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: September 30, 2020

 

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.)

 

4643 S. Ulster St., Suite 1510, Denver, CO 80237

(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 November 16, 2020, there were 209,837,631 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 Operation 18
Item 3. Quantitative And Qualitative Disclosures About Market Risk 26
Item 4. Controls And Procedures 26
     
Part II Other Information 27
     
Item 1. Legal Proceedings 28
Item 1a. Risk Factors 28
Item 2. Unregistered Sale Of Equity Securities And Use Of Proceeds 28
Item 3. Defaults Of Senior Securities 28
Item 4. Mine Safety Disclosures 28
Item 5. Other Information 28
Item 6. Exhibits 28
 2 
 

PART I - FINANCIAL INFORMATION

 

ITEM 1.FINANCIAL STATEMENTS
SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
       
    September 30, 2020    December 31, 2019 
ASSETS          
Current Assets:          
Cash and cash equivalents  $8,000   $10,000 
Accounts receivable, net   14,000    77,000 
Prepaid expenses   2,000    15,000 
Trading securities, at market value   1,000    1,000 
Total Current Assets   25,000    103,000 
           
Property and equipment, net   30,000    59,000 
Capitalized gaming assets and licensing rights, net   75,000    100,000 
Intangible assets, net   4,000    6,000 
Operating lease right-of-use asset   38,000    80,000 
Other assets   13,000    13,000 
TOTAL ASSETS  $185,000   $361,000 
           
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)          
LIABILITIES          
Current Liabilities:          
Accounts payable and accrued liabilities  $2,290,000   $1,834,000 
Related party short-term advances   1,166,000    1,115,000 
Related party line of credit   1,186,000    1,134,000 
Short-term convertible notes payable, net   347,000    550,000 
SBA PPP Note Payable, current portion   39,000    —   
Operating lease liability - current portion   79,000    92,000 
Current liabilities of discontinued operations   22,000    22,000 
Total Current Liabilities   5,129,000    4,747,000 
           
SBA PPP Note Payable   32,000    —   
Total Liabilities   5,161,000    4,747,000 
           
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          
 September 30, 2020 and December 31, 2019   11    11 
20,000 Class E shares issued and outstanding as of          
  September 30, 2020 and December 31, 2019   2    2 
Common stock, $0.0001 par value, 750,000,000 shares authorized          
203,137,631 and 200,880,131 shares issued and outstanding as of          
September 30, 2020 and December 31, 2019   20,314    20,088 
Additional paid-in capital   53,781,673    53,509,899 
Accumulated deficit   (58,778,000)   (57,916,000)
Total Stockholders’ Equity (Deficit)   (4,976,000)   (4,386,000)
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)  $185,000   $361,000 
           
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 September 30,  For the Nine Months Ended September 30,
   2020  2019  2020  2019
             
Revenues  $1,000   $10,000   $4,000   $44,000 
Related party service revenues   —      8,000    185,000    60,000 
          Gross Margin   1,000    18,000    189,000    104,000 
                     
Expenses                    
Labor and related expenses   151,000    195,000    487,000    716,000 
Rent   23,000    36,000    88,000    110,000 
Depreciation and amortization   9,000    11,000    28,000    33,000 
Professional fees   12,000    15,000    65,000    81,000 
Research and development   —      (70,000)   —      (44,000)
Other general and administrative   29,000    84,000    183,000    248,000 
Total Operating Expenses   224,000    271,000    851,000    1,144,000 
Operating Loss   (223,000)   (253,000)   (662,000)   (1,040,000)
                     
Other Expense                    
Interest Expense   (70,000)   7,000    (180,000)   (183,000)
Gain on disposition of assets   1,000    —      2,000    —   
Write-down of assets   (25,000)   —      (25,000)   —   
SBA EIDL grant   —      —      3,000    —   
Unrealized gain (loss) on trading securities   (1,000)   (1,000)   —      (3,000)
Total Other Expense   (95,000)   6,000    (200,000)   (186,000)
                     
Net Loss   (318,000)   (247,000)   (862,000)   (1,226,000)
                     
Per Share Amounts                    
Net Loss                    
Basic and Diluted earnings per share  $(0.00)  $(0.00)  $(0.00)  $(0.01)
                     
Weighted Average Common Shares                    
Basic and Diluted   202,524,370    200,055,131    202,116,518    199,624,728 
                     
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 Nine Months Ended September 30, 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)
Net loss   —      —      —      —      —      —      —      (317,000)   (317,000)
Balance at June 30, 2020   107,636    11    20,000    2    202,130,131    20,213    53,534,774    (58,460,000)   (4,905,000)
Fair value of common stock issued for conversion of notes payable   —      —      —      —      1,007,500    101    151,899    —      152,000 
Fair value of warrants issued to settle convertible notes payable   —      —      —      —      —      —      95,000    —      95,000 
Net loss   —      —      —      —      —      —      —      (318,000)   (318,000)
Balance at September 30, 2020   107,636   $11    20,000   $2    203,137,631   $20,314   $53,781,673   $(58,778,000)  $(4,976,000)
                                              
The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

 5 
 

 

SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
For the Nine Months Ended September 30, 2019
(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, 2018   107,636   $11    20,000   $2    198,305,131   $19,830   $53,265,157   $(55,951,000)  $(2,666,000)
Fair value of common stock issued for employee compensation   —      —      —      —      1,250,000    125    130,875    —      131,000 
Net loss   —      —      —      —      —      —      —      (450,000)   (450,000)
Balance at March 31, 2019   107,636    11    20,000    2    199,555,131    19,955    53,396,032    (56,401,000)   (2,985,000)
Fair value of common stock issued for conversion of notes payable   —      —      —      —      500,000    50    49,950    —      50,000 
Net loss   —      —      —      —      —      —      —      (529,000)   (529,000)
Balance at June 30, 2019   107,636    11    20,000    2    200,055,131    20,005    53,445,982    (56,930,000)   (3,464,000)
Net loss   —      —      —      —      —      —      —      (247,000)   (247,000)
Balance at September 30, 2019   107,636   $11    20,000   $2    200,055,131   $20,005   $53,445,982   $(57,177,000)  $(3,711,000)
                                              
The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

 

 

 6 
 
SPYR, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
       
   For the Nine Months Ended September 30,
   2020  2019
Cash Flows From Operating Activities:          
Net loss  $(862,000)  $(1,226,000)
Adjustments to reconcile net loss to net cash used in operating activities:          
Depreciation and amortization   28,000    33,000 
Common stock issued for employee compensation   25,000    131,000 
Amortization of debt discounts on convertible notes payable   —      62,000 
Gain on disposition of assets   (2,000)   —   
Loss on Write-down of assets   25,000    —   
SBA EIDL grant   (3,000)   —   
Unrealized (gain) loss on trading securities   —      3,000 
Changes in operating assets and liabilities:          
Decrease in accounts receivables   63,000    27,000 
Decrease in prepaid expenses   13,000    2,000 
(Increase) Decrease in operating lease right-of-use asset   29,000    (7,000)
Increase in accounts payable and accrued liabilities   456,000    61,000 
Increase in accrued interest on short-term advances - related party   51,000    30,000 
Increase in accrued interest on line of credit - related party   52,000    49,000 
Increase in accrued interest and liquidated damages on convertible notes   46,000    98,000 
Net Cash Used in Operating Activities   (79,000)   (737,000)
           
Cash Flows From Investing Activities:          
Purchase of property and equipment   (5,000)   —   
Sale of property and equipment   8,000    —   
Net Cash Provided by Investing Activities   3,000    —   
           
Cash Flows From Financing Activities:          
Proceeds from short-term advances - related party   —      749,000 
Proceeds from SBA EIDL grant   3,000    —   
Proceeds from SBA PPP note payable   71,000    —   
Net Cash Provided by Financing Activities   74,000    749,000 
           
Net increase (decrease) in Cash   (2,000)   12,000 
Cash and cash equivalents at beginning of period   10,000    24,000 
Cash and cash equivalents at end of period  $8,000   $36,000 
           
Supplemental Disclosure of Interest and Income Taxes Paid:          
Interest paid during the period  $1,000   $—   
Income taxes paid during the period  $—     $—   
           
Supplemental Disclosure of Non-cash Investing and Financing Activities:          
Warrants issued to settle convertible notes payable  $95,000   $—   
Partial conversion of notes payable to common stock  $152,000   $50,000 
           
The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 7 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(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, 2019 filed with the SEC. The condensed consolidated balance sheet as of December 31, 2019 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, SPYR APPS, LLC, a Nevada Limited Liability Company, E.A.J.: PHL, Airport Inc., a Pennsylvania corporation (discontinued operations, see Note 7), and Branded Foods Concepts, Inc., a Nevada corporation. Intercompany accounts and transactions have been eliminated.

 

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 nine months ended September 30, 2020, the Company recorded a net loss from continuing operations of $862,000 and have current liabilities of $5,129,000. As of September 30, 2020, we had cash of $8,000, and accounts receivable of $14,000. 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 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.

 

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 our 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. However, management cannot make any assurances that such financing will be secured.

 8 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

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 September 30, 2020 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 803,213, Options – 849,900, Warrants – 9,800,000) would have had an anti-dilutive effect due to the Company generating a loss for the three months ended September 30, 2020.

 

The basic and fully diluted shares for the three months ended September 30, 2019 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 1,851,852, Options – 12,449,900, Warrants – 9,000,000) would have had an anti-dilutive effect due to the Company generating a loss for the three months ended September 30, 2019.

 

The basic and fully diluted shares for the nine months ended September 30, 2020 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 803,213, Options – 849,900, Warrants – 9,800,000) would have had an anti-dilutive effect due to the Company generating a loss for the nine months ended September 30, 2020.

 

The basic and fully diluted shares for the nine months ended September 30, 2019 are the same because the inclusion of the potential shares (Class A – 26,909,028, Class E – 1,851,852, Options – 12,449,900, Warrants – 9,000,000) would have had an anti-dilutive effect due to the Company generating a loss for the nine months ended September 30, 2019.

 

Capitalized Gaming Assets and Licensing Rights

 

As of September 30, 2020, the Company’s capitalized gaming assets consist of Battlewack: Idle Lords which was acquired in 2017 for cash of $100,000 from the game owner and developer. The game requires additional development before it can be released. As such, the Company does not expect amortization expense related to capitalized gaming assets and licensing rights until existing or future gaming assets, through development or acquisition, are placed into service. During September 2020 the Company recognized an impairment loss of $25,000 on this game and recorded as a loss on write down of assets in the consolidated statement of operations for the three and nine months ended September 30, 2020.

 

Software Development Costs

 

Costs incurred for software development are expensed as incurred. During the nine months ended September 30, 2020 and 2019, the Company incurred $0 and $34,000 in software development costs paid to independent gaming software developers.

 

In addition, during September 2019, the Company received a credit from an independent gaming software developer for previously incurred development costs in the amount of $78,000. The credit was recorded as a reduction to research and development expenses during the nine months ended September 30, 2019.

 

 

  

 

 

 

 9 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

Accounts Receivable

 

The following is a summary of receivables at September 30, 2020 and December 31, 2019:

 

   September 30, 2020  December 31, 2019
       
Game revenue due from in app purchases,  $26,000   $39,000 
     Less allowance for doubtful accounts   (12,000)   (12,000)
Game revenue due from in app advertising   —      —   
Related party professional service revenues   —      50,000 
Other Receivables   —      —   
     Accounts Receivable, net  $14,000   $77,000 

 

Accounts receivable are carried at their estimated collectible amounts and are not subject to any interest or finance charges.

 

Allowance for Doubtful Accounts

 

The Company evaluates the collectability of accounts receivable based on a combination of factors. In cases where the Company becomes aware of circumstances that may impair a specific customer's ability to meet its financial obligations subsequent to the original sale, the Company will recognize an allowance against amounts due, and thereby reduce the net recognized receivable to the amount the Company reasonably believes will be collected. For all other customers, the Company recognizes an allowance for doubtful accounts based on the length of time the receivables are past due and consideration of other factors such as industry conditions, the current business environment and the Company's historical payment experience. An allowance for doubtful accounts is established as losses are estimated to have occurred through a provision for bad debts charged to earnings. This evaluation is inherently subjective and requires estimates that are susceptible to significant revisions as more information becomes available.

 

As of September 30, 2020, management has recorded an allowance for doubtful accounts in the amount of approximately $12,000.

 

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 the financial institutions.

 

The Company grants credit to its game revenue and service revenue customers. The Company typically does not require collateral from customers. Credit risk is limited due to the financial strength of the customers comprising the Company’s customer. The Company monitors exposure of credit losses and maintains allowances for anticipated losses considered necessary under the circumstances (See “Allowance for Doubtful Accounts” above).

 

Major Customers

 

The Company had two related party customers who comprised 0% and 98% of net revenue during the nine months ended September 30, 2020, and 58% and 0% of net revenue during the nine months ended September 30, 2019. The loss of these customers would adversely impact the business of the Company.

 

    Net Revenue %    Gross Accounts Receivable 
    Nine Months Ended September 30,    Nine Months Ended September 30,    

As of

September 30,

    

As of

December 31,

 
    2020    2019    2020    2019 
Customer A   0%   58%  $—     $—   
Customer B   98%   0%   —      50,000 
Total   98%   58%  $—     $50,000 

 

 10 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

Recent Accounting Standards

 

The 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

 

During 2017, the Company obtained a revolving line of credit from Berkshire Capital Management Co., Inc. Berkshire is controlled by Joseph Fiore, majority shareholder and former chairman of the board of directors of the Company. 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. Repayment on the loan is due December 31, 2020. As of September 30, 2020, the Company has borrowed $1,000,000 and accrued interest of $186,000.

 

During 2018 and 2019 the Company received $1,062,000 in the form of short-term advances from Berkshire Capital Management Co., Inc. The short-term advances are due upon demand. Interest on the short-term advances has been accrued at 6% per annum through September 30, 2020 in the amount of $104,000 for a total balance due as of September 30, 2020 of $1,166,000.

 

During the nine months ended September 30, 2019, the Company, received $60,000 in revenue for professional services rendered to a related Company whose directors are also officers of SPYR, Inc. and whose majority shareholder is Berkshire Capital Management Co., Inc.

 

During the nine months ended September 30, 2020, the Company, received $185,000 in revenue for professional services rendered to Berkshire Capital Management Co., Inc.

 

NOTE 3 – CONVERTIBLE NOTES

 

On April 20, 2018, (modified May 22, 2018) the Company issued a $165,000 (originally $158,000) convertible note with original issue discount (OID) of $15,000 and bearing interest at 8% per annum. The amended maturity date of the note was June 1, 2019 and was convertible on or after October 17, 2018 into the Company’s restricted common stock at $0.20 per share at the holder’s request. The OID is recorded as a discount to the debt agreement. The Company determined the note to contain a beneficial conversion feature valued at $104,000 based on the intrinsic per share value of the conversion feature. This beneficial conversion feature was recorded as a discount to the debt agreement. The noteholder was also granted detachable 3-year warrants to purchase 200,000 shares of the company’s restricted common stock at an exercise price of $0.375 per share, 200,000 shares of the company’s restricted common stock at an exercise price of $0.50 per share, and 100,000 shares of the company’s restricted common stock at an exercise price of $0.625 per share. The warrants were valued at $126,000 using the Black-Scholes pricing model and were recorded as a discount to the debt agreement. The noteholder was also issued 116,000 shares of the company’s restricted common stock valued at $34,000 based upon the closing price of the Company stock on the date of the modified agreement and recorded as a discount to the debt agreement. On May 10, 2019, the Company amended the note to extend the due date to June 1, 2019, provide for a partial conversion of $25,000 of the outstanding principal balance into common shares of the Company at a conversion price of $0.10 per share for a total of 250,000 shares, and waive any prior alleged or actual defaults under the note. On August 25, 2020 the holder converted $101,500 of the outstanding principal balance into common shares of the Company at a conversion price of $0.20 per share for a total of 507,500 shares. On September 30, 2020, the Company amended the note to provide for a conversion of $150,000 of the outstanding principal and interest due into common shares of the Company at a conversion price of $0.125 per share for a total of 1,200,000 shares, and amend the warrants by adjusting the exercise price to $0.25 per share. Upon receipt of the 1,200,000 shares by the Holder, the note shall be considered paid in full. The Company has accrued approximately $117,000 in interest and liquidated damages for this note through September 30, 2020. At September 30, 2020 and December 31, 2019, the principal balance together with total accrued interest and liquidated damages is recorded on the Company’s consolidated balance sheet net of discounts at $155,000 and $254,000, respectively. Subsequent to September 30, 2020, on October 22, 2020, the Company completed the issuance of the 1,200,000 shares and the note was considered paid in full.

 11 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

On May 22, 2018, the Company issued a $275,000 convertible note with original issue discount (OID) of $25,000 and bearing a one-time interest charge at 8%. The amended maturity date of the note is March 31, 2021 and is convertible into the Company’s restricted common stock at $0.25 per share at the holder’s request. The OID is recorded as a discount to the debt agreement. The Company determined the note to contain a beneficial conversion feature valued as $40,000 based on the intrinsic per share value of the conversion feature. This beneficial conversion feature was recorded as a discount to the debt agreement. The noteholder was also granted detachable 5-year warrants to purchase 200,000 shares of the company’s restricted common stock at an exercise price of $2.00 per share. The warrants were valued at $45,000 using the Black-Scholes pricing model and were recorded as a discount to the debt agreement. The noteholder was also issued 200,000 shares of the company’s restricted common stock valued at $58,000 based upon the closing price of the Company stock on the date of the agreement and recorded as a discount to the debt agreement. On May 10, 2019, the Company amended the note to extend the due date to September 1, 2019, provide for a partial conversion of $25,000 of the outstanding principal balance into common shares of the Company at a conversion price of $0.10 per share for a total of 250,000 shares, and waive any prior alleged or actual defaults under the note. On October 11, 2019, the Company amended the note to extend the due date to December 31, 2019, provide for a partial conversion of $50,000 of the outstanding principal balance into common shares of the Company at a conversion price of $0.10 per share for a total of 500,000 shares, and waive any prior alleged or actual defaults under the note. . On August 25, 2020, the Company amended the note to extend the due date to March 31, 2021, provide for a partial conversion of $50,000 of the outstanding principal balance into common shares of the Company at a conversion price of $0.10 per share for a total of 500,000 shares, and waive any prior alleged or actual defaults under the note. On September 30, 2020, the Company amended the note to provide for a conversion of $150,000 of the outstanding principal balance into common shares of the Company at a conversion price of $0.125 per share for a total of 1,200,000 shares, and amend the warrants by increasing the number of warrant shares to 1,000,000 at an adjusted exercise price to $0.25 per share. Upon receipt of the 1,200,000 shares and $47,000 cash by the Holder, the note shall be considered paid in full. The Company has accrued approximately $47,000 in interest and liquidated damages for this note through September 30, 2020. At September 30, 2020 and December 31, 2019, the principal balance together with total accrued interest and liquidated damages is recorded on the Company’s consolidated balance sheet net of discounts at $197,000 and $296,000, respectively. Subsequent to September 30, 2020, on October 21, 2020, the Company completed the issuance of the 1,200,000 shares and payment of the $47,000 cash and the note was considered paid in full.

 

The following table summarized the Company's convertible notes payable as of September 30, 2020 and December 31, 2019:

 

   September 30, 2020  December 31, 2019
Beginning Balance  $550,000   $432,000 
Proceeds from the issuance of convertible notes, net of issuance discounts       —   
Repayments   —      —   
Conversion of notes payable into common stock   (152,000)   (100,000)
Amortization of discounts   —      62,000 
Liquidated damages   (53,000)   134,000 
Accrued Interest   2,000    22,000 
Convertible notes payable, net  $347,000   $550,000 
           
Convertible notes, short term  $189,000   $340,000 
Accrued interest and damages, short term   158,000    210,000 
Debt discounts, short term   —      —   
Short-term convertible notes payable, net  $347,000   $550,000 
           

 

 12 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

NOTE 4 – SMALL BUSINESS ADMINISTRATION DEBT

 

On May 12, 2020 the Company received a Paycheck Protection Program loan from the U.S. Small Business Administration 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. Any amount not forgiven must be repaid in eighteen monthly consecutive principal and interest payments beginning December 2020. As of September 30, 2020, the balance due on this note was approximately $71,000.

 

NOTE 5 – 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 September 30, 2020, no shares have been sold pursuant to this agreement.

 

Operating Leases

 

The Company leases 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 pays 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 an amended lease agreement with its landlord. Under the terms of the amendment, 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. As a result of these amendments, the lease term date, which was December 31, 2020, is now May 31, 2021.

 13 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

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.

 

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 liability is reported as part of accounts payable and accrued liabilities on the accompanying condensed consolidated balance sheets as of September 30, 2020 and December 31, 2019 and was recorded as litigation settlement costs on the consolidated statements of operations on the Company’s form 10K for the year ended December 31, 2019.

 

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]

 

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 September 30, 2020 and December 31, 2019 was approximately $94,000 and $90,000, respectively.

 

[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.

 14 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

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.

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 6 – EQUITY TRANSACTIONS

 

Common Stock:

 

Nine Months Ended September 30, 2019

 

During the nine months ended September 30, 2019, the Company issued an aggregate of 1,250,000 shares of restricted common stock to employees with a total fair value of $131,000 for services rendered. The shares issued are non-refundable and deemed earned upon issuance. As a result, the Company expensed the entire $131,000 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 nine months ended September 30, 2019, the Company issued an aggregate of 500,000 shares of common stock in conversion of notes payable with a total fair value of $50,000. As a result, the Company reduced the balance due on the notes by $50,000 upon issuance.

 

Nine Months Ended September 30, 2020

 

During the nine months ended September 30, 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.

 

During the nine months ended September 30, 2020, the Company issued an aggregate of 1,007,500 shares of common stock in conversion of notes payable with a total fair value of $152,000. As a result, the Company reduced the balance due on the notes by $152,000 upon issuance.

 

 

  

 

 

 

 

 15 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

Options:

 

The following table summarizes common stock options activity:

 

      Weighted
      Average
      Exercise
   Options  Price
 December 31, 2019    9,299,900   $0.57 
 Granted    —      —   
 Exercised    —      —   
 Expired    (8,450,000)   4.79 
 Outstanding, September 30, 2020    849,900   $1.00 
 Exercisable, September 30, 2020    849,900   $1.00 

 

The weighted average exercise prices, remaining lives for options granted, and exercisable as of September 30, 2020 were as follows:

                     
    Outstanding Options       Exercisable Options
Options           Weighted       Weighted
Exercise Price       Life   Average Exercise       Average Exercise
Per Share   Shares   (Years)   Price   Shares   Price
$1.00   849,900   0.07 – 1.35   $1.00   849,900   $1.00
    849,900       $1.00   849,900   $1.00

 

At September 30, 2020, the Company’s closing stock price was $0.13 per share. As all outstanding options had an exercise price greater than $0.13 per share, there was no intrinsic value of the options outstanding at September 30, 2020.

 

Warrants:

 

The following table summarizes common stock warrants activity:

 

      Weighted
      Average
      Exercise
   Warrants  Price
 Outstanding, December 31, 2019    9,000,000   $0.46 
 Granted    800,000    0.25 
 Exercised    —      —   
 Forfeited    —      —   
 Outstanding, September 30, 2020    9,800,000   $0.40 
 Exercisable, September 30, 2020    9,800,000   $0.40 

 

The weighted average exercise prices, remaining lives for warrants granted, and exercisable as of September 30, 2020, were as follows:

 

    Outstanding and Exercisable Warrants  
Warrants          
Exercise Price       Life  
Per Share   Shares   (Years)  
$0.01   600,000   0.25  
$0.15   1,200,000   0.28  
$0.25   2,500,000   0.55 - 2.78  
$0.40   1,200,000   0.28  
$0.50   2,800,000   0.08 – 2.78  
$0.75   1,250,000   0.66 – 2.78  
$1.00   250,000   0.66  
    9,800,000      

 

 16 
 

SPYR, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

NINE MONTHS ENDED SEPTEMBER 30, 2020 AND 2019

(Unaudited)

 

At September 30, 2020, the Company’s closing stock price was $0.13 per share. The Company had 600,000 warrants outstanding with exercise prices less than $0.01 with an intrinsic value of $72,000 at September 30, 2020.

 

Shares Reserved:

 

At September 30, 2020, the Company has reserved 30,000,000 shares of common stock in connection with 2 short-term convertible notes with detachable warrants, 50,000,000 shares of common stock in connection with a long-term convertible note with detachable warrants, 100,000,000 shares of common stock in connection with an equity line of credit and 3,500,000 shares of common stock in connection with the court approved settlement agreement for a total of 183,500,000 reserved shares of common stock.

 

NOTE 7 – 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 segment's discontinued operations as of September 30, 2020 and December 31, 2019 consisted of $0 assets and $22,000 in accounts payable and accrued liabilities.

 

There were no operations for our discontinued restaurant segment during the nine months ended September 30, 2020 and 2019.

 

NOTE 8 – SUBSEQUENT EVENTS

 

On October 5, 2020, the Company issued a $500,000 convertible note bearing interest at 8% per annum. The maturity date of the note is September 30, 2025 and is convertible at the holder’s request into the Company’s restricted common stock at the lesser of $0.25 or 70% of the three lowest Variable Weighted Average Price (“VWAP”) for the Company’s common stock during the 20-trading day period immediately prior to the conversion date. The noteholder was also granted detachable 5-year warrants to purchase 1,000,000 shares of the company’s restricted common stock at an exercise price of $0.25 per share. The warrants become cashless and the exercise price subject to adjustment the event that the underlying shares are not registered as of the date of exercise.

 

On October 20, 2020, the Company entered into a stock purchase agreement with Dr. Harald Zink and Richard Kelly Clark, sole shareholders of Applied MagiX, Inc., a Nevada corporation (“Applied MagiX”). In exchange for the Company’s promise to allocate $600,000 for the execution of Applied MagiX’s business plan over the first three months after closing, the Company acquired all of the issued and outstanding shares of Applied MagiX, and Applied MagiX became a wholly owned subsidiary of the Company.

 

Also on October 20, 2020, the company entered into employment agreements with Dr. Harald Zink and Richard Kelly Clark. In connection with the employment agreements the company issued an aggregate of 2,000,000 shares of restricted common stock with a total fair value of $302,000 and 5,000,000 options to purchase shares of restricted common stock at an exercise price ranging from $0.25 to $1.50 over the next 30 months.

 

Subsequent to September 30, 2020, the Company issued an aggregate of 2,300,000 shares of restricted common stock to employees with a total fair value of $417,000 for services rendered.

 

Subsequent to September 30, 2020, the Company issued an aggregate of 2,400,000 shares of common stock in conversion of notes payable with a total fair value of $300,000.

 

 

 

 

 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 September 30, 2020, 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 a 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 SEPTEMBER 30, 2020 TO 2019

 

The consolidated results of continuing operations for the three months ended September 30, 2020 and 2019 are as follows:

 

   Digital Media  Corporate  Consolidated
          
Three Months Ended September 30, 2020               
Revenues  $1,000   $—     $1,000 
Related party service revenues   —      —      —   
Labor and related expenses   —      (151,000)   (151,000)
Rent   —      (23,000)   (23,000)
Depreciation and amortization   —      (9,000)   (9,000)
Professional fees   —      (12,000)   (12,000)
Research and development   —      —      —   
Other general and administrative   (4,000)   (25,000)   (29,000)
Operating loss   (3,000)   (220,000)   (223,000)
                
Interest Expense   (11,000)   (59,000)   (70,000)
Gain on disposition of assets   —      1,000    1,000 
Write-down of assets   (25,000)   —      (25,000)
SBA EIDL grant   —      —      —   
Unrealized gain (loss) on trading securities   —      (1,000)   (1,000)
Other expense   (36,000)   (59,000)   (95,000)
Loss from continuing operations  $(39,000)  $(279,000)  $(318,000)
                

 

 18 
 

 

   Digital Media  Corporate  Consolidated
Three Months Ended September 30, 2019               
Revenues  $10,000   $—     $10,000 
Related party service revenues   —      8,000    8,000 
Labor and related expenses   (49,000)   (146,000)   (195,000)
Rent   —      (36,000)   (36,000)
Depreciation and amortization   (1,000)   (10,000)   (11,000)
Professional fees   —      (15,000)   (15,000)
Research and Development   70,000    —      70,000 
Other general and administrative   (18,000)   (66,000)   (84,000)
Operating loss   12,000    (265,000)   (253,000)
                
Interest Expense   (10,000)   17,000    7,000 
Unrealized loss on trading securities   —      (1,000)   (1,000)
Other expense   (10,000)   16,000    6,000 
Loss from continuing operations  $2,000   $(249,000)  $(247,000)

 

Results of Operations

 

For the three months ended September 30, 2020 the Company had a loss from continuing operations of $318,000 compared to a loss from continuing operations of $247,000 for the three months ended September 30, 2019. This change is due primarily to decreases in revenue of $17,000, labor and related expenses of $44,000, rent of $13,000, depreciation and amortization of $2,000, professional fees of $3,000, other general and administrative costs of $55,000, and interest expense of $77,000 during the three months ended September 30, 2020 compared to the three months ended September 30, 2019. Other items contributing to the change included increases in research and development of $70,000, gain on disposition of assets of $1,000, and loss on write-down of assets of $25,000.

 

More detailed explanation of the three months ended September 30, 2020 and 2019 changes are included in the following discussions.

 

Total Revenues - For the three months ended September 30, 2020 and 2019, the Company had total revenue of $1,000 and $10,000, respectively, for a decrease of $9,000. This change is due to reduced games revenue.

 

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 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.

 

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 for services. For the three months ended September 30, 2020 the company had total labor and related expenses of $151,000 with $0 being settled in cash and $151,000 in accrued salaries. For the three months ended September 30, 2019 the company had total labor and related expenses of $195,000 with $125,000 being settled in cash and $70,000 in accrued salaries. The cost of labor is expected to increase in conjunction with expansion of operations.

 

 19 
 

The cost of rent decreased $13,000 from $36,000 for the three months ended September 30, 2019 to $23,000 for the three months ended September 30, 2020. The Company leases 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 pays 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, is now May 31, 2021. In addition, the due date of certain other rent adjustments due April 8, 2020 was deferred.

 

Depreciation and amortization expenses decreased by approximately $2,000 for the three months ended September 30, 2020 compared to the three months ended September 30, 2019. Depreciation and amortization expenses are attributable to depreciation of the $217,000 of property and equipment and amortization of gaming assets and capitalized licensing rights in service during respective periods.

 

Professional fees decreased $3,000 from $15,000 for the three months ended September 30, 2019 to $12,000 for the three months ended September 30, 2020. Professional fees during the three months ended September 30, 2020 included $12,000 legal, accounting and other professional service needs. Professional fees during the three months ended September 30, 2019 included $14,000 in legal, accounting and other professional service needs and $1,000 for public relations.

 

Research and development costs during the three months ended September 30, 2020 were $0, compared to research and development costs of $8,000 during the three months ended September 30, 2019. In addition, during the three months ended September 2019, the Company received a credit for previously incurred development costs in the amount of $78,000.

 

Other general and administrative expenses decreased $55,000 for the three months ended September 30, 2020 compared to the three months ended September 30, 2019. The decrease can be attributed primarily to reductions in costs of insurance of $40,000, game operating costs of $9,000 and various other general and administrative cost reductions of $6,000.

 

The Company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $70,000 for the three months ended September 30, 2020. The company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $7,000 for the three months ended September 30, 2019. In addition, pursuant to an amended convertible note whereby the note holder agreed to waive any prior alleged or actual defaults under the note, the Company recorded a reversal of previously reported default interest and penalties of $49,000 during the three months ended September 30, 2020 and $59,000 during the three months ended September 30, 2019, with said reversals being reflected in total interest expense for the respective periods.

 

The Company sold certain office equipment for $3,000 which resulted in a gain on disposition of assets of $1,000 for the three months ended September 30, 2020.

 

During September 2020 the Company recognized an impairment loss of $25,000 on gaming assets and recorded as a loss on write down of assets in the consolidated statement of operations for the three months ended September 30, 2020.

 

The Company had unrealized losses on trading securities of $1,000 for the three months ended September 30, 2020 compared to unrealized losses of $1,000 for the three months ended September 30, 2019. Unrealized gains and losses are the result of fluctuations in the quoted market price of the underlying securities at the respective reporting dates.

 

  

 

 

 

 

 

 

 

 

 

 

 

 20 
 

COMPARISON OF THE NINE MONTHS ENDED SEPTEMBER 30, 2020 TO 2019

 

The consolidated results of continuing operations for the nine months ended September 30, 2020 and 2019 are as follows:

 

   Digital Media  Corporate  Consolidated
          
For the Nine Months Ended September 30 2020         
Revenues  $4,000   $—     $4,000 
Related party service revenues   —      185,000    185,000 
Labor and related expenses   (8,000)   (479,000)   (487,000)
Rent   —      (88,000)   (88,000)
Depreciation and amortization   —      (28,000)   (28,000)
Professional fees   —      (65,000)   (65,000)
Research and development   —      —      —   
Other general and administrative   (41,000)   (142,000)   (183,000)
Operating loss   (45,000)   (617,000)   (662,000)
                
Interest Expense   (32,000)   (148,000)   (180,000)
Gain on disposition of assets   —      2,000    2,000 
Write-down of assets   (25,000)   —      (25,000)
SBA EIDL grant   —      3,000    3,000 
Unrealized gain (loss) on trading securities   —      —      —   
Other expense   (57,000)   (143,000)   (200,000)
Loss from continuing operations  $(102,000)  $(760,000)  $(862,000)

 

 

   Digital Media  Corporate  Consolidated
For the Nine Months Ended September 30 2019         
Revenues  $44,000   $—     $44,000 
Related party service revenues   —      60,000    60,000 
Labor and related expenses   (147,000)   (569,000)   (716,000)
Rent   (1,000)   (109,000)   (110,000)
Depreciation and amortization   (5,000)   (28,000)   (33,000)
Professional fees   —      (81,000)   (81,000)
Research and Development   44,000    —      44,000 
Other general and administrative   (53,000)   (195,000)   (248,000)
Operating loss   (118,000)   (922,000)   (1,040,000)
                
Interest Expense   (29,000)   (154,000)   (183,000)
Unrealized loss on trading securities   —      (3,000)   (3,000)
Other expense   (29,000)   (157,000)   (186,000)
Loss from continuing operations  $(147,000)  $(1,079,000)  $(1,226,000)

 

 

 21 
 

Results of Operations

 

For the nine months ended September 30, 2020 the Company had a loss from continuing operations of $862,000 compared to a loss from continuing operations of $1,226,000 for the nine months ended September 30, 2019. This change is due primarily to increases in revenue of $85,000 and decreases in labor and related expenses of $229,000, rent of $22,000, depreciation and amortization of $5,000, professional fees of $16,000, other general and administrative costs of $65,000 and interest of $3,000 during the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019. Other items contributing to the change included increases in research and development of $44,000, increases in gain on disposition of assets of $2,000, SBA EIDL grant of $3,000, and loss on write-down of assets of $25,000.

 

More detailed explanation of the nine months ended September 30, 2020 and 2019 changes are included in the following discussions.

 

Total Revenues - For the nine months ended September 30, 2020 and 2019, the Company had total revenue of $189,000 and $104,000, respectively, for an increase of $85,000. This change is primarily due to increased related party service revenues, partially offset by reduced games revenues.

 

Related Party Service Revenues - During the nine months ended September 30, 2020 and 2019, the Company received $185,000 and $60,000, respectively, in revenue for professional services rendered to related parties. During 2020, the Company received $185,000 in revenue for professional services rendered to Berkshire Capital Management Co., Inc, a company controlled by the majority shareholder and former chairman of the board of directors of the Company. During 2019, the Company, received $60,000 in revenue for professional services rendered to a related Limited Liability Company whose managers are also officers of SPYR, Inc. and whose majority owner is Berkshire Capital Management Co., Inc.

 

Games Revenues – During the nine months ended September 30, 2020 and 2019, the Company received $4,000 and $44,000, respectively in revenue from games.

 

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 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.

 

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 for services. For the nine months ended September 30, 2020 the company had total labor and related expenses of $487,000 with $125,000 being settled in cash and $337,000 in accrued salaries and $25,000 being paid in restricted stock recorded at fair value. For the nine months ended September 30, 2019 the company had total labor and related expenses of $716,000 with $377,000 being settled in cash, $208,000 in accrued salaries and $131,000 being paid in restricted stock and vesting of options recorded at fair value. The cost of labor is expected to increase in conjunction with expansion of the digital media operations.

 

The cost of rent decreased $22,000 from $110,000 for the nine months ended September 30, 2019 to $88,000 for the nine months ended September 30, 2020. The Company leases 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 pays 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, is now May 31, 2021. In addition, the due date of certain other rent adjustments due April 8, 2020 was deferred.

 

Depreciation and amortization expenses decreased by approximately $5,000 for the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019. Depreciation and amortization expenses are attributable to depreciation of the $217,000 of property and equipment and amortization of gaming assets and capitalized licensing rights in service during respective periods.

 

Professional fees decreased $16,000 from $81,000 for the nine months ended September 30, 2019 to $65,000 for the nine months ended September 30, 2020. Professional fees during the nine months ended September 30, 2020 included $64,000 legal, accounting and other professional service needs and $1,000 for public relations. Professional fees during the nine months ended September 30, 2019 included $72,000 in legal, accounting and other professional service needs and $9,000 for public relations.

 22 
 

Research and development costs during the nine months ended September 30, 2020 were $0, compared to research and development costs of $34,000 during the nine months ended September 30, 2019. In addition, during the nine months ended September 2019, the Company received a credit for previously incurred development costs in the amount of $78,000.

 

Other general and administrative expenses decreased $65,000 for the nine months ended September 30, 2020 compared to the nine months ended September 30, 2019. The decrease can be attributed primarily to reductions in costs of insurance of $46,000, game operating costs of $11,000 and various other general and administrative cost reductions of $8,000.

 

The Company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $180,000 for the nine months ended September 30, 2020. The company had interest expense on a related party line of credit, related party short-term advances, convertible notes payable and accrued expenses of $183,000 for the nine months ended September 30, 2019. In addition, pursuant to an amended convertible note whereby the note holder agreed to waive any prior alleged or actual defaults under the note, the Company recorded a reversal of previously reported default interest and penalties of $49,000 during the nine months ended September 30, 2020 and $146,000 during the nine months ended September 30, 2019, with said reversals being reflected in total interest expense for the respective periods.

 

The Company sold certain office equipment for $8,000 which resulted in a gain on disposition of assets of $2,000 for the nine months ended September 30, 2020.

 

During September 2020 the Company recognized an impairment loss of $25,000 on gaming assets and recorded as a loss on write down of assets in the consolidated statement of operations for the nine months ended September 30, 2020.

 

The Company received a $3,000 Economic Injury Disaster Loan (EIDL) grant from the U.S. Small Business Administration during the for the nine months ended September 30, 2020.

 

The Company had unrealized gains on trading securities of $0 for the nine months ended September 30, 2020 compared to unrealized losses of $3,000 for the nine months ended September 30, 2019. 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 from continuing operations for the nine months ended September 30, 2020 of $862,000. As of September 30, 2020, the Company had current assets of $25,000, which included cash and cash equivalents of $8,000, accounts receivable of $14,000, prepaid expenses of $2,000 and trading securities of $1,000.

 

During the nine months ended September 30, 2020, the Company has met its capital requirements through collection of revenues and accounts receivable, from the proceeds of SBA PPP note payable and SBA EIDL grant, and from the sale of certain office equipment.

 

The Company currently does not have sufficient cash and liquidity to meet its anticipated working capital for the next twelve months. However, on October 5, 2020, the Company issued a five-year $500,000 convertible note bearing interest at 8% per annum. The note is convertible at the holder’s request into the Company’s restricted common stock at the lesser of $0.25 or 70% of the three lowest Variable Weighted Average Price (“VWAP”) for the Company’s common stock during the 20-trading day period immediately prior to the conversion date. On October 5, 2020 the Company deposited the $500,000. The noteholder was also granted detachable 5-year warrants to purchase 1,000,000 shares of the company’s restricted common stock at an exercise price of $0.25 per share. As part of the agreement, the Company will receive an additional $500,000 in exchange for the issuance of another 5-year 8% convertible note, with the same terms and issue another 1,000,000 warrants upon the filing of a registration statement covering the shares underlying the convertible notes and warrants.

 

In addition, the Company entered into a five-year Equity Line of Credit pursuant to an Equity Purchase Agreement dated September 30, 2020. Pursuant to the agreement, the investor 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.

 

 23 
 

The Company expects to avail itself of these funding opportunities to fund future development and expansion along with cash flows from operations and other forms of financing such as the sale of additional equity and debt securities, capital leases and other credit facilities. If our sales goals for our products do not materialize as planned, we believe that the Company can reduce its operating and product development costs 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 nine months ended September 30, 2020, the Company used cash in operating activities of $79,000. For the nine months ended September 30, 2019, the Company used cash in operating activities of $737,000. Operating activities consist of corporate overhead and development of our mobile games and applications. Decreases are due to a combination of increased revenues and decreases in operating expenses. See the above results of operations discussion for more details.

 

Investing Activities - During the nine months ended September 30, 2020, the Company purchased property and equipment for $5,000 and sold property and equipment for $8,000. The Company had no investing activities during the nine months ended September 30, 2019.

 

Financing Activities - During the nine months ended September 30, 2020, the Company borrowed $71,000 from the U.S. Small Business Administration pursuant to the Paycheck Protection Program and received a $3,000 Economic Injury Disaster Loan (EIDL) grant from the U.S. Small Business Administration. Subsequent to September 30, 2020, the Company received $500,000 pursuant to a convertible note agreement entered into as of September 30, 2020 which funded on October 5, 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.

 

Revenue Recognition

 

We determine revenue recognition by: (1) identifying the contract, or contracts, with our customer; (2) identifying the performance obligations in the contract; (3) determining the transaction price; (4) allocating the transaction price to performance obligations in the contract; and (5) recognizing revenue when, or as, we satisfy performance obligations by transferring the promised goods or services.

 

Game Revenues

 

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. The Company’s dedicated mobile gaming applications can be downloaded through the app stores maintained by Apple and Google. The Company’s cross platform gaming application, which can be played on personal computers, Facebook and mobile devices, can be downloaded from the internet and Facebook as well as through the app stores maintained by Google and Amazon.

 

 24 
 

We operate our games as live services that allow players to play for free. Within these games players can purchase virtual items to enhance their game-playing experience. Our identified performance obligation is to display the virtual items within the game. Payment is required at time of purchase and the purchase price is a fixed amount.

 

Players can purchase our virtual items through various widely accepted payment methods offered in the games, including Apple iTunes accounts, Google Play accounts, Facebook local currency payments, PayPal and credit cards. Payments from players for virtual items are non-refundable and relate to non-cancellable contracts that specify our obligations.

 

For revenue earned through app stores, players utilize the app store’s local currency-based payments program to purchase virtual items in our games. For all payment transactions on these app store platforms, the app store remits to us 70% of the price we request to be charged to the player for each transaction, which represents the transaction price. We recognize revenue net of the amounts retained by the app stores for platform and payment processing fees.

 

Service Revenues

 

Our professional services arrangements are either fixed-fee billing or time-and-material billing arrangements. In fixed-fee billing arrangements, we agree to a predetermined fee for a predetermined set of professional services. We set the fee based upon our estimate of the time and costs necessary to complete the engagements. Under time-and-materials billing arrangements, the fee is based on the number of hours worked at the agreed upon billing rates. We recognize service revenue upon completion of the service.

 

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.

 

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.

 

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.

 25 
 

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 September 30, 2020, 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 directors and independent audit committee.

 

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.

 

 

 26 
 

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 liability is reported as part of accounts payable and accrued liabilities on the accompanying condensed consolidated balance sheets as of September 30, 2020 and December 31, 2019 and was recorded as litigation settlement costs on the consolidated statements of operations on the Company’s form 10K for the year ended December 31, 2019.

 

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]

 

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 September 30, 2020 and December 31, 2019 was approximately $94,000 and $90,000, respectively.

 

[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. 

 27 
 

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.

 

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 **
10.5 Equity Purchase Agreement dated September 30, 2020(1)
10.6 Registration Rights Agreement dated September 30, 2020**
10.7 Stock Purchase Agreement for the acquisition of Applied MagiX dated October 20, 2020**
14 Code of Ethics (1)
21 Subsidiaries of the Company **
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. 

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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: November 16, 2020

 

  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)

 

 

 

 

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