for outsourced software and platform development. Felicia Hess, the Company’s Chief Quality Officer, who is married to Kevin Hess, is the President and Director of CCC.
| 4. | INVENTORIES |
Inventories are stated at the net realizable value, using the first-in first-out method. Cost includes materials, labor and manufacturing overhead related to the purchase and production of inventories. We regularly review inventory quantities on hand, future purchase commitments with our supplies, and the estimated utility of our inventory. If the review indicates a reduction in utility below carrying value, we reduce our inventory to a new cost basis through a charge to cost of goods sold. At June 30, 2019, the increase in inventory is primarily related to WASP and WASP Lite systems in production pursuant to announced orders. Inventory consists of the following at June 30, 2019 and December 31, 2018:
| June 30, 2019 | December 31, 2018 | |||||||
| Raw Materials | $ | 644,670 | $ | 136,555 | ||||
| Work in progress | 825,418 | 180,041 | ||||||
| Finished Goods | 521,946 | 523,698 | ||||||
| Less valuation allowance | (532,369 | ) | (532,369 | ) | ||||
| Total | $ | 1,459,665 | $ | 307,925 | ||||
| 5. | PREPAID EXPENSES |
Prepaid expenses consisted of the following at June 30, 2019 and December 31, 2018:
| June 30, 2019 | December 31, 2018 | |||||||
| Prepaid insurance | $ | 14,752 | $ | 28,828 | ||||
| Prepaid products and services | 169,006 | 54,870 | ||||||
| Prepaid rent and security deposit | 10,000 | 5,915 | ||||||
| $ | 193,758 | $ | 89,613 | |||||
| 6. | PROPERTY AND EQUIPMENT |
Property and equipment is recorded at cost when acquired. Depreciation is provided principally on the straight-line method over the estimated useful lives of the related assets, which is 3-7 years for equipment, furniture and fixtures, hardware and software and leasehold improvements. During the six months ended June 30, 2019, the Company invested $19,305 in computers for new hires. The Company also invested $59,660 in new shop equipment, $1,266 in office furnishings and $18,234 in leasehold improvements, primarily in connection with the opening of a satellite location for aerostat manufacturing. Depreciation expense was $21,849 and $20,535 for the six months ended June 30, 2019 and 2018, respectively. Property and equipment consists of the following at June 30, 2019 and December 31, 2018:
| June 30, 2019 | December 31, 2018 | |||||||
| Shop machinery and equipment | $ | 147,194 | $ | 87,534 | ||||
| Computers and electronics | 51,398 | 32,093 | ||||||
| Office furniture and fixtures | 39,080 | 37,814 | ||||||
| Leasehold improvements | 37,748 | 19,514 | ||||||
| 275,420 | 176,955 | |||||||
| Less - accumulated depreciation | (145,574 | ) | (123,725 | ) | ||||
| $ | 129,846 | $ | 53,230 | |||||
F-30
| 7. | INTANGIBLE ASSETS |
On July 20, 2015, the Company, through its wholly-owned subsidiary, Drone AFS Corp., purchased substantially all the assets of Adaptive Flight, Inc. (“AFI”), a Georgia corporation. The Company purchased assets, including, but not limited to, intellectual property, licenses and permits, including commercial software licenses for the GUST (Georgia Tech UAV Simulation Tool) autopilot system and other transferable licenses which include flight simulation and fault tolerant flight control algorithms. The Company paid $100,000 in immediately available funds and $100,000 to be held in escrow. In addition, the Company issued 150,000 shares of unregistered common stock valued at $8.40 per share, on a post-October 29, 2015 reverse stock split basis, on the date of agreement, to be held in escrow.
The Company had a milestone of twelve months to complete a technology integration plan, the non-completion of which could result in the return of the purchased assets and termination of the Company’s obligations to release the escrow cash and shares. Additional milestones included exclusive, no-cost and perpetual licenses to all contributing intellectual property included or related to the purchased assets. As such time as all milestones were met, one-half of the escrow shares were to be released to AFI. Upon termination of the escrow agreement, anticipated to be twelve months from the closing of the asset purchase, if all milestones had been met, the remaining escrow shares would be released to AFI; but if all milestones have not been met, the escrow cash and escrow shares would be released to the Company and the purchased assets would be returned to AFI. According to the terms of the Escrow Agreement, if the escrow share value was less than $1,400,000, the Company must issue an additional number of unregistered shares, not to exceed 50,000 shares. At December 31, 2015, the value of the 150,000 shares was $3.23 per share, or $484,500. The Company recorded $161,500 as an additional liability and expense at December 31, 2015 for the cost of 50,000 shares at $3.23 per share. On June 3, 2016, the Integration Plan was deemed to be completed. At June 3, 2016, the value of the 150,000 shares was $3.01 per share, or $451,150. The additional liability was reduced to $150,500 for the cost of 50,000 shares at $3.01 per share. The Company recorded the $11,000 reduction in the additional liability through the statement of operations at June 3, 2016. The Company began amortizing the $1,460,000 of purchased assets over a sixty-month period on June 3, 2016 in the amount of $24,333 per month. Total amortization expense for the six months ended June 30, 2019 was $146,000. The remaining unamortized balance of $559,667 is estimated be amortized in the estimated amounts of $146,000 during 2019, $292,000 during 2020 and $121,667 in 2021.
The asset acquisition did not qualify as a business combination under ASC 805-10 and has been accounted for as a regular asset purchase.
| 8. | SUBSCRIPTION NOTES RECEIVABLE, INCLUDING RELATED PARTY |
On January 25, 2019, the Company completed the sale of 4,015,500 shares of its common stock pursuant to the Amended and Restated Stock Purchase Agreement (discussed below in Footnote #10 – Shareholders’ Equity) at $0.50 per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Daniyel Erdberg, the Company’s President, in the amount of $50,000, and (4) a full-recourse promissory note payable by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000. Each note bears an interest rate at a fixed rate of 3% per annum and principal and interest under the notes may be prepaid at any time without penalty. The non-affiliate note was fully repaid on February 8, 2019, including $575 in accrued interest. Each of the Erdberg and Carpenter notes has a maturity date of January 25, 2020. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019. On April 30, 2019, Kendall Carpenter repaid the remaining principal balance of the $17,500 note, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 100,000 shares of common stock paid pursuant to the note described above and cancelled the $50,000 note and the related $267 in accrued interest.
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| 9. | REVOLVING LINE OF CREDIT |
On August 2, 2017, the Company issued a promissory note (the “CNB Note”) to City National Bank of Florida (“CNB”) in the principal amount of $2,000,000, with a maturity date of August 2, 2018. On September 26, 2018, the Company and CNB agreed to extend the maturity date of the CNB Note to August 2, 2019. The Company and CNB are presently negotiating the maturity date extension to August 2, 2020 and expects this extension to be executed by the end of August 2019. The Company evaluated the modification under ASC 470-50 and determined that it did not qualify as an extinguishment of debt. The CNB Note evidences a revolving line of credit with advances that may be requested by the Company until the maturity date of August 2, 2019 so long as no event of default exists under the CNB Note, the Company or Jay H. Nussbaum, the Company’s Chairman of the Board and Chief Executive Officer, does not cease doing business, Mr. Nussbaum does not seek to revoke or modify his guarantee of the CNB Note, the Company does not misapply the proceeds of this loan or CNB in good faith does not believe itself insecure. The initial CNB Note bore an interest rate at a variable rate equal to 0.250 percentage points over the Wall Street Journal Prime Rate payable monthly. At renewal, the variable rate was increased to 1.0 percentage points over the Wall Street Journal Prime Rate. The Company will pay to CNB a late charge of 5.0% of any monthly payment not received by CNB within 10 calendar days after its due date. The Company may prepay the CNB Note at any time without penalty. In the event of a default, the interest rate will increase to the highest lawful rate. The Company is obligated to maintain depository accounts with CNB with a minimum average annual balance of $1,600,000 in the aggregate with Mr. Nussbaum. In the event the Company does not maintain this account balance, CNB may charge the Company a fee equal to 2% of the deficiency as additional interest under the CNB Note. The CNB Note is personally guaranteed by Mr. Nussbaum pursuant to written guarantee in favor of CNB. Mr. Nussbaum and the Company are obligated to maintain an aggregate unencumbered liquidity of no less than $6,000,000 in the form of cash, repurchase agreements, certificates of deposit or marketable securities acceptable to CNB. In addition, to secure our obligations under the CNB Note, we entered into a security agreement in favor of CNB encumbering all of our accounts, inventory and equipment along with an assignment of a bank account we maintain at CNB with a balance of $120,000. As of June 30, 2019, $2,000,000 has been drawn against the line of credit. Accrued interest of $11,194 related to the CNB line of credit has been recorded as of June 30, 2019.
Indemnification Agreement
On August 3, 2017, the Company entered into an Indemnification Agreement with Mr. Nussbaum in order to indemnify and defend him to the fullest extent permitted by law for any claim, expense or obligation which might arise as a result of his guarantee of the CNB Note.
| 10. | SHAREHOLDERS’ EQUITY |
For the six months ended June 30, 2019
On January 25, 2019, the Company completed the sale of 3,915,500 shares of its common stock pursuant to the Amended and Restated Stock Purchase Agreement dated December 21, 2018 at $0.50 per share for an adjusted aggregate of $1,957,750 in cash, described above in Footnote #8.
On October 25, 2018, the Board approved Amendment No. 3 to the August 27, 2014 Independent Contractor Agreements it entered into with Dr. Philip Frost and Steven Rubin who serve as members of the Company’s Strategic Advisory Board (the “SAB Amendments”). The SAB Amendments extend the term of the agreements from November 1, 2018 until October 31, 2019 and provide for the following equity-based compensation: (a) for Dr. Frost, an award of 150,000 shares of the Company’s unregistered restricted Common Stock and (b) for Mr. Rubin, an award of 100,000 shares of the Company’s unregistered restricted Common Stock. The restricted stock vests upon the occurrence of a change of control (as defined in the SAB Amendments). The Company recognized $62,500 expense for the pro rata portion of shares earned by the two members during the six months ended June 30, 2019, amortizing the expense over the 12 months of the service agreement regardless of the vesting condition. As of June 30, 2019, the Company had unamortized stock compensation of $41,667 related to these two stock awards.
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For the six months ended June 30, 2018
On August 3, 2017, the Company entered into an amendment to the August 24, 2014 Independent Contractor Agreements it entered into with Dr. Philip Frost and Steven Rubin who serve as members of the Company’s Strategic Advisory Board (the “SAB Amendments”). The SAB Amendments extend the term of the agreements from May 1, 2017 until April 30, 2018 and provide for the following equity based compensation: (a) for Dr. Frost, a warrant to purchase 2,000,000 shares of the Company’s Common Stock (the “Frost Warrant”) and an award of 150,000 shares of the Company’s unregistered restricted Common Stock and (b) for Mr. Rubin, an award of 100,000 shares of the Company’s unregistered restricted Common Stock. The restricted stock vests upon the occurrence of a change of control (as defined in the SAB Amendments). The Warrant has a term of five years and exercise price of $1.00 per share subject to proportional adjustment in the event of stock splits, stock dividends and similar corporate events. The Company recognized $22,500 expense for the pro rata portion of shares earned by the two members during the six months ended June 30, 2018, amortizing the expense over the 12 months of the service agreement regardless of the vesting condition.
In September 2016, the Company issued 1,349,000 shares of restricted common stock outside of the 2015 Equity Plan to Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, Mike Silverman and Reginald Brown pursuant to Stock Award Agreements. The shares will vest upon consummation of a significant equity and/or debt financing of at least $5,000,000 provided that the holder remains engaged by the Company through the vesting date. On August 3, 2017, these awards were modified so that the restrictions set forth in the RSA lapse upon the earlier of (i) consummation of a significant equity and/or debt financing from which the Company receives gross proceeds of at least $7,000,000 or (ii) a change in control (as defined in the RSA Amendment), provided that, in either case, the holder remains engaged by the Company through the date of such event. The Company does not believe the modified vesting conditions are probable of being achieved, and as such, no stock-based compensation expense has been recorded. The Company will reassess whether achievement of the vesting conditions is probable at each reporting date. If it is probable, stock-based compensation will be recognized.
On March 28, 2018, these awards were modified in recognition of the Company securing a substantial sales order and recent business development activity and vested on that date. On that date, the awards were determined to be probable for vesting and stock-based compensation was recognized based on the fair market value of the stock on March 28, 2018. The Company recorded $944,300 in stock-based compensation for these awards.
| 11. | EMPLOYEE STOCK OPTIONS |
For the six months ended June 30, 2019
On March 20, 2019, the Company’s board of directors approved option grants to two employees outside its 2015 Equity Plan. One grant, relating to the option to purchase 30,000 shares of the Company’s common stock, vests after one year, and one grant, relating to the option to purchase 100,000 shares of the Company’s common stock, vests after two years. These stock options have an exercise price of $1.06 per share and expire on March 20, 2023. During the six months ended June 30, 2019, $15,408 in compensation expense was recognized on these two options with a remaining balance of $73,810 to be recognized over the vesting period as of June 30, 2019.
On March 28, 2018, upon approval of the Company’s board of directors, the Company granted to Robert Guerra, a newly appointed director, an option to purchase 100,000 shares of the Company’s common stock outside its 2015 Equity Plan. The option vests 50% one year after the date of grant and the remaining 50% two years after the date of grant provided the director is still actively involved with the Company. The option has an exercise price of $1.00 per share and expires on March 28, 2022. During the six months ended June 30, 2019 and 2018, $9,444 and $7,394 in compensation expense was recognized, respectively, on this option with a remaining balance of $7,211 to be recognized over the vesting period as of June 30, 2019.
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On May 16, 2018, upon approval of the Company’s board of directors, the Company granted options to purchase shares of its common stock outside its 2015 Equity Plan to four employees. Reginald Brown, Jr. was issued an option to purchase 200,000 shares of common stock, and Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, was issued an option to purchase 130,000 shares of common stock. These options were immediately vested, have an exercise price of $1.00 per share and expire May 16, 2022. Two engineers received options to purchase an aggregate of 130,000 shares of common stock. These options vest 50% after one year and the remaining 50% after two years, have an exercise price of $1.00 per share and expire May 16, 2022. One of the engineers terminated during the first quarter of 2019, before his option relating to 40,000 shares vested, and $7,376 in previously recognized 2018 expense was reversed due to option expiration. During the six months ended June 30, 2019, $11,112 compensation expense was recognized on the remaining option to purchase 90,000 shares, with a remaining balance of $7,817 to be recognized over the vesting period as of June 30, 2019.
On December 13, 2017, upon approval of the Company’s board of directors the Company issued outside its 2015 Equity Plan, 100,000 options each to two newly-appointed directors, or a total of 200,000 options. These options vest 50% after one year and the remaining 50% after two years provided the director is still actively involved with the Company. The options are exercisable at an exercise price of $1.00 per share and expire on December 13, 2021. During the six months ended June 30, 2019 and 2018, $13,424 and $36,426 compensation expense was recognized, respectively, on these 200,000 options with a remaining balance of $12,123 to be recognized over the vesting period as of June 30, 2019.
The Company used the Black-Scholes option pricing model to estimate the fair value on the date of grant of the options to purchase 130,000 shares of common stock granted during the six months ended June 30, 2019.
The following table summarizes the assumptions used to estimate the fair value of stock options granted during the six months ended June 30, 2019 on the date of the grant:
| 2019 | ||||
| Expected dividend yield | 0 | % | ||
| Expected volatility | 90 | % | ||
| Risk-free interest rate | 2.40-2.47 | % | ||
| Expected life of options | 4.0 years | |||
Under the Black-Scholes option pricing model, the fair value of the options to purchase an aggregate of 130,000 shares of common stock granted during the six months ended June 30, 2019 is estimated at $89,217 on the date of grant. During the six months ended June 30, 2019, $15,408 compensation expense was recognized on these options with a total of $73,810 to be recognized over the vesting periods.
The following table represents stock option activity as of and for the six months ended June 30, 2019:
| Number of Options | Weighted Average Exercise Price per Share | Weighted Average Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding – December 31, 2018 | 13,990,000 | $ | 0.61 | 3.15 | ||||||||||||
| Exercisable – December 31, 2018 | 13,610,000 | $ | 0.59 | 3.16 | $ | 0 | ||||||||||
| Granted | 130,000 | $ | 1.06 | |||||||||||||
| Cancelled or Expired | (50,000 | ) | $ | 0.90 | ||||||||||||
| Outstanding – June 30, 2019 | 14,070,000 | $ | 0.61 | 2.61 | ||||||||||||
| Exercisable – June 30, 2019 | 13,745,000 | $ | 0.60 | 2.66 | $ | 4,466,080 | ||||||||||
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For the six months ended June 30, 2018
During 2016, the Company granted 10,000 options to an employee with two-year vesting and an exercise price of $3.00 and an expiration date of December 6, 2019. The Company recognized $2,210 in compensation for the six months ended June 30, 2018. No additional compensation was recognized on these options which were cancelled due to the termination of the employee.
On June 1, 2015, the Company issued an option award to an employee for 37,500 shares vesting over three years with an exercise price of $10.80 and expiration date of May 4, 2019. During the six months ended June 30, 2018, $14,369 compensation expense was recognized on these 37,500 options. No additional compensation was recognized on these options which were cancelled due to the termination of the employee.
On January 9, 2017, the Company issued an option to purchase 100,000 shares of common stock with an exercise price of $2.90 per share to a director. The option vests 50,000 after one year from grant date and another 50,000 two years from grant date with an expiration date of four years from grant date provided that the Director is still providing service to the Company. During the six months ended June 30, 2018, $22,556 compensation expense was recognized on these 100,000 options.
The following table summarizes the assumptions used to estimate the fair value of the 560,000 stock options granted during the six months ended June 30, 2018 on the date of grant.
| 2018 | ||||
| Expected dividend yield | 0 | % | ||
| Expected volatility | 80-97 | % | ||
| Risk-free interest rate | 2.48-2.85 | % | ||
| Expected life of options | 4.00 years | |||
Under the Black-Scholes option pricing model, the fair value of the 560,000 options granted during the six months ended June 30, 2018 is estimated at $240,670 on the date of grant. During the six months ended June 30, 2018, $161,542 compensation expense was recognized on these 560,000 options.
The following table represents stock option activity as of and for the six months ended June 30, 2018:
| Number of Options | Weighted Average Exercise Price per Share | Weighted Average Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding – December 31, 2017 | 7,945,000 | $ | 1.38 | 3.50 | ||||||||||||
| Exercisable – December 31, 2017 | 7,627,500 | $ | 1.35 | 3.50 | $ | 0 | ||||||||||
| Granted | 560,000 | $ | 1.00 | |||||||||||||
| Cancelled or Expired | (317,500 | ) | $ | 5.03 | ||||||||||||
| Outstanding – June 30, 2018 | 8,187,500 | $ | 1.21 | 3.16 | $ | 0 | ||||||||||
| Exercisable – June 30, 2018 | 7,707,500 | $ | 1.21 | 3.14 | $ | 0 | ||||||||||
| 12. | WARRANTS |
For the six months ended June 30, 2019
On March 20, 2019, the Company issued a warrant to purchase 50,000 shares of the Company’s common stock outside its 2015 Equity Plan to a contractor for services. This warrant has an exercise price of $1.06 per share and an expiration date of March 20, 2023, and vests after one year.
F-35
The following table summarizes the assumptions used to estimate the fair value of the warrants granted during the six months ended June 30, 2019 on the date of grant.
| June 30, 2019 | ||||
| Expected dividend yield | 0 | % | ||
| Expected volatility | 90 | % | ||
| Risk-free interest rate | 2.40 | % | ||
| Expected life of warrants | 4.0 years | |||
Under the Black-Scholes option pricing model, the fair value of the warrant to purchase 50,000 shares of the Company’s common stock granted during the six months ended June 30, 2019 is estimated at $33,913 on the date of grant. During the six months ended June 30, 2019, $9,500 in compensation expense was recognized on this warrant with a total of $24,413 to be recognized over the vesting period as of June 30, 2019.
The following table represents warrant activity as of and for the six months ended June 30, 2019:
| Number of Warrants | Weighted Average Exercise Price | Weighted Average Remaining Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding – December 31, 2018 | 2,280,000 | $ | 0.72 | 3.44 | ||||||||||||
| Exercisable – December 31, 2018 | 2,280,000 | $ | 0.72 | 3.44 | $ | 0.00 | ||||||||||
| Granted | 50,000 | $ | 1.06 | |||||||||||||
| Forfeited or Expired | (60,000 | ) | $ | 2.91 | ||||||||||||
| Outstanding – June 30, 2019 | 2,270,000 | $ | 0.67 | 3.04 | $ | 0 | ||||||||||
| Exercisable – June 30, 2019 | 2,220,000 | $ | 0.66 | 3.03 | $ | 838,450 | ||||||||||
The following table represents warrant activity as of and for six months ended June 30, 2018:
| Number of Warrants | Weighted Average Exercise Price per Share | Weighted Average Contractual Life in Years | Aggregate Intrinsic Value | |||||||||||||
| Outstanding – December 31, 2017 | 2,232,500 | $ | 1.36 | 4.34 | ||||||||||||
| Exercisable – December 31, 2017 | 2,232,500 | $ | 1.36 | 4.34 | $ | 0 | ||||||||||
| Granted | 0 | $ | 0 | |||||||||||||
| Forfeited or Expired | (37,500 | ) | $ | 10.00 | ||||||||||||
| Outstanding – June 30, 2018 | 2,195,000 | $ | 1.21 | 3.91 | $ | 0 | ||||||||||
| Exercisable – June 30, 2018 | 2,195,000 | $ | 1.21 | 3.91 | $ | 0 | ||||||||||
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| 13. | LEASES |
As of June 30, 2019, the Company has two operating leases for office and manufacturing space which are further described below in Footnote #14 and no financial leases. The impact of ASU No. 2016-02 (“Leases (Topic 842)” on our consolidated balance sheet beginning January 1, 2019 was through the recognition of ROU assets and lease liabilities for operating leases. Amounts recognized at January 1 and March 1, 2019 for operating leases are as follows:
| January 1, 2019 | ||||
| ROU Assets | $ | 116,876 | ||
| Lease liability | $ | 116,876 | ||
| March
1, 2019 |
||||
| ROU Assets | $ | 72,887 | ||
| Lease liability | $ | 72,887 | ||
The Company elected the practical expedient under ASU 2018-11 “Leases: Targeted Improvements” which allows the Company to apply the transition provision for Topic 842 at the Company’s adoption date instead of at the earlies comparative period presented in the financial statements. Therefore, the Company recognized and measured leases existing at January 1, 2019 but without retrospective application. In addition, the Company elected the optional practical expedient permitted under the transition guidance which allows the Company to carry forward the historical accounting treatment for existing lease upon adoption. No impact was recorded to the income statement or beginning retained earnings for Topic 842.
The leased properties have a remaining lease term of nineteen months to thirty-seven months as of January 1, 2019. Neither lease has an option to extend beyond the stated termination date.
Beginning January 1, 2019, operating ROU assets and operating lease liabilities are recognized based on the present value of lease payments, including annual rent increases, over the lease term at commencement date. Operating leases in effect prior to January 1, 2019 were recognized at the present value of the remaining payments on the remaining lease term as of January 1, 2019. Because neither of our leases included an implicit rate of return, we used our incremental secured borrowing rate based on lease term information available as of the adoption date or lease commencement date in determining the present value of lease payments. The incremental borrowing rate on the Jacksonville lease is 5.9% and the incremental borrowing rate on the Holly Hill lease is 5.5%.
Other information related to our operating leases are as follows:
| June 30, 2019 | ||||
| ROU Asset – January 1, 2019 | $ | 116,876 | ||
| Increase | $ | 72,887 | ||
| Amortization | $ | (43,121 | ) | |
| ROU Asset – June 30, 2019 | $ | 146,642 | ||
| Lease liability – January 1, 2019 | $ | 116,876 | ||
| Increase | $ | 72,887 | ||
| Amortization | $ | (42,373 | ) | |
| Lease liability – June 30, 2019 | $ | 147,390 | ||
| Lease liability – short term | $ | 97,445 | ||
| Lease liability – long term | $ | 49,945 | ||
| Lease liability – total | $ | 147,390 | ||
As of June 30, 2019, our operating leases had a weighted average remaining lease term of 1.83 years and a weighted average discount rate of 5.72%.
F-37
The table below reconciles the fixed component of the undiscounted cash flows for each of the first five years and the total remaining years to the lease liabilities recorded on the Consolidated Balance Sheet as of June 30, 2019:
| Operating Leases | ||||
| Amounts due within twelve months of June 30, | ||||
| 2019 | $ | 102,656 | ||
| 2020 | 32,280 | |||
| 2021 | 19,695 | |||
| 2022 | - | |||
| 2023 | - | |||
| thereafter | - | |||
| Total minimum lease payments | 154,631 | |||
| Less: effect of discounting | 7,241 | |||
| Present Value of future minimum lease payments | 147,390 | |||
| Less: current obligations under leases | 97,445 | |||
| Long-term lease obligations | $ | 49,945 | ||
| 14. | COMMITMENTS AND CONTINGENCIES |
On November 17, 2014, the Company entered into a 60-month lease for 5,533 square feet of office and manufacturing space at 11651 Central Parkway, Suite 118, Jacksonville, Florida, with an anticipated lease commencement date of February 1, 2015. The actual commencement date was July 1, 2015 and the lease was amended to 61 months expiring July 31, 2020. The monthly rent, including operating expenses and sales tax, for each year of the initial lease term is estimated to be $5,915.
On March 1, 2019, the Company entered into a 37-month lease for 2,390 square feet of office and aerostat manufacturing space at 700 Ridgewood Avenue, Units 207/208, Holly Hill, Florida with a lease commencement date of March 1, 2019. The monthly rent, including operating expenses and sales tax, for each year of the initial lease term is estimated to be $2,091.
Rent expense for the six months ended June 30, 2019 and 2018 was $53,423 and $44,474, respectively.
The Company acquired licenses to certain technology of Georgia Tech Research Corporation (“GTRC”) through its purchase of AFI’s assets on July 20, 2015 and through direct license from GTRC. The licenses are perpetual and if the technology is patented, are protected through the expiration date of the patented know-how. Two of the licenses require a minimum royalty of $1,500 per year. Royalties are based on vehicle weight and range from $12.50 to $75.00 per vehicle on one license and $25.00 to $150.00 per vehicle on another license.
On May 16, 2016, Banco Popular North America (“Banco”) filed a lawsuit in Duval County, Florida in the Circuit Court of the Fourth Judicial Circuit against Aerial Products Corporation d/b/a Southern Balloon Works (“Aerial Products”), Kevin M. Hess, the Company’s Chief Technology Officer, Lighter Than Air Systems Corp., a wholly owned subsidiary of the Company (“LTAS”), and the Company to collect on a delinquent Small Business Administration loan that Banco made in 2007 to Aerial Products with Mr. Hess as the personal guarantor. LTAS and the Company filed an Answer on June 30, 2016 and Responses to Interrogatories on December 16, 2016. The lawsuit is active, and discovery is ongoing. Banco set a hearing on its Motion for Summary Judgment against Kevin Hess and Aerial Products for October 30, 2019. It is our position that neither LTAS nor the Company are continuations of Aerial Products, and LTAS and the Company have denied all allegations made by Banco. The Company will vigorously defend that position. The Company has evaluated the probability of loss as possible, but the range of loss is unable to be estimated.
Other than the Banco matter, there are no material claims, actions, suits, proceedings inquiries, labor disputes or investigations pending.
| 15. | SUBSEQUENT EVENTS |
On August 29, 2019, the Company and City National Bank agreed to extend the maturity date of the revolving line of credit discussed in Footnote #9 above to August 2, 2020. At renewal, the variable rate was modified to reflect the average of the interest rates per annum at which United States Dollars are offered in the London Interbank Borrowing Market (“Libor”) for a 30-day period (the “Index”) plus 2.9 percentage points over the Index, or a total of 5.13% annual interest rate as of August 29, 2019.
On September 4, 2019, Robert Guerra resigned as a director. On that date, the Company redeemed 100,000 shares of its common stock, which are now Treasury Stock, pursuant to a Redemption Agreement at $0.50 per share for an aggregate of $50,000. As a result of the resignation, Mr. Guerra forfeited 50,000 unvested options which had a $1.00 strike price.
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1,204,819 Units
DRONE AVIATION HOLDING CORP.
PROSPECTUS
| Co-Book-Running Manager | Co-Book-Running Manager |
| Roth Capital Partners | Aegis Capital Corp. |
Through and including [____________], 2019 (the 25th day after the date of this offering), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth all expenses to be paid by the registrant, other than estimated underwriting discounts and commissions, in connection with our public offering. All amounts shown are estimates except for the SEC registration fee, the NASDAQ listing fee and the FINRA filing fee:
| Type | Amount | |||
| SEC Registration Fee | $ | 3,284 | ||
| FINRA Filing Fee | 5,000 | |||
| NASDAQ Listing Fee | 50,000 | |||
| Legal Fees and Expenses | 300,000 | |||
| Accounting Fees and Expenses | 15,000 | |||
| Transfer agent and registrar’s fees and expenses | 10,000 | |||
| Printing and engraving expenses | 6,000 | |||
| Miscellaneous expense | 70,000 | |||
| Total Expenses | $ | 459,284 | ||
Item 14. Indemnification of Directors and Officers
We are a Nevada corporation and generally governed by the Nevada Private Corporations Code, Title 78 of the Nevada Revised Statutes, or NRS.
Section 78.138 of the NRS provides that, unless the corporation’s articles of incorporation provide otherwise, a director or officer will not be individually liable unless it is proven that (i) the director’s or officer’s acts or omissions constituted a breach of his or her fiduciary duties, and (ii) such breach involved intentional misconduct, fraud, or a knowing violation of the law. Our articles of incorporation, as amended, provide that the individual liability of our directors and officers is eliminated to the fullest extent permitted by the NRS.
Section 78.7502 of the NRS permits a company to indemnify its directors and officers against expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with a threatened, pending, or completed action, suit, or proceeding, if the officer or director (i) is not liable pursuant to NRS 78.138, or (ii) acted in good faith and in a manner the officer or director reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonable cause to believe the conduct of the officer or director was unlawful. Section 78.7502 of the NRS also precludes indemnification by the corporation if the officer or director has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court determines that in view of all the circumstances, the person is fairly and reasonably entitled to indemnity for such expenses and requires a corporation to indemnify its officers and directors if they have been successful on the merits or otherwise in defense of any claim, issue, or matter resulting from their service as a director or officer.
Section 78.751 of the NRS permits a Nevada company to indemnify its officers and directors against expenses incurred by them in defending a civil or criminal action, suit, or proceeding as they are incurred and in advance of final disposition thereof, upon determination by the stockholders, the disinterested board members, or by independent legal counsel. Section 78.751 of NRS requires a corporation to advance expenses as incurred upon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of competent jurisdiction that such officer or director is not entitled to be indemnified by the company if so provided in the corporation’s articles of incorporation, bylaws, or other agreement. Section 78.751 of the NRS further permits the company to grant its directors and officer’s additional rights of indemnification under its articles of incorporation, bylaws, or other agreement.
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Section 78.752 of the NRS provides that a Nevada company may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee, or agent of the company, or is or was serving at the request of the company as a director, officer, employee, or agent of another company, partnership, joint venture, trust, or other enterprise, for any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee, or agent, or arising out of his status as such, whether or not the company has the authority to indemnify him against such liability and expenses.
The foregoing discussion of indemnification merely summarizes certain aspects of indemnification provisions and is limited by reference to the above discussed sections of the NRS.
Our articles of incorporation, as amended, implement the indemnification provisions permitted by Chapter 78 of the NRS by providing that we shall indemnify our directors and officers to the fullest extent permitted by the NRS against expense, liability, and loss reasonably incurred or suffered by them in connection with their service as an officer or director. Our articles of incorporation, as amended, provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by us as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that he is not entitled to be indemnified by us. Insofar as indemnification by our company for liabilities arising under the Securities Act may be permitted to officers and directors of our company pursuant to the foregoing provisions or otherwise, we are aware that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
We may purchase and maintain liability insurance, or make other arrangements for such obligations or otherwise, to the extent permitted by the NRS.
At the present time, there is no pending litigation or proceeding involving a director, officer, employee, or other agent of ours in which indemnification would be required or permitted. We are not aware of any threatened litigation or proceeding that may result in a claim for such indemnification.
Item 15. Recent Sales of Unregistered Securities
The following is a summary of transactions by us within the past three years involving sales or our securities that were not registered under the Securities Act. Numbers of shares and exercise prices have been adjusted to reflect the Reverse Stock Split.
During the year ended December 31, 2016, the Company issued a net total of 355,664 (3,556,635 pre-reverse split) shares of common stock as follows:
| (a) | On January 12, 2016, the Company issued 250 (2,500 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,000 shares of Series A preferred stock. |
| (b) | On January 12, 2016, the Company issued 18,347 (183,468 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 73,387 shares of Series C preferred stock. |
| (c) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series D preferred stock. |
| (d) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 1,999,998 shares of Series F preferred stock. |
| (e) | On January 12, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock pursuant to conversions of an aggregate of 2,000,000 shares of Series G preferred stock. |
| (f) | On April 27, 2016, the Company issued 10,000 (100,000 pre-reverse split) shares of common stock to Lt. Gen. Michael T. Flynn, a newly appointed director. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. General Flynn forfeited 6,667 (66,667 pre-reverse split) unvested shares and disclaimed 3,333 (33,333 pre-reverse split) vested shares. |
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| (g) | On April 27, 2016, the Company issued an aggregate of 115,000 (1,150,000 pre-reverse split) shares of common stock to Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, and Kevin Hess pursuant to stock award agreements. |
| (h) | On May 2, 2016, the Company issued 15,000 (150,000 pre-reverse split) shares of common stock to Strategic Advisory Board members, Dr. Philip Frost and Steven Rubin, for 12 months of services. |
| (i) | On June 3, 2016, the Company issued 5,000 (50,000 pre-reverse split) shares of common stock to Adaptive Flight Inc (AFI) due to the triggering of a ‘make whole’ provision in the value of escrowed shares. |
| (j) | On September 26, 2016, the Company issued 133,900 (1,339,000 pre-reverse split) shares of restricted common stock to employees Jay Nussbaum, Felicia Hess, Daniyel Erdberg, Kendall Carpenter, Mike Silverman and Lt. Gen. Michael Flynn pursuant to stock award agreements. Lt. Gen. Flynn resigned as a director on December 31, 2016 due to his appointment as National Security Advisor to President Donald Trump. Lt. Gen. Flynn forfeited 2,500 (25,000 pre-reverse split) unvested shares. |
| (k) | On September 26, 2016, the Company issued 3,500 (35,000 pre-reverse split) shares of common stock to Reginald Brown pursuant to stock award agreement for consulting services. |
| (l) | On September 26, 2016, the Company issued 2,500 (25,000 pre-reverse split) shares of common stock to a member of the Strategic Advisory Board. |
| (m) | On September 29, 2016, the Company issued 49,667 (496,667 pre-reverse split) shares of common stock to twelve investors, including 40,667 (406,666 pre-reverse split) shares to four affiliate investors. These investors purchased stock at $50.00 ($5.00 pre-reverse split) per share and under the purchase agreement received twelve months of price protection. The Convertible Promissory Notes Series 2016 due October 1, 2017 included a $30.00 ($3.00 pre-reverse split) per share conversion factor, thereby triggering the price protection feature. |
During the year ended December 31, 2016, the Company granted 6,500 (65,000 pre-reverse split) common stock options to employees for service provided with exercise prices between $29.10 ($2.91 pre-reverse split) and $37.70 ($3.77 pre-reverse split).
During the year ended December 31, 2016, the Company granted 6,000 (60,000 pre-reverse split) common stock warrants to consultants for service provided with an exercise price of $29.10 ($2.91 pre-reverse split).
During the year ended December 31, 2017, the Company issued a total of 50,025 (500,250 pre-reverse split) shares of common stock as follows:
| (a) | On April 24, 2017, the holder of Series A preferred stock converted a total of 100,100 shares of Series A for an aggregate of 25,025 (250,250 pre-reverse split) shares of restricted common stock in accordance with their conversion rights which includes a blocker with respect to individual ownership percentages. |
| (b) | On August 3, 2017, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from May 1, 2017 until April 30, 2018. |
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During the year ended December 31, 2017, the Company issued a total of 751,000 (7,510,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On January 9, 2017, the Company issued an option to a director to purchase 10,000 (100,000 pre-reverse split) shares of common stock with an exercise price of $29.00 ($2.90 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued options to purchase an aggregate of 521,000 (5,210,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to officers, directors and employees for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued options to purchase an aggregate of 200,000 (2,000,000 pre-reverse split) shares of its common stock outside its 2015 Equity Plan to officers and directors, and for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
| (d) | On December 13, 2017, the Company issued options to purchase an aggregate of 20,000 (200,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
During the year ended December 31, 2017, the Company issued a total of 205,000 (2,050,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On August 3, 2017, the Company issued warrants to purchase an aggregate of 3,000 (30,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (b) | On August 3, 2017, the Company issued a warrant to purchase 200,000 (2,000,000 pre-reverse split) shares of the Company’s common stock to Dr. Philip Frost for services to be provided under the terms of his service to the Strategic Advisory Board through April 2018 with an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
| (c) | On November 9, 2017, the Company issued a warrant to purchase 2,000 (20,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to consultants for services provided with an exercise price of $13.50 ($1.35 pre-reverse split) per share. |
During the year ended December 31, 2018, the Company issued a total of 1,445,816 (14,458,151 pre-reverse split) shares of common stock as follows:
| (a) | On October 25, 2018, the Company issued 25,000 (250,000 pre-reverse split) shares of restricted common stock to two members of the Strategic Advisory Board as compensation for their extended service agreement from November 1, 2018 until October 31, 2019. |
| (b) | On October 24, 2018, the Company commenced an offering of up to 1,000,000 (10,000,000 pre-reverse split) shares of its common stock (the “Offered Shares”) in a private placement of up to $5,500,000 to certain accredited investors at a purchase price of $5.50 ($0.55 pre-reverse split) per share pursuant to a Stock Purchase Agreement (the “SPA”). Closing of the offering pursuant to the SPA is conditioned upon certain, limited customary representations and warranties, as well as the Company having received an aggregate of $4,000,000 in new orders from a prime government contractor or directly from the U.S. government at any time commencing after October 9, 2018 (the “Qualifying Sales Order”). As required under the SPA, upon receipt by the Company of a Qualifying Sales Order, the Company will give written notice to the investors notifying them that the Company intends to close on the purchase of the Offered Shares pursuant to the SPA. Within three days after the delivery of the notice to the investors, the Company and the investors will then close under the SPA and at closing, the Company will issue to each purchasing investor the number of shares subscribed for by each Investor. |
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| (c) | On December 21, 2018, the Board approved an Amended and Restated Stock Purchase Agreement (the “Amended SPA”) relating to the Offered Shares to reduce the purchase price in the Offering to $5.00 ($0.50 pre-reverse split) per share, reduce the maximum offering amount from $5,500,000 to $5,000,000, extend the initial closing date of the Offering to January 15, 2019 and permit sales of the Common Stock for a period of 30 days after the initial closing in order to attract a greater number of investors. In addition, the Amended and Restated Stock Purchase Agreement revised the definition of the event triggering the initial closing date to the date when the Company enters into an agreement with a prime government contractor at any time commencing after October 8, 2018 whereby the Company agrees to provide a minimum of $4,000,000 in goods and services to such contractor. |
| (d) | On December 21, 2018, the Company issued 617,742 (6,177,411 pre-reverse split) shares of common stock pursuant to conversion of the 2016 convertible notes payable and 403,074 (4,030,740 pre-reverse split) shares of common stock pursuant to conversion of the 2017 convertible note payable. |
| (a) | On December 27, 2018, the Company completed the sale of 400,000 (4,000,000 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,000,000. On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, which was repaid on February 8, 2019 including $575 in accrued interest, (3) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Dan Erdberg, the Company’s CEO and President, in the amount of $50,000 which was cancelled on April 30, 2019 pursuant to Stock Redemption and Note Cancellation Agreements, and (4) a full-recourse promissory note payable with a maturity date of January 25, 2020 by Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, in the amount of $25,000 which was reduced by $7,500 in January 2019, leaving a principal balance of $17,500 which was repaid in full on April 30, 2019, including $134 in accrued interest. Each note bore an interest rate at a fixed rate of 3% per annum and principal and interest under the notes could be prepaid at any time without penalty. (5) On September 4, 2019, the Company redeemed 10,000 (100,000 pre-reverse split) shares of its common stock, which are now Treasury Stock, pursuant to a Redemption Agreement at $5.00 ($0.50 pre-reverse split) per share for an aggregate of $50,000 which were issued to Robert Guerra, the Company’s former director. |
During the year ended December 31, 2018, the Company issued a net total of 656,000 (6,560,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 28, 2018, the Company issued options to purchase an aggregate of 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a newly-appointed directors with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (b) | On May 16, 2018, the Company issued options to purchase an aggregate of 46,000 (460,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to four employees with an exercise price of $10.00 ($1.00 pre-reverse split). |
| (c) | On August 22, 2018, the Company granted options to purchase an aggregate of 500,000 (5,000,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $10.00 ($1.00 pre-reverse split) per share. On September 26, 2018, the Board resolved to cancel these options which had not vested. |
| (d) | On September 26, 2018, the Company granted options to purchase an aggregate of 600,000 (6,000,000 pre-reverse split) shares of Company common stock outside its 2015 Equity Plan to five management employees and four directors at an exercise price of $6.50 ($0.65 pre-reverse split) per share. |
During the year ended December 31, 2018, the Company issued a total of 10,000 (100,000 pre-reverse split) warrants to purchase common stock as follows:
| (a) | On September 26, 2018, the Company issued a warrant to purchase 10,000 (100,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to Global Security Innovative Strategies, LLC for services at an exercise price of $10.00 ($1.00 pre-reverse split) per share. |
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During the six months ended June 30, 2019, the Company issued a total of 401,550 (4,015,500 pre-reverse split) shares of common stock as follows:
| (a) | On January 25, 2019, the Company completed the sale of 401,550 (4,015,500 pre-reverse split) shares of its common stock pursuant to the Amended SPA at a purchase price of $5.00 ($0.50 pre-reverse split) per share, for an aggregate purchase price of $2,007,750. The aggregate consideration consisted of (1) cash in the aggregate amount of $1,432,750, (2) a promissory note from a single non-affiliate investor in the aggregate principal amount of $500,000, (3) a full-recourse promissory note payable by Dan Erdberg in the amount of $50,000 and (4) a full-recourse promissory note payable by Kendall Carpenter in the amount of $25,000. The principal amount of the Carpenter note was reduced by $7,500 on January 28, 2019 leaving a principal balance of $17,500. On April 30, 2019, Kendall Carpenter, the Company’s Executive Vice President and Chief Financial Officer, repaid the entire principal balance of the $17,500 note described above in Footnote #8 to the June 30, 2019 unaudited financial statements, including $134 in accrued interest. On April 30, 2019, Daniyel Erdberg, the Company’s CEO and President, entered into a Stock Redemption and Note Cancellation Agreement whereby the Company redeemed 10,000 (100,000 pre-reverse split) shares of common stock paid pursuant to the note described above in Footnote #8 to the June 30, 2019 unaudited financial statements and cancelled the $50,000 note and the related $267 in accrued interest. |
During the six months ended June 30, 2019, the Company issued a net total of 13,000 (130,000 pre-reverse split) options to purchase common stock as follows:
| (a) | On March 20, 2019, the Company issued options to purchase an aggregate of 13,000 (130,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to two employees for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share. |
During the six months ended June 30, 2019, the Company issued a net total of 5,000 (50,000 pre-reverse split) warrants to purchase common stock as follows:
On March 20, 2019, the Company issued a warrant to purchase 5,000 (50,000 pre-reverse split) shares of the Company’s common stock outside its 2015 Equity Plan to a contractor for services provided with an exercise price of $10.60 ($1.06 pre-reverse split) per share.
The sales of the above securities were exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities Act, Regulation D promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed on the stock certificates issued in these transactions.
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Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
The following exhibits are filed as part of this registration statement on Form S-1:
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| * | Indicates management contract or compensatory plan or arrangement. |
(b) Financial Statement Schedules.
None.
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Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act “may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
| (a) | Rule 415 Offering. The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (i) | The undersigned Registrant hereby undertakes that it will: |
| a. | for determining any liability under the Securities Act of 1933, treat the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant under Rule 424(b)(1), or (4) or 497(h) under the Securities Act of 1933 as part of this registration statement as of the time the Commission declared it effective. |
| b. | for determining any liability under the Securities Act of 1933, treat each post-effective amendment that contains a form of prospectus as a new registration statement for the securities offered in the registration statement, and that offering of the securities at that time as the initial bona fide offering of those securities. |
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Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 1 to Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jacksonville, State of Florida, on October 11, 2019.
| Drone Aviation Holding Corp. | ||
| By: | /s/ Daniyel Erdberg | |
| Daniyel Erdberg | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniyel Erdberg as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorneys-in-fact and agents, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to Registration Statement on Form S-1 has been signed by the following persons in the capacities indicated on October 11, 2019.
| Name | Title | |
| /s/ Daniyel Erdberg | Chief Executive Officer, President and Director | |
| Daniyel Erdberg | (Principal Executive Officer) | |
| /s/ Kendall Carpenter | Chief Financial Officer | |
| Kendall Carpenter | (Principal Financial Officer and Principal Accounting Officer) | |
| /s/ David Aguilar | Chairman of the Board and Director | |
| David Aguilar | ||
| /s/ John E. Miller | Director | |
| John E. Miller | ||
| /s/ Timothy Hoechst | Director | |
| Timothy Hoechst |
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