UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

(Mark One)

 

[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended: March 31, 2021

 

or

 

[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT

 

For the transition period from __________ to __________

 

Commission file number 33-20111

 

SPYR, INC.
(Exact name of registrant as specified in its charter)

 

Nevada   75-2636283
(State or other jurisdiction of incorporation or organization)   (IRS Employer Identification No.)

 

8547 E Arapahoe Rd STE J527, Greenwood Village, CO 80112

(Address of principal executive offices)

 

(303) 991-8000

(Registrant's telephone number)

 

Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the issuer was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days

☒ Yes ☐ No

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

☒ Yes ☐ No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and" smaller reporting 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 pursuant to Section 13(a) of the Exchange Act. ☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes ☒ No

 

APPLICABLE ONLY TO CORPORATE ISSUERS

 

As of May 14, 2021 there were 214,537,631 shares of the Registrant's common stock.

  1  
 

TABLE OF CONTENTS

 

 

Part 1 Financial Information 3
     
Item 1. Financial Statements (Unaudited) 3
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 18
Item 3. Quantitative and Qualitative Disclosures About Market Risk 22
Item 4. Controls and Procedures 22
     
Part II Other Information 23
     
Item 1. Legal Proceedings 23
Item 1a. Risk Factors 24
Item 2. Unregistered Sale of Equity Securities and Use of Proceeds 24
Item 3. Defaults of Senior Securities 24
Item 4. Mine Safety Disclosures 24
Item 5. Other Information 24
Item 6. Exhibits 25
  2  
 

PART I - FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

 

SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
         
     

March 31,

2021

     

December 31,

2020

 
ASSETS                
Current Assets:                
Cash and cash equivalents   $ 222,000     $ 510,000  
Other receivables     —         4,000  
Prepaid expenses     78,000       49,000  
Inventory     25,000       —    
Trading securities, at market value     2,000       1,000  
Current assets of discontinued operations     13,000       13,000  
Total Current Assets     340,000       577,000  
                 
Property and equipment, net     25,000       31,000  
Intangible assets, net     2,000       3,000  
Operating lease right-of-use asset     13,000       28,000  
Other assets     14,000       13,000  
Non-current assets of discontinued operations     75,000       75,000  
TOTAL ASSETS   $ 469,000     $ 727,000  
                 
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)                
LIABILITIES                
Current Liabilities:                
Accounts payable and accrued liabilities   $ 1,680,000     $ 1,561,000  
Related party short-term advances     1,202,000       1,184,000  
Related party line of credit     1,222,000       1,204,000  
SBA PPP Note Payable, current portion     59,000       51,000  
Operating lease liability - current portion     22,000       54,000  
Current liabilities of discontinued operations     779,000       767,000  
Total Current Liabilities     4,964,000       4,821,000  
                 
SBA PPP Note Payable     86,000       20,000  
Long-term convertible notes payable, net     118,000       64,000  
Derivative liability     1,486,000       1,382,000  
Total Liabilities     6,654,000       6,287,000  
                 
COMMITMENTS AND CONTINGENCIES                
                 
STOCKHOLDERS’ EQUITY (DEFICIT)                
Preferred stock, $0.0001 par value, 10,000,000 shares authorized                
107,636 Class A shares issued and outstanding as of                
 March 31, 2021 and December 31, 2020     11       11  
20,000 Class E shares issued and outstanding as of                
  March 31, 2021 and December 31, 2020     2       2  
Common stock, $0.0001 par value, 750,000,000 shares authorized                
214,537,631 and 210,137,631 shares issued and outstanding as of March 31, 2021 and December 31, 2020     21,454       21,014  
Additional paid-in capital     55,977,533       55,391,973  
Accumulated deficit     (62,184,000 )     (60,973,000 )
Total Stockholders’ Equity (Deficit)     (6,185,000 )     (5,560,000 )
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)   $ 469,000     $ 727,000  
                 
The accompanying notes are an integral part of these condensed consolidated financial statements.

 

  3  
 
SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
         
    For the Three Months Ended March 31,
    2021   2020
         
Related party service revenues   $ —       $ 185,000  
Gross Margin     —         185,000  
                 
Expenses                
Labor and related expenses     489,000       177,000  
Rent     28,000       37,000  
Depreciation and amortization     3,000       10,000  
Professional fees     429,000       42,000  
Research and development     4,000       —    
Other general and administrative     46,000       62,000  
Total Operating Expenses     999,000       328,000  
Operating Loss     (999,000 )     (143,000 )
                 
Other Income (Expense)                
Interest Expense     (102,000 )     (45,000 )
Gain on disposition of assets     5,000       —    
Change in value of derivative liability     (104,000 )     —    
Unrealized gain (loss) on trading securities     1,000       (1,000 )
Total Other Expense     (200,000 )     (46,000 )
                 
Loss from continuing operations     (1,199,000 )     (189,000 )
Loss from discontinued operations     (12,000 )     (38,000 )
Net Loss   $ (1,211,000 )   $ (227,000 )
                 
Per Share Amounts                
Loss from continuing operations                
Basic and Diluted earnings per share   $ (0.01 )   $ (0.00 )
                 
Loss from discontinued operations                
Basic and Diluted earnings per share   $ (0.00 )   $ (0.00 )
                 
Net Loss                
Basic and Diluted earnings per share   $ (0.01 )   $ (0.00 )
                 
Weighted Average Common Shares                
Basic and Diluted     213,258,187       201,690,571  
                 
The accompanying notes are an integral part of these condensed consolidated financial statements.

 

  4  
 
SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
For the Three Months Ended March 31, 2021
(Unaudited)
                                     
    Preferred Stock           Additional        
    Class A   Class E   Common Stock   Paid-in   Accumulated    
    Shares   Amount   Shares   Amount   Shares   Amount   Capital   Deficit   Total
Balance at December 31, 2020     107,636     $ 11       20,000     $ 2       210,137,631     $ 21,014     $ 55,391,973     $ (60,973,000 )   $ (5,560,000 )
Fair value of restricted common stock and options issued for employee and director compensation     —         —         —         —         1,400,000       140       214,860       —         215,000  
Fair value of S-8 registered common stock issued for services     —         —         —         —         3,000,000       300       370,700       —         371,000  
Net loss     —         —         —         —         —         —         —         (1,211,000 )     (1,211,000 )
Balance at March 31, 2021     107,636     $ 11       20,000     $ 2       214,537,631     $ 21,454     $ 55,977,533     $ (62,184,000 )   $ (6,185,000 )
                                                                         
The accompanying notes are an integral part of these condensed consolidated financial statements.

  

SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
For the Three Months Ended March 31, 2020
(Unaudited)
                                     
    Preferred Stock           Additional        
    Class A   Class E   Common Stock   Paid-in   Accumulated    
    Shares   Amount   Shares   Amount   Shares   Amount   Capital   Deficit   Total
Balance at December 31, 2019     107,636     $ 11       20,000     $ 2       200,880,131     $ 20,088     $ 53,509,899     $ (57,916,000 )   $ (4,386,000 )
Fair value of common stock issued for employee compensation     —         —         —         —         1,250,000       125       24,875       —         25,000  
Net loss     —         —         —         —         —         —         —         (227,000 )     (227,000 )
Balance at March 31, 2020     107,636     $ 11       20,000     $ 2       202,130,131     $ 20,213     $ 53,534,774     $ (58,143,000 )   $ (4,588,000 )
                                                                         
The accompanying notes are an integral part of these condensed consolidated financial statements.

  5  
 
SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
         
    For the Three Months Ended March 31,
    2021   2020
Cash Flows From Operating Activities:                
Net loss   $ (1,211,000 )   $ (227,000 )
Adjustments to reconcile net loss to net cash used in operating activities:                
Loss on discontinued operations     12,000       38,000  
Depreciation and amortization     3,000       10,000  
Common stock issued for employee compensation     215,000       25,000  
Common stock issued for services     371,000       —    
Amortization of debt discounts on convertible notes payable     34,000       —    
Gain on disposition of assets     (5,000 )     —    
Change in Value of derivative liability     104,000       —    
Unrealized loss on trading securities     (1,000 )     1,000  
Changes in operating assets and liabilities:                
(Increase) Decrease in accounts receivables     —         (1,000 )
(Increase) Decrease in receivable from related parties     —         50,000  
Increase in other receivables     4,000       —    
(Increase) Decrease in prepaid expenses     (29,000 )     —    
Increase in inventory     (25,000 )     —    
Increase in other assets     (1,000 )     —    
Increase in accounts payable and accrued liabilities     119,000       40,000  
Decrease in operating lease right-of-use liability     (16,000 )     (3,000 )
Increase in accrued interest on short-term advances - related party     18,000       17,000  
Increase in accrued interest on line of credit - related party     18,000       17,000  
Increase in accrued interest on SBA PPP notes payable     1,000       —    
Increase in accrued interest and liquidated damages on convertible notes     20,000       10,000  
Net cash used in operating activities from continuing operations     (369,000 )     (23,000 )
Net cash provided by operating activities from discontinued operations     —         28,000  
Net cash provided by (used in) Operating Activities     (369,000 )     5,000  
                 
Cash Flows From Investing Activities:                
Purchase of property and equipment     —         (5,000 )
Sale of property and equipment     8,000       1,000  
Net cash provided by (used in) Investing Activities     8,000       (4,000 )
                 
Cash Flows From Financing Activities:                
Proceeds from SBA PPP note payable     73,000       —    
Net cash provided by Financing Activities     73,000       —    
                 
Net increase (decrease) in Cash     (288,000 )     1,000  
Cash and cash equivalents at beginning of period     510,000       10,000  
Cash and cash equivalents at end of period   $ 222,000     $ 11,000  
                 
Supplemental Disclosure of Interest and Income Taxes Paid:                
Interest paid during the period   $ —       $ 1,000  
Income taxes paid during the period   $ —       $ —    
                 
The accompanying notes are an integral part of these condensed consolidated financial statements.

  6  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

NOTE 1 - ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Interim Financial Statements

 

The accompanying condensed consolidated financial statements of SPYR, Inc. and subsidiaries (the “Company”) are unaudited. These unaudited interim condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and applicable rules and regulations of the Securities and Exchange Commission (“SEC”) regarding interim financial reporting. Certain information and note disclosures normally included in the financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. Accordingly, these interim condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed with the SEC. The condensed consolidated balance sheet as of December 31, 2020 included herein was derived from the audited consolidated financial statements as of that date, but does not include all disclosures, including notes, required by GAAP.

 

In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments necessary to fairly present the Company's financial position and results of operations for the interim periods reflected. Except as noted, all adjustments contained herein are of a normal recurring nature. Results of operations for the fiscal periods presented herein are not necessarily indicative of fiscal year-end results.

 

Principles of Consolidation

 

The consolidated financial statements include the accounts of SPYR, Inc. and its wholly owned subsidiaries, Applied Magix, a Nevada corporation, SPYR APPS, LLC, a Nevada Limited Liability Company (discontinued operations, see Note 8), E.A.J.: PHL, Airport Inc., a Pennsylvania corporation (discontinued operations, see Note 8), and Branded Foods Concepts, Inc., a Nevada corporation (dissolution pending). Intercompany accounts and transactions have been eliminated.

 

Reclassifications

 

Certain reclassifications have been made in the 2020 financial statements to conform with the 2021 presentation related to the discontinued operations of SPYR APPS, LLC. See Note 8 Discontinued Operations for additional information.

 

Going Concern

 

The accompanying financial statements have been prepared under the assumption that the Company will continue as a going concern. Such assumption contemplates the realization of assets and satisfaction of liabilities in the normal course of business, however, the issues described below raise substantial doubt about the Company’s ability to do so.

 

As shown in the accompanying financial statements, for the three months ended March 31, 2021, the Company recorded a net loss from continuing operations of $1,211,000 and utilized cash in operations of $369,000. As of March 31, 2021, our cash balance was $222,000, and we had trading securities valued at $2,000. These issues raise substantial doubt about the Company’s ability to continue as a going concern.

 

The Company intends to utilize cash on hand, shareholder loans and other forms of financing such as the sale of additional equity and debt securities, capital leases and other credit facilities to conduct its ongoing business, and to also conduct strategic business development, marketing analysis, due diligence investigations into possible acquisitions, and implementation of our Applied Magix business plans generally. The Company also plans to diversify, through acquisition or otherwise, in other unrelated business areas and is exploring opportunities to do so.

 

Historically, we have financed our operations primarily through sales of our common stock and debt financing. The Company will continue to seek additional capital through the sale of its common stock, debt financing and through expansion of its existing and new products. If our financing goals for our products do not materialize as planned and if we are not able to achieve profitable operations at some point in the future, we may have insufficient working capital to maintain our operations as we presently intend to conduct them or to fund our expansion, marketing, and product development plans.

  7  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

The ability of the Company to continue as a going concern is dependent upon the success of future capital offerings or alternative financing arrangements and expansion of its operations. The accompanying financial statements do not include any adjustments that might be necessary should the Company be unable to continue as a going concern. Management is actively pursuing additional sources of financing sufficient to generate enough cash flow to fund its operations through calendar year 2021. However, management cannot make any assurances that such financing will be secured.

 

Use of Estimates

 

The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Estimates and assumptions used by management affected impairment analysis for trading securities, fixed assets, intangible assets, capitalized licensing rights, amounts of potential liabilities, and valuation of issuance of equity securities. Actual results could differ from those estimates.

 

Earnings (Loss) Per Share

 

The basic and fully diluted shares for the three months ended March 31, 2021 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 570,190, Options – 5,379,900, Warrants – 8,700,000) would have had an anti-dilutive effect due to the Company generating a loss for the three months ended March 31, 2021.

 

The basic and fully diluted shares for the three months ended March 31, 2020 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 5,364,807, Options – 9,149,900, Warrants – 9,000,000) would have had an anti-dilutive effect due to the Company generating a loss for the three months ended March 31, 2020.

 

Product Research and Development Costs

 

Costs incurred for product research and development are expensed as incurred. During the three months ended March 31, 2021 and 2020, the Company incurred $4,000 and $0 in product development costs paid to independent third parties.

 

Cash and Cash Equivalents

 

The Company considers all highly liquid debt instruments purchased with a maturity of three months or less to be cash equivalents to the extent the funds are not being held for investment purposes.

 

Inventory

 

The Company's inventory consisting of Apple HomeKit products for resale by the Company, is recorded at the lower of cost (first-in, first-out) or net realizable value. The Company writes down its inventory balances for estimates of excess and obsolete amounts. The Company reduces inventory on hand to its net realizable value on an item-by-item basis when the expected realizable value of a specific inventory item falls below its original cost. Management regularly reviews the Company’s investment in inventories for such declines in value. The write-downs are recognized as a component of cost of sales. During the three months ended March 31, 2021 and 2020, there were no inventory write downs. As of March 31, 2021, the inventory was valued at $25,000.

 

Stock-Based Compensation

 

The Company periodically issues stock options and warrants to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for stock option and warrant grants issued and vesting to employees based on the authoritative guidance provided by the Financial Accounting Standards Board (FASB) whereas the value of the award is measured on the date of grant and recognized over the vesting period. The Company accounts for stock option and warrant grants issued and vesting to non-employees in accordance with the authoritative guidance of the FASB whereas the value of the stock compensation is based upon the measurement date as determined at either a) the date at which a performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete. Non-employee stock-based compensation charges generally are amortized over the vesting period on a straight-line basis. In certain circumstances where there are no future performance requirements by the non-employee, option grants are immediately vested, and the total stock-based compensation charge is recorded in the period of the measurement date.

  8  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

The fair value of the Company's stock option and warrant grants is estimated using the Black-Scholes Option Pricing model, which uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the stock options or warrants, and future dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes Option Pricing model and based on actual experience. The assumptions used in the Black-Scholes Option Pricing model could materially affect compensation expense recorded in future periods.

 

The Company also issues restricted shares of its common stock for share-based compensation programs to employees and non-employees. The Company measures the compensation cost with respect to restricted shares to employees based upon the estimated fair value at the date of the grant and is recognized as expense over the period which an employee is required to provide services in exchange for the award. For non-employees, the Company measures the compensation cost with respect to restricted shares based upon the estimated fair value at measurement date which is either a) the date at which a performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete.

 

Derivative Financial Instruments

 

The Company evaluates all of its agreements to determine if such instruments have 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, the Company uses the Black-Scholes Option Pricing model 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. As of March 31, 2021, the Company's only derivative financial instruments were embedded conversion features associated with long-term convertible notes payable which contain certain provisions that allow for a variable number of shares on conversion.

 

Concentration of Credit Risk

 

The Company has no significant off-balance-sheet concentrations of credit risk such as foreign exchange contracts, options contracts, or other foreign hedging arrangements. The Company maintains the majority of its cash balances with financial institutions, in the form of demand deposits. The Company believes that no significant concentration of credit risk exists with respect to these cash balances because of its assessment of the creditworthiness and financial viability of this financial institution.

 

Advertising Costs

 

Advertising, marketing, and promotional costs are expensed as incurred and included in general and administrative expenses. Advertising, marketing, and promotional expense was $11,000 and $0 for the three months ended March 31, 2021, and 2020, respectively and was reflected as part of Other General and Administrative Expenses on the accompanying condensed consolidated statements of operations.

 

Recent Accounting Standards

 

In June 2016, the FASB issued Accounting Standards Update (“ASU”) 2016-13, “Financial Instruments – Credit Losses.” This ASU sets forth a current expected credit loss model which requires the Company to measure all expected credit losses for financial instruments held at the reporting date based on historical experience, current conditions, and reasonable supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized cost and applies to some off-balance sheet credit exposures. In November 2019, the effective date of this ASU was deferred until fiscal years beginning after December 15, 2022, including interim periods within those fiscal years, with early adoption permitted. The Company is in the process of determining the potential impact of adopting this guidance on its consolidated financial statements.

  9  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

Other recent accounting pronouncements issued by the FASB, including its Emerging Issues Task Force, the American Institute of Certified Public Accountants, and the Securities and Exchange Commission did not or are not believed by management to have a material impact on the Company's present or future consolidated financial statements.

 

NOTE 2 - RELATED PARTY TRANSACTIONS

 

On September 5, 2017, the Company obtained a revolving line of credit from Berkshire Capital Management Co., Inc. which is controlled by the Company’s former chairman of the board. The line of credit allows the Company to borrow up to $1,000,000 with interest at 6% per annum. The loan is secured by a first lien on all the assets of the Company and its wholly owned subsidiary SPYR APPS®, LLC. The loan was fully drawn as of February 2018, at which time the Company had borrowed $1,000,000 and accrued interest of approximately $16,000. Repayment on the loan is due December 31, 2021. As of March 31, 2021, the balance due with accrued interest was approximately $1,222,000.

 

During 2018 and 2019, the Company has received an additional $1,062,000 in the form of short-term advances from Berkshire Capital Management Co., Inc. The last advance occurred on September 30, 2019; at which time the Company had borrowed $1,062,000. No further advances are expected from Berkshire Capital Management Co., Inc. The Company has accrued interest on these short-term advances at 6% per annum. The short-term advances are due upon demand. As of March 31, 2021, the balance due with accrued interest was approximately $1,202,000.

 

During the three months ended March 31, 2020, the Company, received $185,000 in revenue for professional services rendered to Berkshire Capital Management Co., Inc. Subsequent to March 31, 2020, the Company has not and does not anticipate that it will provide any further professional services to related parties.

 

NOTE 3 – SMALL BUSINESS ADMINISTRATION DEBT

 

On May 12, 2020, the Company received a Paycheck Protection Program loan from the U.S. Small Business Administration (SBA) in the approximate amount of $71,000. The loan agreement provides for six months principal and interest deferral. The interest rate is 1%. Under the terms of the loan, up to 100% of the loan may be forgiven conditioned upon meeting certain requirements for the use of funds. On February 2, 2021, the Company submitted its application to the SBA for forgiveness, which is pending as of the date of this filing. Any amount not forgiven must be repaid in equal monthly payments of principal and interest beginning in October 2021. As of March 31, 2021, the balance due on this note with accrued interest was approximately $72,000.

 

On January 21, 2021, the Company received a second Paycheck Protection Program loan from the U.S. Small Business Administration in the approximate amount of $73,000. The interest rate is 1%. Under the terms of the loan, up to 100% of the loan may be forgiven conditioned upon meeting certain requirements for the use of funds. Any amount not forgiven must be repaid in equal monthly payments of principal and interest beginning in May 2022. As of March 31, 2021, the balance due on this note was approximately $73,000.

 

NOTE 4 – CONVERTIBLE NOTES

 

On September 30, 2020, the Company entered into a Stock Purchase Agreement with a third-party investor. By virtue of the Stock Purchase Agreement, in two separate closings, the Company agreed to sell, in each closing, an 8% $500,000 Convertible Promissory Note and Warrant to purchase one million common shares. Each Convertible Promissory Note bears 8% interest and matures five year after issuance. Amounts due under the Convertible Promissory Note are convertible into the Registrant’s common stock at the lower of $0.25 per share or 70% of the average of the three lowest Variable Weighted Average Price (“VWAP”) for the Registrant’s common stock for the twenty trading days prior to an election to convert. The Warrants are exercisable for five-years at an exercise price of $0.25 per share or, subject to the Registrant filing a registration statement including the shares of common stock that may be issued upon exercise of the Warrant, in a cashless exercise. The first closing occurred October 5, 2020 upon the receipt by the Company of a check for $500,000. The Company received two payments in the amount of $250,000 each on November 20, 2020 and November 24, 2020 in connection with the second closing. Total proceeds from the issuance of these convertible notes payable was $1,000,000. The Company determined that the conversion features of these notes represented embedded derivatives since the notes are convertible into a variable number of shares upon conversion. The conversion features were valued at $1,514,000 at the time of closing and the Company recognized a derivative liability of $1,514,000 with corresponding debt discounts of $1,000,000 and a loss on issuance of long-term convertible notes payable of $514,000. The company recorded amortization of debt discounts, recognized as interest expense, in the amount of $34,000 and accrued interest of $20,000 during the three months ended March 31, 2021. On March 31, 2021, the principal balance together with accrued interest is recorded on the Company’s condensed consolidated balance sheet net of discounts at $118,000.

  10  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

The following table summarized the Company's convertible notes payable as of March 31, 2021 and December 31, 2020:

 

   

March 31,

2021

 

December 31,

2020

Beginning Balance   $ 64,000     $ 550,000  
Proceeds from the issuance of convertible notes, net of issuance discounts     —         —    
Repayments     —         (47,000 )
Conversion of notes payable into common stock     —         (548,000 )
Amortization of discounts     34,000       50,000  
Liquidated damages     —         (53,000 )
Debt settlement costs     —         96,000  
Accrued Interest     20,000       16,000  
Convertible notes payable, net   $ 118,000     $ 64,000  
                 
Convertible notes, long-term   $ 1,000,000     $ 1,000,000  
Accrued interest and damages, long-term     34,000       14,000  
Debt discounts, long-term     (916,000 )     (950,000 )
Long-term convertible notes payable, net   $ 118,000     $ 64,000  

 

NOTE 5 - DERIVATIVE LIABILITY

 

The Company determined that the conversion features of the long-term convertible notes payable represented embedded derivatives since the notes are convertible into a variable number of shares upon conversion. Accordingly, the notes are not considered to be conventional debt and the embedded conversion feature is bifurcated from the debt host and accounted for as a derivative liability. Accordingly, the fair value of these derivative instruments is recorded as liabilities on the balance sheet with the corresponding amount recorded as a discount to each note and any excess of the fair value of the derivative component over the face amount of the note recorded as an expense on the date of issuance. Discounts are amortized from the date of issuance to the maturity dates of the notes. Fair value of derivative liabilities is evaluated at the end of each reporting period with any change in value reported in other income or expenses on the statements of operations for the period.

 

The following table represents the Company's derivative liability activity for the three months ended March 31, 2021:

 

   

Three Months Ended

March 31,

    2021
Derivative liability balance, December 31, 2020   $ 1,382,000  
Issuance of derivative liability during the period     —    
Change in derivative liability during the period     104,000  
Derivative liability balance, March 31, 2021   $ 1,486,000  

 

The table below represents the average assumptions used in valuing the derivative liability on March 31, 2021:

 

   

Three Months Ended

March 31,

    2021
Expected life in years     4.52 – 4.65  
Stock price volatility     185.15% - 185.67%  
Risk free interest rate     0.35 %
Expected dividends     —    
Forfeiture rate     —    

  11  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

NOTE 6 – COMMITMENTS AND CONTINGENCIES

 

Equity Line of Credit

 

The Company entered into a five-year Equity Line of Credit pursuant to an Equity Purchase Agreement with Brown Stone Capital, LP, dated September 30, 2020. Pursuant to the agreement, Brown Stone agreed to invest up to $14,000,000 to purchase the Company’s Common Stock, par value $0.0001 per share. The purchase price of the common shares is the lesser of the Fixed price or Market price. The Fixed price is $0.50 per share in years 1 and 2, after the effectiveness of a registration statement, and $1.00 per share in years 3, 4 and 5 after the effectiveness of this registration statement. The Market price is 70% of the three lowest Variable Weighted Average Price (“VWAP”) for the Company’s common stock during the 10-trading day period immediately prior to the conversion date. In addition, the Company and Brown Stone entered into a Registration Rights Agreement, whereby the Company agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, and applicable state securities laws, with respect to the shares of Common Stock issuable for Brown Stone’s investment pursuant to the Equity Purchase Agreement. As of March 31, 2021, no shares have been registered or sold pursuant to this agreement.

 

Operating Leases

 

The Company leased approximately 5,169 square feet at 4643 South Ulster Street, Denver, Colorado pursuant to an amended lease dated May 21, 2015. Under the lease, the Company paid annual base rent on an escalating scale ranging from $143,000 to $152,000. On May 1, 2020 and July 29, 2020, the Company entered into amended lease agreements with its landlord. Under the terms of the amendments, the landlord agreed to waive rent, certain rent adjustments and parking for the period April 1, 2020 through August 31, 2020 and extend the term of the lease by five months. The lease term date, which was December 31, 2020, was changed to May 31, 2021. As of March 31, 2021, the company had approximately $41,000 in unpaid rent which was reported as part of accounts payable and accrued expenses in the accompanying condensed consolidated balance sheet as of March 31, 2021. On April 1, 2021, the Company entered into a lease termination and payment agreement with the landlord, pursuant to which the Company vacated and surrendered the premises to the landlord and the Company will pay approximately $67,000 over 18 months commencing April 1, 2021.

 

Effective March 1, 2021, the Company’s wholly owned subsidiary Applied Magix, entered into a 6-month lease for 2 workspace offices located at 1230 Rosecrans Ave, Manhattan Beach California. Under the lease, the Company pays monthly rent of $1,400.

 

Rent expense for the three months ended March 31, 2021 and 2020 was $26,000 and $37,000, respectively. In addition to the minimum basic rent, rent expense also includes approximately $1,000 per month for other items charged by the landlord in connection with rent.

 

Legal Proceedings

 

We are involved in certain legal proceedings that arise from time to time in the ordinary course of our business. Except for income tax contingencies, we record accruals for contingencies to the extent that our management concludes that the occurrence is probable and that the related amounts of loss can be reasonably estimated. Legal expenses associated with the contingency are expensed as incurred. Information about material legal proceedings follows:

 

Settlements

 

On June 18, 2018, the Company was named as a defendant in a case filed in the United States District Court for the Southern District of New York: Securities and Exchange Commission vs. Joseph A. Fiore, Berkshire Capital Management Co., Inc., and Eat at Joe’s, Ltd. n/k/a SPYR, Inc.(“Defendants”). Joseph A. Fiore was the Chairman of our Board of Directors and is a significant shareholder. Mr. Fiore resigned from his positions as Chairman of the Board and as a Director of the Company effective August 1, 2018. The suit alleged that Mr. Fiore, during 2013 and 2014, while he was the Company’s Chief Executive Officer, Chief Financial Officer and Chairman of the Board of Directors, engaged in improper conduct on behalf of the defendants named in the case related to the Company’s sales of securities in Plandai Biotechnology, Inc. The Commission alleged that Mr. Fiore and the Company unlawfully benefited through the sales of those securities. The Commission also alleged that from 2013 to 2014, the Company’s primary business was investing and that it failed to register as an investment company, resulting in an alleged violation of Section 7(a) of the Investment Company Act of 1940. The suit sought to disgorge Joseph A. Fiore, Berkshire Capital Management Co., Inc., and the Company of alleged profits on the sale of the securities and civil fines related to the Company’s failure to register as an investment company with the Commission.

  12  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

Pursuant to a settlement agreement among the parties, on April 14, 2020, final judgment was entered in the case: Securities and Exchange Commission vs. Joseph A. Fiore, Berkshire Capital Management, Inc. and Eat at Joes, Inc., n/k/a SPYR, Inc., case number 7:18-cv-05474-KMK filed in the U.S. District Court for the Southern District of New York.

 

On April 23, 2020, Joseph Fiore/Berkshire Capital Management, Inc. satisfied the Company’s joint and several liability obligation by paying to the Commission the agreed upon sum of Two Million Dollars pursuant to a settlement agreement between Joseph Fiore/Berkshire Capital Management, Inc. and the Company, which settlement agreement was entered into on April 15, 2020. The Company has until April 14, 2021 to satisfy its remaining financial obligation to the Commission, an agreed upon civil penalty of Five Hundred Thousand Dollars ($500,000). The $500,000, together with accrued interest of $11,000, was reported as part of accounts payable and accrued liabilities on the accompanying condensed consolidated balance sheets as of March 31, 2021.

 

In electing to settle with the Commission, the Company neither admitted nor denied liability to any of the Commission’s allegations in its complaint, and in consideration for the Commission discontinuing its action, the Company, along with the two other defendants Joseph Fiore and Berkshire Capital Management agreed to be jointly and severally liable for disgorgement of profits and prejudgment interest in the amount of two million dollars, and to each be solely liable to pay a civil penalty in the amount of five hundred thousand dollars.[1]

 

Subsequent to March 31, 2021, the Company borrowed $500,000 from a related party to pay its principal settlement liability with the Securities and Exchange Commission and has done so. The Company still owes to the SEC interest on the principal settlement amount in the approximate amount of $11,000 and has requested a final interest calculation from the Securities and Exchange Commission. Upon receipt thereof, the interest will be paid.

 

Judgments

 

On or about January 24, 2019, SPYR APPS, LLC entered into an agreement with one of its vendors, Shatter Storm Studios, to whom it owed $84,250 for artwork related to the Steven Universe game. Pursuant to the terms of that agreement, SPYR APPS, LLC needed to make payment in the amount of $85,000 to cover the principal owed and attorneys’ fees together plus 6% interest in that amount by December 1, 2019. Should SPYR APPS, LLC not make the required payment on or before December 1, 2019, it consented to entry of judgment in favor of Shatter Storm Studios for the amount owed. SPYR APPS, LLC did not make the payment and on January 27, 2020 Shatter Storm Studios initiated Case No. 1:200cv-00217 in the U.S. District Court for the District of Colorado seeking entry of the consent judgment against SPYR APPS, LLC. The judgment was not contested by SPYR APPS, LLC and judgment in the amount of $85,000 plus post judgment interest at the rate of 6% was entered on March 17, 2020. The $85,000 plus accrued interest and attorneys’ fees has been reported as part of accounts payable and accrued liabilities. The balance due as of March 31, 2021 and December 31, 2020 was approximately $96,000 and $94,000, respectively and is reported as part of current liabilities of discontinued operations.

 

Covid-19

 

On January 30, 2020, the World Health Organization declared the coronavirus outbreak a "Public Health Emergency of International Concern" and on March 10, 2020, declared it to be a pandemic. Actions taken around the world to help mitigate the spread of the coronavirus include restrictions on travel, and quarantines in certain areas, and forced closures for certain types of public places and businesses. The coronavirus and actions taken to mitigate it have had and are expected to continue to have an adverse impact on the economies and financial markets of many countries, including the geographical area in which the Company operates. While it is unknown how long these conditions will last and what the complete financial effect will be to the company, the Company is anticipating potential reductions in revenue, labor and supply shortages, difficulty meeting debt covenants, delays in collecting accounts receivable and paying liabilities and changes in the fair value of assets and liabilities. Our concentrations due to major customers and the necessity for fund raising activities make it reasonably possible that we are vulnerable to the risk of a near-term severe impact.

[1] In addition, an injunction was entered against the Company enjoined it from violating the antifraud, market manipulation, beneficial ownership reporting, and other provisions of the federal securities laws charged in the SEC’s complaint.

  13  
 

SPYR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
THREE MONTHS ENDED MARCH 31, 2021 AND 2020
(Unaudited)

Additionally, it is reasonably possible that estimates made in the financial statements have been, or will be, materially and adversely impacted in the near term as a result of these conditions, including potential credit losses on receivables and investments; impairment losses related to capitalized gaming assets and other long-lived assets; and contingent obligations.

 

NOTE 7 – EQUITY TRANSACTIONS

 

Common Stock:

 

Three Months Ended March 31, 2021

 

During the three months ended March 31, 2021, the Company issued an aggregate of 1,400,000 shares of restricted common stock to employees and directors with a total fair value of $215,000 for services rendered. The shares issued are non-refundable and deemed earned upon issuance. As a result, the Company expensed the entire $215,000 upon issuance. The shares issued were valued at the date earned under the respective agreement based upon closing market price of the Company’s common stock.

 

During the three months ended March 31, 2021, the Company issued an aggregate of 3,000,000 shares of registered common stock to third party service providers with a total fair value of $371,000. The shares issued are non-refundable and deemed earned upon issuance. As a result, the Company expensed the entire $371,000 upon issuance. The shares issued were valued at the date earned under the respective agreement based upon closing market price of the Company’s common stock.

 

Three Months Ended March 31, 2020

 

During the three months ended March 31, 2020, the Company issued an aggregate of 1,250,000 shares of restricted common stock to employees with a total fair value of $25,000 for services rendered. The shares issued are non-refundable and deemed earned upon issuance. As a result, the Company expensed the entire $25,000 upon issuance. The shares issued were valued at the date earned under the respective agreement based upon closing market price of the Company’s common stock.

 

Options:

 

The following table summarizes common stock options activity:

        Weighted
        Average
        Exercise
    Options   Price
  December 31, 2020       5,799,900     $ 0.88  
  Granted       —         —    
  Exercised       —         —    
  Expired       (420,000 )     1.00  
  Outstanding, March 31, 2021       5,379,900     $ 0.87  
  Exercisable, March 31, 2021       5,379,900     $ 0.87  

 

  14  
 

SPYR, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
THREE MONTHS ENDED MARCH 31, 2021 AND 2020
(Unaudited)

 

The weighted average exercise prices, remaining lives for options granted, and exercisable as of March 31, 2021 were as follows:

                     
    Outstanding Options       Exercisable Options
Options           Weighted       Weighted
Exercise Price       Life   Average Exercise       Average Exercise
Per Share   Shares   (Years)   Price   Shares   Price
$0.25   1,000,000   0.56   $0.25   1,000,000   $0.25
$0.50   1,300,000   1.05   $0.50   1,300,000   $0.50
$1.00   1,679,900   0.85 – 1.56   $1.00   1,679,900   $1.00
$1.50   1,400,000   2.05   $1.50   1,400,000   $1.50
    5,379,900       $0.87   5,379,900   $0.87

 

On March 31, 2021, the Company’s closing stock price was $0.161 per share. As all outstanding options had an exercise price greater than $0.161 per share, there was no intrinsic value of the options outstanding as of March 31, 2021.

 

Warrants:

 

The following table summarizes common stock warrants activity:

 

        Weighted
        Average
        Exercise
    Warrants   Price
  Outstanding, December 31, 2020       11,100,000     $ 0.39  
  Granted       —         —    
  Exercised       —         —    
  Expired       (2,400,000 )     0.28  
  Outstanding, March 31, 2021       8,700,000     $ 0.42  
  Exercisable, March 31, 2021       8,700,000     $ 0.42  

 

The weighted average exercise prices, remaining lives for warrants granted, and exercisable as of March 31, 2021, were as follows:

 

    Outstanding and Exercisable Warrants  
Warrants          
Exercise Price       Life  
Per Share   Shares   (Years)  
$0.25   4,500,000   0.05 – 4.65  
$0.50   2,700,000   0.16 – 2.28  
$0.75   1,250,000   0.16 – 2.58  
$1.00   250,000   0.16  
    8,700,000      

 

On March 31, 2021, the Company’s closing stock price was $0.161 per share. As all outstanding warrants had an exercise price greater than $0.161 per share, there was no intrinsic value of the warrants outstanding as of March 31, 2021.

 

Shares Reserved:

 

On March 31, 2021, the Company has reserved 80,000,000 shares of common stock in connection with convertible notes with detachable warrants, 100,000,000 shares of common stock in connection with shares underlying an equity line of credit and 3,500,000 shares of common stock underlying warrants issued in connection with the court approved settlement agreement for a total of 183,500,000 reserved shares of common stock.

  15  
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED MARCH 31, 2021 AND 2020

(Unaudited)

 

NOTE 8 – DISCONTINUED OPERATIONS

 

Restaurant

 

Through our other wholly owned subsidiary, E.A.J.: PHL Airport, Inc., we owned and operated the restaurant “Eat at Joe’s®,” which was located in the Philadelphia International Airport since 1997. Our lease in the Philadelphia Airport expired in April 2017. Concurrent with expiration of the lease the restaurant closed. Pursuant to current accounting guidelines, the restaurant segment is reported as discontinued operations.

 

The assets and liabilities of our discontinued restaurant operations as of March 31, 2021 and December 31, 2020 consisted of $0 assets and $22,000 in accounts payable and accrued liabilities.

 

There were no operations for our discontinued restaurant during the three months ended March 31, 2021 and 2020.

 

Digital Media

 

Historically, through our wholly owned subsidiary, SPYR APPS®, LLC, we engaged in the development, publication, and co-publication of mobile electronic games, seeking to generate revenue through those games by way of advertising and in-app purchases. All of our games had been removed from the game stores and the Company has decided not to continue this line of business. Pursuant to current accounting guidelines, the assets and liabilities of SPYR APPS LLC as well as the results of its operations were presented in these financial statements as discontinued operations.

 

The assets and liabilities of our discontinued digital media operations as of March 31, 2021 and December 31, 2020 were as follows:

 

   

March 31,

2021

 

December 31,

2020

Assets:                
Accounts receivable, net   $ 13,000     $ 13,000  
Capitalized gaming assets and licensing rights, net     75,000       75,000  
Total Assets   $ 88,000     $ 88,000  
                 
Liabilities:                
Accounts payable and accrued liabilities   $ 757,000     $ 745,000  
Total Liabilities   $ 757,000     $ 745,000  

 

The results of operations of our discontinued digital media operations for the three months ended March 31, 2021 and 2020, included in the consolidated statements of operations as discontinued operations, consisted of the following:

 

    Three months ended   Three months ended
    March 31,   March 31,
    2021   2020
Revenues:   $ —       $ 3,000  
                 
Expenses                
  Labor and related expenses     —         8,000  
  Other general and administrative     —         23,000  
    Total operating expenses     —         31,000  
    Operating loss     —         (28,000 )
                 
Other income (expense)                
  Interest expense     (12,000 )     (10,000 )
Loss on discontinued operations   $ (12,000 )   $ (38,000 )

 

  16  
 

NOTE 9 – SUBSEQUENT EVENTS

 

Subsequent to March 31, 2021, the Company entered into a lease termination and payment agreement with its landlord, pursuant to which the Company vacated and surrendered the premises to the landlord and the Company will pay approximately $67,000 over 18 months commencing April 1, 2021.

 

Subsequent to March 31, 2021, the Company borrowed $500,000 from a related party to pay its principal settlement liability with the Securities and Exchange Commission and has done so. The Company still owes to the SEC interest on the principal settlement amount in the approximate amount of $11,000 and has requested a final interest calculation from the Securities and Exchange Commission. Upon receipt thereof, the interest will be paid.

 

Subsequent to March 31, 2021, the Company filed paperwork to dissolve its wholly owned subsidiary Branded Foods Concepts, Inc., a Nevada corporation. The dissolution is pending with the Nevada Secretary of State.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  17  
 
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the Condensed Consolidated Financial Statements and supplementary data referred to in this Form 10-Q.

 

This discussion contains forward-looking statements that involve risks and uncertainties. Such statements, which include statements concerning revenue sources and concentration, selling, general and administrative expenses and capital resources, are subject to risks and uncertainties, including, but not limited to, those discussed elsewhere in this Form 10-Q that could cause actual results to differ materially from those projected. Unless otherwise expressly indicated, the information set forth in this Form 10-Q is as of March 31, 2021, and we undertake no duty to update this information.

 

Plan of Operations

 

Through our wholly owned subsidiary Applied Magix Inc., acquired October 20,2020, we are a registered Apple® developer, and reseller of Apple ecosystem compatible products with emphasis on the smart home market. As such, we are in the global “Internet of Things” (IoT) market, and more specifically, the segment of the market related to the development, manufacture and sale of devices and accessories specifically built on Apple’s HomeKit® framework. These products work within the Apple® HomeKit® ecosystem and are exclusive to the Apple market and its consumers. Through our wholly owned subsidiary SPYR APPS, LLC, d/b/a SPYR GAMES we develop, publish, and co-publish mobile games, and then generate revenue through those games by way of advertising and in-app purchases. Our primary focus moving forward is on the development and expansion of our Apple compatible products and devices.

 

Management’s plan for the next 12 months is to execute on that plan by sourcing, reselling, manufacturing, developing, and selling the foregoing types of products, including our proprietary branded products. We expect these marketing, development and expansion plans will be financed through existing cash, operating cash flows from game revenues, and other forms of financing such as the sale of additional equity and debt securities, capital leases and other credit facilities. The Company also plans to diversify, through acquisition or otherwise, in other unrelated business areas and is exploring opportunities to do so.

 

COMPARISON OF THE THREE MONTHS ENDED MARCH 31, 2021 TO 2020

 

The consolidated results of continuing operations for the three months ended March 31, 2021 and 2020 are as follows:

 

    Applied Magix   Corporate   Consolidated
             
For the Three Months Ended March 31, 2021            
Revenues   $ —       $ —       $ —    
Related party service revenues     —         —         —    
Labor and related expenses     (103,000 )     (386,000 )     (489,000 )
Rent     (2,000 )     (26,000 )     (28,000 )
Depreciation and amortization     (2,000 )     (1,000 )     (3,000 )
Professional fees     (7,000 )     (422,000 )     (429,000 )
Research and development     (4,000 )     —         (4,000 )
Other general and administrative     (29,000 )     (17,000 )     (46,000 )
Operating loss     (147,000 )     (852,000 )     (999,000 )
                         
Interest Expense     —         (102,000 )     (102,000 )
Gain on disposition of assets     —         5,000       5,000  
Change in Value of derivative liability     —         (104,000 )     (104,000 )
Unrealized gain (loss) on trading securities     —         1,000       1,000  
Other expense     —         (200,000 )     (200,000 )
Loss from continuing operations   $ (147,000 )   $ (1,052,000 )   $ (1,199,000 )

 

 

  18  
 

 

    Applied Magix   Corporate   Consolidated
For the Three Months Ended March 31, 2020            
Revenues   $ —       $ —       $ —    
Related party service revenues     —         185,000       185,000  
Labor and related expenses     —         (177,000 )     (177,000 )
Rent     —         (37,000 )     (37,000 )
Depreciation and amortization     —         (10,000 )     (10,000 )
Professional fees     —         (42,000 )     (42,000 )
Research and Development     —         —         —    
Other general and administrative     —         (62,000 )     (62,000 )
Operating loss     —         (143,000 )     (143,000 )
                         
Interest Expense     —         (45,000 )     (45,000 )
Litigation settlement costs     —         —         —    
Unrealized loss on trading securities     —         (1,000 )     (1,000 )
Other expense     —         (46,000 )     (46,000 )
Loss from continuing operations   $ —       $ (189,000 )   $ (189,000 )
                         

Results of Operations

 

For the three months ended March 31, 2021 the Company had a loss from continuing operations of $1,199,000 compared to a loss from continuing operations of $189,000 for the three months ended March 31, 2020. This change is due primarily to decreases in revenue of $185,000, and increases labor and related expenses of $312,000, professional fees of $387,000, research and development of $4,000, partially offset by decreases in rent of $9,000, depreciation and amortization of $7,000, and other general and administrative costs of $16,000 during the three months ended March 31, 2021 compared to the three months ended March 31, 2020. Other items contributing to the change included increases in interest expense of $57,000, gain on disposition of assets of $5,000, change in value of derivative liability of $104,000, and unrealized gain on trading securities of $2,000.

 

More detailed explanation of the three months ended March 31, 2021 and 2020 changes are included in the following discussions.

 

Total Revenues - For the three months ended March 31, 2021 and 2020, the Company had total revenue of $0 and $185,000, respectively, for a decrease of $185,000. This change is due to the Company no longer providing professional services to related parties. Since March 31, 2020, the Company has not and does not anticipate that it will provide any further professional services to related parties. Our current business is focused on the development of our wholly owned subsidiary, Applied Magix. The Company received its first order of inventory during late March 2021 consisting of Apple HomeKit products for resale by the company valued at approximately $25,000. These products are available for sale through its website at https://appliedmagix.com/shop/, as well as the eBay Marketplace, Amazon Marketplace, and Walmart’s online marketplace. In addition, the Company has placed an order for approximately $33,000 of Applied Magix branded products expected to arrive during the second quarter of this year and has also paid a down payment in the amount of $32,500 for the development of Applied Magix proprietary products expected to be completed later this year.

 

Labor and related expenses include the costs of salaries, wages, leased employees, contract labor, and the fair value of common stock and options granted to employees and directors for services. For the three months ended March 31, 2021 the company had total labor and related expenses of $489,000 with $214,000 being settled in cash, $60,000 in accrued salaries, and $215,000 being paid in restricted stock recorded at fair value. For the three months ended March 31, 2020 the company had total labor and related expenses of $177,000 with $66,000 being settled in cash, $86,000 in accrued salaries, and $25,000 being paid in restricted stock recorded at fair value. The cost of labor is expected to increase in conjunction with expansion of operations.

 

  19  
 

The cost of rent decreased $9,000 from $37,000 for the three months ended March 31, 2020 to $28,000 for the three months ended March 31, 2021. The Company leased approximately 5,169 square feet at 4643 South Ulster Street, Denver, Colorado pursuant to an amended lease dated May 21, 2015 and expiring on December 31, 2020. Under the lease, the Company paid annual base rent on an escalating scale ranging from $142,000 to $152,000. On May 1, 2020 and July 29, 2020, the Company entered into amended lease agreements with its landlord. Under the terms of the amendments, the landlord agreed to waive rent, certain rent adjustments and parking for the period April 1, 2020 through August 31, 2020 and extend the term of the lease by five months. The lease term date, which was December 31, 2020, was changed to May 31, 2021. Subsequent to March 31, 2021, the Company entered into a lease termination and payment agreement with its landlord, pursuant to which the Company vacated and surrendered the premises to the landlord and the Company will pay approximately $67,000 over 18 months commencing April 1, 2021. In addition, effective March 1, 2021, the Company’s wholly owned subsidiary Applied Magix, entered into a 6-month lease for 2 workspace offices located at 1230 Rosecrans Ave, Manhattan Beach California. Under the lease, the Company pays monthly rent of $1,400.

 

Depreciation and amortization expenses decreased by approximately $7,000 for the three months ended March 31, 2021 compared to the three months ended March 31, 2020. Depreciation and amortization expenses are attributable to depreciation of property and equipment and amortization of intangible assets in service during respective periods. We expect depreciation and amortization expenses to increase in 2021 commensurate with the acquisition of additional property, equipment, and intangible assets in connection with our planned Applied Magix business operations.

 

Professional fees increased $387,000 from $42,000 for the three months ended March 31, 2020 to $429,000 for the three months ended March 31, 2021. Of the $429,000, $58,000 was paid in cash for legal, accounting, and other professional service needs and $371,000 was paid in restricted stock recorded at fair value. Professional fees during the three months ended March 31, 2020 included $41,000 in legal, accounting, and other professional service needs and $1,000 for public relations.

 

Research and development costs during the three months ended March 31, 2021 were $4,000, compared to research and development costs of $0 during the three months ended March 31, 2020. Research and development costs are expected to increase as we develop our planned proprietary Apple HomeKit products.

 

Other general and administrative expenses decreased $16,000 for the three months ended March 31, 2021 compared to the three months ended March 31, 2020. The decrease can be attributed primarily to reductions in costs of insurance of $21,000, partially offset by increases in various other general and administrative cost $5,000.

 

The Company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $102,000 for the three months ended March 31, 2021. The company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $45,000 for the three months ended March 31, 2020.

 

The Company sold certain office equipment for $8,000 which resulted in a gain on disposition of assets of $5,000 for the three months ended March 31, 2021. The Company did not have a corresponding gain for the three months ended March 31, 2020.

 

The Company recognized a gain on the change in value of a derivative liability related to its long-term convertible notes payable in the amount of $104,000 for the three months ended March 31, 2021. The Company did not have a corresponding loss for the three months ended March 31, 2020.

 

The Company had unrealized gains on trading securities of $1,000 for the three months ended March 31, 2021 compared to unrealized losses of $1,000 for the three months ended March 31, 2020. Unrealized gains and losses are the result of fluctuations in the quoted market price of the underlying securities at the respective reporting dates.

 

LIQUIDITY AND CAPITAL RESOURCES

 

The accompanying financial statements have been prepared under the assumption that the Company will continue as a going concern. Such assumption contemplates the realization of assets and satisfaction of liabilities in the normal course of business.

 

The Company has generated a net loss for the three months ended March 31, 2021 of $1,211,000 and utilized cash in operations of $369,000. As of March 31, 2021, the Company had current assets of $340,000, which included cash and cash equivalents of $222,000, prepaid expenses of $78,000, inventory of $25,000, trading securities of $2,000, and current assets of discontinued operations of $13,000.

 

During the three months ended March 31, 2021, the Company has met its capital requirements through a combination of collection of receivables, proceeds from SBA PPP note payable, from the sale of certain office equipment, and through the use of existing cash reserves.

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The Company currently does not have sufficient cash and liquidity to meet its anticipated working capital for the next twelve months. The Company will continue to seek additional capital through the sale of its common stock, debt financing and through expansion of its existing and new products. If these goals do not materialize as planned, we believe that the Company can reduce its operating and product development costs and that would allow us to maintain sufficient cash levels to continue operations. However, if we are not able to achieve profitable operations at some point in the future, we may have insufficient working capital to maintain our operations as we presently intend to conduct them or to fund our expansion, marketing, and product development plans. There can be no assurance that we will be able to obtain such financing on acceptable terms, or at all.

 

The Company may also decide to expand and/or diversify, through acquisition or otherwise, in other related or unrelated business areas if opportunities present themselves.

 

Operating Activities - For the three months ended March 31, 2021, the Company used cash in operating activities of $369,000. For the three months ended March 31, 2020, the Company provided cash in operating activities of $5,000. Operating activities consist of corporate overhead and development of Applied Magix products. Increases are due to increases in cash-paid operating expenses. See the above results of operations discussion for more details.

 

Investing Activities - During the three months ended March 31, 2021, the Company sold property and equipment for $8,000. During the three months ended March 31, 2020, the Company purchased property and equipment for $5,000 and sold property and equipment for $1,000.

 

Financing Activities - During the three months ended March 31, 2021, the Company borrowed $73,000 from the U.S. Small Business Administration pursuant to the Paycheck Protection Program. The Company had no financing activities for the three months ended March 31, 2020.

 

Government Regulations - The Company is subject to all pertinent Federal, State, and Local laws governing its business. Each subsidiary is subject to licensing and regulation by a number of authorities in its State or municipality. These may include health, safety, and fire regulations. The Company's operations are also subject to Federal and State minimum wage laws governing such matters as working conditions, overtime, and tip credits.

 

Critical Accounting Policies - 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 and the disclosure of contingent assets and liabilities as of the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Note 1 to the quarterly and annual Consolidated Financial Statements describes the significant accounting policies and methods used in the preparation of the Consolidated Financial Statements. Estimates are used for, but not limited to, contingencies and taxes. Actual results could differ materially from those estimates. The following critical accounting policies are impacted significantly by judgments, assumptions, and estimates used in the preparation of the Consolidated Financial Statements.

 

Stock-Based Compensation

 

The Company periodically issues stock options and warrants to employees and non-employees in non-capital raising transactions for services and for financing costs. The Company accounts for stock option and warrant grants issued and vesting to employees based on the authoritative guidance provided by the Financial Accounting Standards Board (FASB) whereas the value of the award is measured on the date of grant and recognized over the vesting period. The Company accounts for stock option and warrant grants issued and vesting to non-employees in accordance with the authoritative guidance of the FASB whereas the value of the stock compensation is based upon the measurement date as determined at either a) the date at which a performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete. Non-employee stock-based compensation charges generally are amortized over the vesting period on a straight-line basis. In certain circumstances where there are no future performance requirements by the non-employee, option grants are immediately vested, and the total stock-based compensation charge is recorded in the period of the measurement date.

 

The fair value of the Company's stock option and warrant grants is estimated using the Black-Scholes Option Pricing model, which uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the stock options or warrants, and future dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes Option Pricing model and based on actual experience. The assumptions used in the Black-Scholes Option Pricing model could materially affect compensation expense recorded in future periods.

 

  21  
 

The Company also issues restricted shares of its common stock for share-based compensation programs to employees and non-employees. The Company measures the compensation cost with respect to restricted shares to employees based upon the estimated fair value at the date of the grant and is recognized as expense over the period which an employee is required to provide services in exchange for the award. For non-employees, the Company measures the compensation cost with respect to restricted shares based upon the estimated fair value at measurement date which is either a) the date at which a performance commitment is reached, or b) at the date at which the necessary performance to earn the equity instruments is complete.

 

Derivative Financial Instruments

 

The Company evaluates all of its agreements to determine if such instruments have 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, the Company uses the Black-Scholes Option Pricing model 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. The Company's only derivative financial instruments were embedded conversion features associated with long-term convertible notes payable which contain certain provisions that allow for a variable number of shares on conversion.

 

Loss Contingencies

 

The Company is subject to various loss contingencies arising in the ordinary course of business. The Company considers the likelihood of loss or impairment of an asset or the incurrence of a liability, as well as its ability to reasonably estimate the amount of loss in determining loss contingencies. An estimated loss contingency is accrued when management concludes that it is probable that an asset has been impaired or a liability has been incurred and the amount of the loss can be reasonably estimated. The Company regularly evaluates current information available to us to determine whether such accruals should be adjusted.

 

Recent Accounting Pronouncements

 

See Note 1 of the consolidated financial statements for discussion of recent accounting pronouncements.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Not applicable.

 

ITEM 4. CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures

 

Management of the Company is responsible for maintaining disclosure controls and procedures that are designed to ensure that financial information required to be disclosed in the reports that the Company files or submits under the Securities Exchange Act of 1934 (the “Exchange Act”) is recorded, processed, summarized, and reported within the timeframes specified in the Securities and Exchange Commission’s rules and forms, consistent with Items 307 and 308 of Regulation S-K.

 

In addition, the disclosure controls and procedures must ensure that such financial information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required financial and other required disclosures.

 

As of March 31, 2021, an evaluation of the effectiveness of the Company’s disclosure controls and procedures (as defined in Rules 13(a)-15(e) and 15(d)-15(e) of the Securities Exchange Act of 1934 (the “Exchange Act”) was carried out under the supervision and with the participation of our Chief Executive Officer, Chief Financial Officer, and other persons carrying out similar functions for the Company. In making this assessment, Management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) (Revised 2013) in Internal Control over Financial Reporting - Guidance for Smaller Public Companies. Based on the evaluation of the Company’s disclosure controls and procedures, Management concluded that during the period covered by this report, such disclosure controls and procedures were not effective, due to certain identified material weaknesses. These identified material weaknesses include, (i) insufficient accounting staff, (ii) inadequate segregation of duties, (iii) limited checks and balances in processing cash and other transactions, and (iv) the lack of independent audit committee.

 

  22  
 

The Company is committed to improving its disclosure controls and procedures and the remediation of identified control weaknesses. As capital becomes available, Management plans to increase the accounting and financial reporting staff, add independent directors to the Board of Directors and establish an independent audit committee. We cannot provide assurance that these procedures will be successful in identifying material errors that may exist in the financial statements, nor can we make assurances that additional material weaknesses in its internal control over financial reporting will not be identified in the future.

 

The Company continues to employ and refine a structure in which critical accounting policies, issues and estimates are identified, and together with other complex areas, are subject to multiple reviews by accounting personnel. In addition, the Company evaluates and assesses its internal controls and procedures regarding its financial reporting as necessary and on an on-going basis.

 

Because of its inherent limitations, internal control over financial reporting cannot provide absolute assurance of the prevention or detection of misstatements. In addition, projections of any evaluation of effectiveness to future periods are subject to risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Changes in Internal Controls Over Financial Reporting

 

The Company has no reportable changes to its internal controls over financial reporting for the period covered by this report.

 

The Company will continually enhance and test its internal controls over financial reporting on a continuing basis. Additionally, the Company’s management, under the control of its Chief Executive Officer and Chief Financial Officer, will increase its review of its disclosure controls and procedures on an ongoing basis. Finally, the Company plans to designate, in conjunction with its Chief Financial Officer, individuals responsible for identifying reportable developments and the process for resolving compliance issues related to them. The Company believes these actions will focus necessary attention and resources in its internal accounting functions.

  

PART II - OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

Settlements

 

On June 18, 2018 the Company was named as a defendant in a case filed in the United States District Court for the Southern District of New York: Securities and Exchange Commission vs. Joseph A. Fiore, Berkshire Capital Management Co., Inc., and Eat at Joe’s, Ltd. n/k/a SPYR, Inc.(“Defendants”). Joseph A. Fiore was the Chairman of our Board of Directors and is a significant shareholder. Mr. Fiore resigned from his positions as Chairman of the Board and as a Director of the Company effective August 1, 2018. The suit alleged that Mr. Fiore, during 2013 and 2014, while he was the Company’s Chief Executive Officer, Chief Financial Officer and Chairman of the Board of Directors, engaged in improper conduct on behalf of the defendants named in the case related to the Company’s sales of securities in Plandai Biotechnology, Inc. The Commission alleged that Mr. Fiore and the Company unlawfully benefited through the sales of those securities. The Commission also alleged that from 2013 to 2014, the Company’s primary business was investing and that it failed to register as an investment company, resulting in an alleged violation of Section 7(a) of the Investment Company Act of 1940. The suit sought to disgorge Joseph A. Fiore, Berkshire Capital Management Co., Inc., and the Company of alleged profits on the sale of the securities and civil fines related to the Company’s failure to register as an investment company with the Commission.

 

Pursuant to a settlement agreement among the parties, on April 14, 2020, final judgment was entered in the case: Securities and Exchange Commission vs. Joseph A. Fiore, Berkshire Capital Management, Inc. and Eat at Joes, Inc., n/k/a SPYR, Inc., case number 7:18-cv-05474-KMK filed in the U.S. District Court for the Southern District of New York.

 

On April 23, 2020, Joseph Fiore/Berkshire Capital Management, Inc. satisfied the Company’s joint and several liability obligation by paying to the Commission the agreed upon sum of Two Million Dollars pursuant to a settlement agreement between Joseph Fiore/Berkshire Capital Management, Inc. and the Company, which settlement agreement was entered into on April 15, 2020. The Company has until April 14, 2021 to satisfy its remaining financial obligation to the Commission, an agreed upon civil penalty of Five Hundred Thousand Dollars ($500,000). The $500,000, together with accrued interest of $11,000, was reported as part of accounts payable and accrued liabilities on the accompanying condensed consolidated balance sheets as of March 31, 2021.

 

  23  
 

In electing to settle with the Commission, the Company neither admitted nor denied liability to any of the Commission’s allegations in its complaint, and in consideration for the Commission discontinuing its action, the Company, along with the two other defendants Joseph Fiore and Berkshire Capital Management agreed to be jointly and severally liable for disgorgement of profits and prejudgment interest in the amount of two million dollars, and to each be solely liable to pay a civil penalty in the amount of five hundred thousand dollars.[2]

 

Subsequent to March 31, 2021, the Company borrowed $500,000 from a related party to pay its principal settlement liability with the Securities and Exchange Commission and has done so. The Company still owes to the SEC interest on the principal settlement amount in the approximate amount of $11,000 and has requested a final interest calculation from the Securities and Exchange Commission. Upon receipt thereof, the interest will be paid.

 

Judgments

 

On or about January 24, 2019, SPYR APPS, LLC entered into an agreement with one of its vendors, Shatter Storm Studios, to whom it owed $84,250 for artwork related to the Steven Universe game. Pursuant to the terms of that agreement, SPYR APPS, LLC needed to make payment in the amount of $85,000 to cover the principal owed and attorneys’ fees together plus 6% interest in that amount by December 1, 2019. Should SPYR APPS, LLC not make the required payment on or before December 1, 2019, it consented to entry of judgment in favor of Shatter Storm Studios for the amount owed. SPYR APPS, LLC did not make the payment and on January 27, 2020 Shatter Storm Studios initiated Case No. 1:200cv-00217 in the U.S. District Court for the District of Colorado seeking entry of the consent judgment against SPYR APPS, LLC. The judgment was not contested by SPYR APPS, LLC and judgment in the amount of $85,000 plus post judgment interest at the rate of 6% was entered on March 17, 2020. The $85,000 plus accrued interest and attorneys’ fees has been reported as part of accounts payable and accrued liabilities. The balance due as of March 31, 2021 and December 31, 2020 was approximately $96,000 and $94,000, respectively and is reported as part of current liabilities of discontinued operations.

 

ITEM 1A. RISK FACTORS

 

Not applicable to smaller reporting companies.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

None.

 

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

 

None.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable

 

ITEM 5. OTHER INFORMATION

 

None.

 

[2] In addition, an injunction was entered against the Company enjoined it from violating the antifraud, market manipulation, beneficial ownership reporting, and other provisions of the federal securities laws charged in the SEC’s complaint.

  24  
 

ITEM 6. EXHIBITS

 

The following exhibits are included as part of this report:

   

Exhibit

Number

Exhibit Description
3.1 Articles of Incorporation (1)
3.2 By-laws (1)
3.3 Amended Articles of Incorporation (1)
10.1 Securities Purchase Agreement dated September 30, 2020 (1)
10.2 Exhibit A to Securities Purchase Agreement, Convertible Promissory Note dated September 30, 2020 (1)
10.3 Exhibit B to Securities Purchase Agreement, Stock Purchase Warrant dated September 30, 2020 (1)
10.4 Exhibit C to Securities Purchase Agreement, Registration Rights Agreement dated September 30, 2020 (1)
10.5 Equity Purchase Agreement dated September 30, 2020 (1)
10.6 Registration Rights Agreement dated September 30, 2020 (1)
10.7 Stock Purchase Agreement for the acquisition of Applied Magix dated October 20, 2020 (1)
14 Code of Ethics (1)
21 Subsidiaries of the Company (1)
31** Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32*** Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS** XBRL Instance Document
101.SCH** XBRL Taxonomy Extension Schema Document
101.CAL** XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF** XBRL Taxonomy Extension Definition Linkbase Document
101.LAB** XBRL Taxonomy Extension Label Linkbase Document
101.PRE** XBRL Taxonomy Extension Presentation Linkbase Document

 

**       Filed herewith

***       Furnished Herewith

(1)       Incorporated by reference.

 

  25  
 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated: May 17, 2021

 

  SPYR, INC.
     
  By: /S/ James R. Thompson
    James R. Thompson
    President & Chief Executive Officer
    (Principal Executive Officer)
     
  By: /S/ Barry D. Loveless
    Barry D. Loveless
    Chief Financial Officer
    (Principal Financial and Accounting Officer)

  

  

 

 

 

  26  

 

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