ITEM
1A. Risk Factors
Before
deciding to purchase, hold or sell our common stock, you should carefully consider the risks described below in addition to the other
information contained in this Quarterly Report on Form 10-Q and in our other filings with the SEC, including subsequent reports on Forms
10-Q and 8-K. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our business. If any of these known or unknown risks or uncertainties
actually occurs with material adverse effects on us, our business, financial condition, results of operations and/or liquidity
could be seriously harmed. In that event, the market price for our common stock will likely decline, and you may lose all or part of
your investment.
Risks
Related to Our Business and Industry
The
COVID-19 pandemic has had, and will likely continue to have, a significant negative impact on our business, sales, results of operations
and financial condition.
The
COVID-19 pandemic has had a widespread and detrimental effect on the global economy, particularly in the U.S. since 2020, but to a lesser
extent in 2023. The repercussions of COVID-19 is likely to continue to have, a material and substantial adverse impact on our results
of operations, including a decrease in our sales and delays in sourcing raw materials from suppliers.
In
addition, COVID-19 adversely affected the economies and financial markets of many countries, which may affect our level of
indebtedness, our need to generate sufficient cash flows to service our indebtedness and our ability to comply with the covenants
contained in the agreements that govern our indebtedness. In the event of a sustained market deterioration and continued declines in
net sales, and other repercussions of COVID-19, we may need additional liquidity. The need for additional liquidity may also be
affected by the federal government’s potential failure to raise the debt ceiling or correct a prolonged banking or financial
crisis. Such disruptions may impact the broader capital markets, and in turn, may impact our ability to access those markets. We
cannot provide any assurance that we will be able to obtain additional sources of financing or liquidity on acceptable terms, or at
all.
The
ultimate impact of the COVID-19 pandemic on our business and results of operations remains unknown and will depend on future developments,
which are highly uncertain and cannot be predicted with confidence, including the duration and potential resurgence of COVID-19, repeat
or cyclical outbreaks and any additional preventative and protective actions that governments, or we, or our customers, or our suppliers
may direct, which may result in an extended period of continued business disruption and reduced operations. Any resulting financial impact
cannot be reasonably estimated at this time, but we expect it will continue to have a material impact on our business, financial condition
and results of operations.
Terrorist
attacks and threats of war may impact all aspects of our operations, revenues, costs and stock price in unpredictable ways.
The
recent special military actions of the Russian Federation and its invasion of Ukraine and the resulting geopolitical uncertainty are
likely to have a significant impact on the European Union, the United Kingdom and other countries, including the U.S. The threat that
these military operations may expand beyond Ukraine may have a negative impact as well. Significant increases in the price of oil and
natural gas have occurred and are likely to continue putting additional inflationary pressures on central banks, including Federal Reserve
System (the “FRB”). It is expected that interest rate hikes already announced by the FRB will occur in 2023, but the amount,
timing, and frequency of such increases are not fully known at this time. The Russian Federation has also threatened increased cyberattacks
as part of its recent actions which could affect banks in the U.S. and their customers. Additionally, the United States and European
nations have imposed very significant financial sanctions on the Russian Federation, including targeted sanctions on Russian banks and
wealthy individuals as well as halting certification of the Nord Stream 2 gas pipeline. They have denied Russian banks access the Society
for Worldwide Interbank Financial Telecommunications or SWIFT which is expected to slow international trade and make such transactions
costlier to accomplish which could also negatively affect banks in the U.S. and their customers. In response to the Russian military
actions, many businesses headquartered in the Eurozone and the United States have stopped doing business with Russia, which may negatively
affect the profitability of those companies. The international turmoil has already had and may continue to have a negative impact on
the stock market generally and, in turn, on our stock price. The full impact of the recent actions by the Russian Federation regarding
Ukraine are not known at this time, but they could have a material adverse impact on our business, financial condition, results of operations,
and stock price.
We
have incurred significant losses in the past and we may incur losses in the future, which may hamper our operations and impede us from
expanding our business.
We
have incurred significant losses in the past. For the quarter ended March 31, 2023, we incurred net loss of approximately $1,113. For
the years ended December 31, 2022 and 2021, we incurred consolidated net losses of approximately $5,584 and $1,414, respectively. We
may incur net and gross losses in the future. We expect to rely on cash on hand, cash, if any, generated from our operations, borrowing
availability under our line of credit and proceeds from our future financing activities, if any, to fund all of the cash requirements
of our business. Additional losses may hamper our operations and impede us from expanding our business.
We
are dependent on, and derive substantially all of our revenue from, sales of our DC base power systems to one customer within the U.S.
telecommunications market. Our efforts to expand our customer base, our product portfolio or markets within which we operate may not
succeed and may reduce our revenue growth rate.
We
derive substantially all our revenues from sales of our DC base power systems to one customer within the telecommunications market, AT&T.
The volume of sales to them may vary significantly from year to year. Any factor adversely affecting sales of these power systems to
this customer or to other customers within this market, including market acceptance, product competition, performance and reliability,
reputation, price competition and economic and market conditions, could adversely affect our business and results of operations.
In
addition, any unfavorable change in our business relationship with our Tier-1 telecommunications wireless carrier customers, or delays
in customer implementation and deployment of our products, could have a material adverse effect on our results of operation and financial
condition. Our plans to invest in the development of electric vehicle chargers, residential and commercial power products and higher
capacity DC hybrid solar systems may not result in an anticipated growth in sales and may reduce our revenue growth rate.
Many
of our DC power systems involve long design and sales cycles, which could have an adverse impact on our results of operations and financial
performance.
The
design and sales cycle for our DC power systems, from initial contact with our potential customer to the shipments of our product, may
be lengthy. Customers generally consider a wide range of factors before making a purchase decision. Prior to purchasing our products,
many of our customers often require a significant technical review, tests and evaluations over long periods of time (i.e., three to twenty-four
months), assessments of competitive products and approval at a number of management levels within their organization. During the time
our customers are evaluating our products, we may incur substantial sales and service, engineering and research and development expenses
to customize our products to meet customer’s application needs. We may also expend significant management efforts, increase manufacturing
capacity, order long-lead-time components or purchase significant amounts of components and other inventory prior to receiving an order.
Even after this evaluation process, a potential customer may not purchase our products.
The
product development time before a customer agrees to purchase our DC power systems can be considerable. Our process for developing an
integrated solution may require use of significant engineering resources, including design, prototyping, modeling, testing and application
engineering. The length of this cycle is influenced by many factors, including the difficulty of the technical specification and complexity
of the design and the customer’s procurement processes. A significant period may elapse between our investment of time and resources
in designing and developing a product for a customer and receipt of revenue from sales of that product. The length of this process, combined
with unanticipated delays in the development cycles and the effects of COVID-19 on our ability to demonstrate our products to current
and potential customers could materially affect our results of operations and financial conditions.
We
do not have long-term commitments for significant revenues with most of our customers and may be unable to retain existing customers,
attract new customers or replace departing customers with new customers that can provide comparable revenues and profits.
Because
we generally do not obtain firm, long-term volume purchase commitments from our customers, most of our sales are derived from individual
purchase orders. We remain dependent upon securing new purchase orders in the future in order to sustain and grow our revenues. Accordingly,
there is no assurance that our revenues and business will grow in the future. Our failure to maintain and expand our customer relationships
could materially and adversely affect our business and results of operations.
The
current high concentration of our sales within the telecommunications market could result in a significant reduction in sales and negatively
affect our profitability if demand for our DC power systems declines within this market before we are able to make significant inroads
with our diversification of markets and customers.
Currently,
we are predominately focused on the manufacturing, marketing and sales of DC power systems to telecommunications companies. We may be
unable to shift our business focus away from these activities to other potential markets for our products. Accordingly, the emergence
of new competing DC power products or lower-cost alternative technologies within the telecommunications market may reduce the demand
for our products. A downturn in the demand for our DC power systems within this market could materially and adversely affect our sales
and results of operations.
We
face inventory risk and may be required to write-off inventory in the future.
We
value inventories at the lower of cost or net realizable value. If the estimated net realizable value is determined to be less than the
recorded cost of the inventory, a provision is made to reduce the carrying amount of the inventory item to the lower net realizable value
determination. Determination of the net realizable value may be complex, and therefore, requires management to make assumptions and to
apply a high degree of judgment. In order for management to make the appropriate determination of net realizable value, the following
items are commonly considered: inventory turnover statistics, inventory quantities on hand in our facilities, unfilled customer order
quantities, forecasted consumer demand, current prices, competitive pricing, seasonality factors, consumer trends and performance of
similar products or accessories. Subsequent changes in facts or circumstances do not result in the reversal of previously recorded write-downs.
If
our estimates regarding net realizable value are inaccurate, including our estimates regarding our inventory, or changes in customer
demand for our products in an unforeseen manner, we may experience additional write-downs of our inventory.
The
unavailability or shortage, or increase in the cost, of raw materials and components could have an adverse effect on our sales and profitability.
Our
operations require raw materials, such as aluminum, copper, engines, electronics, and permanent magnets. Commodities such as aluminum
and copper are known to have significant price volatility based on global economic conditions. An increase in global economic outlook
may result in significant price increases in the cost of our raw materials. In addition, we use Neodymium permanent magnets in our alternators,
for which there are a limited number of global suppliers that can meet our standards. Increase in manufacturing of electric vehicles
worldwide can have an adverse effect on the cost or supply of these magnets. At our current production volumes, we are unable to secure
large quantities of these commodities at fixed prices; however, we do have multiple sources of supply for our raw materials to meet our
near term forecasted needs. Various factors could reduce the availability of raw materials and components and shortages may occur from
time to time in the future. An increase in lead times for the supply of raw materials due to a global increase in demand for commodities
or other reasons may significantly increase the timing of receipt of such materials and/or increase the material costs of our products.
For example, as a result of the COVID-19 pandemic, we are currently experiencing both delays in sourcing, and price increases of, certain
key components. As a result of these delays, our standard eight-week delivery time has increased to fourteen weeks. In addition, if production
was interrupted due to unavailability or shortage of raw materials and we were not able to find alternate third-party suppliers or re-engineer
our products to accommodate different components or materials, we could experience disruptions in manufacturing and operations including
product shortages, higher freight costs and re-engineering costs. If our supply of raw materials or components continues to be disrupted
or our lead times extended, our business, results of operations or financial condition could be materially adversely affected.
The
markets within which we compete are highly competitive. Many of our competitors have greater financial and other resources than we do
and one or more of these competitors could use their greater financial and other resources to gain market share at our expense.
If
our business continues to develop as expected, we anticipate that we will grow our revenues in the near future. If, due to capital constraints
or otherwise, we are unable to fulfill our existing backlog in a timely manner and/or procure and timely fulfill our anticipated future
backlog, our customers and potential customers may decide to use competing DC power systems or continue the use of AC power systems.
If we are unable to fulfill the demand for products and services in a timely manner, our customers and potential customers may choose
to purchase products from our competitors. Some of our larger competitors may be willing to reduce prices and accept lower margins in
order to compete with us. In addition, we could face new competition from large international or domestic companies with established
industrial brands and distribution networks that enter our end markets. Demand for our products may also be affected by our ability to
respond to changes in design and functionality, to respond to downward pricing pressure, and to provide shorter lead times for our products
than our competitors. If we are unable to respond successfully to these competitive pressures, we could lose market share, which could
have an adverse impact on our results. We cannot assure that we will be able to compete successfully in our markets or compete effectively
against current and new competitors as our industry continues to evolve.
Rapid
technological changes may prevent us from remaining current with our technological resources and maintaining competitive product and
service offerings.
The
markets in which we and our customers operate are characterized by rapid technological change, especially within the telecommunications
market. Significant technological changes could render our existing and potential new products, services and technology obsolete. Our
future success will depend, in large part, upon our ability to:
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effectively identify and
develop leading energy efficient technologies; |
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continue to develop our
technical expertise; |
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enhance our current products
and services with new, improved and competitive technology; and |
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respond to technological
changes in a cost-effective and timely manner. |
If
we are unable to successfully respond to technological change or if we do not respond to it in a cost-effective and timely manner, then
our business will be materially and adversely affected. We cannot assure you that we will be successful in responding to changing technology.
In addition, technologies developed by others may render our products, services and technology uncompetitive or obsolete. Even if we
do successfully respond to technological advances, the integration of new technology may require substantial time and expense, and we
cannot assure you that we will succeed in adapting our products, services and technology in a timely and cost-effective manner.
If
we are unable to continue to develop new and enhanced products and services that achieve market acceptance in a timely manner, our competitive
position and operating results could be harmed.
Our
future success will depend on our ability to continue to develop new and enhanced DC power systems and related products and services
that achieve market acceptance in a timely and cost-effective manner. The markets in which we and our customers operate are characterized
by frequent introductions of new and enhanced products and services, evolving industry standards and regulatory requirements, government
incentives and changes in customer needs. The successful development and market acceptance of our products and services depends on a
number of factors, including:
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the impact of the COVID-19
pandemic on the global markets; |
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the changing requirements and preferences of the potential
customers in our markets; |
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the accurate prediction of market requirements, including
regulatory issues; |
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the timely completion and introduction of new products
and services to avoid obsolescence; |
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the quality, price and performance of new products
and services; |
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the availability, quality, price and performance of
competing products and services; |
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our customer service and support capabilities and responsiveness; |
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the successful development of our relationships with
existing and potential customers; and |
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changes in industry standards. |
We
may experience financial or technical difficulties or limitations that could prevent us from introducing new or enhanced products or
services. Furthermore, any of these new or enhanced products and services could contain problems that are discovered after they are introduced.
We may need to significantly modify the design of these products and services to correct problems. Rapidly changing industry standards
and customer preferences and requirements may impede market acceptance of our products and services.
Development
and enhancement of our products and services will require significant additional investment and could strain our management, financial
and operational resources. The lack of market acceptance of our products or services or our inability to generate sufficient revenues
from this development or enhancement to offset their development costs could have a material adverse effect on our business. In addition,
we may experience delays or other problems in releasing new products and services and enhancements, and any such delays or problems may
cause customers to forego purchases of our products and services and to purchase those of our competitors.
We
cannot provide assurance that products and services that we have recently developed or that we develop in the future will achieve market
acceptance. If our new products and services fail to achieve market acceptance, or if we fail to develop new or enhanced products and
services s that achieve market acceptance, our growth prospects, operating results and competitive position could be adversely affected.
Natural
disasters and other events beyond our control could materially adversely affect us.
Natural
disasters or other catastrophic events, including the COVID-19 pandemic, may cause damage or disruption to our operations, international
commerce and the global economy, and thus could have a strong negative effect on us. Our business operations are subject to interruption
by natural disasters, fire, power shortages, pandemics and other events beyond our control. Although we maintain crisis management and
disaster response plans, such events could make it difficult or impossible for us to deliver our services to our customers and could
decrease demand for our services.
We
are dependent on relationships with our key material suppliers, and the partial or complete loss of one of these key suppliers, or the
failure to find replacement suppliers or manufacturers in a timely manner, could adversely affect our business.
We have established relationships with third party engine suppliers and
other key suppliers from which we source components for our power systems. We purchase standard configurations of engines for our DC power
systems and are substantially dependent on timely supply from our key engine suppliers, Yanmar Engines Company (“Yanmar”),
Toyota Corporation (“Toyota”), and Perkins. Engines Company Limited (“Perkins”). Engines from Yanmar, Toyota and
Perkins represented 64%, 2%, and 31% our total engines sold as a component of our DC power systems during the three months ended March
31, 2023, respectively, and Yanmar represented approximately 100% of our total engines sold as components of our DC power systems during
the same period in 2022, respectively. We also use engines from Isuzu, Kubota and, to a lesser extent, Volvo Penta. In March 2022, we
received EPA certification on our 4Y Toyota engine, which is a larger engine model for used on our 20 to 30 kW DC power systems. We do
not have any long-term contracts or commitments with any of these suppliers. If any of these engine suppliers were to fail to provide
emissions certified engines in a timely manner or fail to supply engines that meet our quality, quantity or cost requirements, or were
to discontinue manufacturing any engines we source from them or discontinue providing any of these engines to us, or the supply chain
is interrupted or delayed as a result of the COVID-19 pandemic or unprecedented event, and we were unable to obtain substitute sources
in a timely manner or on terms acceptable to us, our ability to manufacture our products could be materially adversely affected.
Price
increases in some of the key components in our DC power systems could materially and adversely affect our operating results and cash
flows.
The
prices of some of the key components of our DC power systems are subject to fluctuation due to market forces beyond our control, including
changes in the costs of raw materials incorporated into these components. Such price increases occur from time to time due to spot shortages
of commodities, increases in labor costs or longer-term shortages due to market forces. In particular, the prices of engines can fluctuate
frequently and often significantly. We do not have any long-term contracts or commitments with our two key engine suppliers. Substantial
increases in the prices of raw materials used in components which we source from our suppliers may result in increased prices charged
by our suppliers. If we incur price increases from our suppliers for key components in our DC power systems, our production costs will
increase. Given competitive market conditions, we may not be able to pass all or any of those cost increases on to our customers in the
form of higher sales prices. To the extent our competitors do not suffer comparable component cost increases, we may have even greater
difficulty passing along price increases and our competitive position may be harmed. As a result, increases in costs of key components
may adversely affect our margins and otherwise adversely affect our operating results and cash flows.
A
portion of our key components are sourced in foreign countries, exposing us to additional risks that may not exist in the U.S.
A
portion of our key components, such as engines, magnets and cooling systems, are purchased from suppliers located overseas, primarily
in Asia. Our international sourcing subjects us to a number of potential risks in addition to the risks associated with third-party sourcing
generally. These risks include:
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inflation or changes in political and economic conditions; |
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unstable regulatory environments; |
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changes in import and export duties; |
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currency rate fluctuations; |
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trade restrictions; |
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labor unrest; |
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logistical and communications challenges; and |
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other restraints and burdensome taxes. |
These
factors may have an adverse effect on our ability to source our purchased components overseas. In particular, if the U.S. dollar were
to depreciate significantly against the currencies in which we purchase raw materials from foreign suppliers, our cost of goods sold
could increase materially, which would adversely affect our results of operations.
The
unavailability or shortage, or increase in the cost, of raw materials and components could have an adverse effect on our sales and profitability.
Our
operations require raw materials, such as aluminum, copper and permanent magnets. Commodities such as aluminum and copper are known to
have significant price volatility based on global economic conditions. An increase in global economic outlook may result in significant
price increases in the cost of our raw materials. In addition, we use Neodymium permanent magnets in our alternators, for which there
are a limited number of global suppliers that can meet our standards. Increase in manufacturing of electric vehicles worldwide can have
an adverse effect on the cost or supply of these magnets. At our current production volumes, we are unable to secure large quantities
of these commodities at fixed prices; however, we do have multiple sources of supply for our raw materials to meet our near term forecasted
needs. Various factors could reduce the availability of raw materials and components and shortages may occur from time to time in the
future. An increase in lead times for the supply of raw materials due to a global increase in demand for commodities outlined may significantly
increase material costs of our products. If production was interrupted due to unavailability or shortage of raw materials and we were
not able to find alternate third-party suppliers or re-engineer our products to accommodate different components or materials, we could
experience disruptions in manufacturing and operations including product shortages, higher freight costs and re-engineering costs. If
our supply of raw materials or components is disrupted or our lead times extended, our business, results of operations or financial condition
could be materially adversely affected.
We
manufacture and assemble a majority of our products at two facilities. Any prolonged disruption in the operations of this facility would
result in a decline in our sales and profitability.
We
manufacture and assemble our DC power systems at our two production facilities located in Gardena, California. Any prolonged disruption
in the operations of our manufacturing and assembly facilities, whether due to the COVID-19 pandemic, equipment or information technology
infrastructure failure, labor difficulties, destruction of or damage to one or both of these facilities as a result of an earthquake,
fire, flood, other catastrophes, and other operational problems would result in a decline in our sales and profitability. In the event
of a business interruption at our facilities, we may be unable to shift manufacturing and assembly capabilities to alternate locations,
accept materials from suppliers or meet customer shipment needs, among other severe consequences. Such an event could have a material
and adverse impact on our financial condition and results of our operations.
Our
business operations are subject to substantial government regulation.
Our
business operations are subject to certain federal, state, local and foreign laws and regulations. For example, our products, services
and technologies are subject to regulations relating to building codes, public safety, electrical connections, security protocols, and
local and state licensing requirements. The regulations to which we are subject may change, additional regulations may be imposed, or
existing regulations may be applied in a manner that creates special requirements for the implementation and operation of our products
or services that may significantly impact or even eliminate some of our revenues or markets. In addition, we may incur material costs
or liabilities in complying with any such regulations. Furthermore, some of our customers must comply with numerous laws and regulations,
which may affect their willingness and ability to purchase our products, services and technologies. Additionally, we are subject to laws,
regulations and other governmental actions instituted in response to the COVID-19 pandemic.
The
modification of existing laws and regulations or interpretations thereof or the adoption of future laws and regulations could adversely
affect our business, cause us to modify or alter our methods of operations and increase our costs and the price of our products, services
and technology. In addition, we cannot provide any assurance that we will be able, for financial or other reasons, to comply with all
applicable laws and regulations. If we fail to comply with these laws and regulations, we could become subject to substantial penalties
or restrictions that could materially and adversely affect our business.
Certain
of our products are used in critical communications networks which may subject us to significant liability claims.
Because
certain of our products for customers in the telecommunications industry are used in critical communications networks, we may be subject
to significant liability claims if our products do not work properly. We warrant to our customers that our products will operate in accordance
with our product specifications. If our products fail to conform to these specifications, our customers could require us to remedy the
failure or could assert claims for damages. The provisions in our agreements with customers that are intended to limit our exposure to
liability claims may not preclude all potential claims. In addition, any insurance policies we have may not adequately limit our exposure
with respect to such claims. Liability claims could require us to spend significant time and money in litigation or to pay significant
damages. Any such claims, whether or not successful, would be costly and time-consuming to defend, and could divert management’s
attention and seriously damage our reputation and our business.
We
could be adversely affected by our failure to comply with the laws applicable to our foreign activities, including the U.S. Foreign Corrupt
Practices Act and other similar worldwide anti-bribery laws.
The
U.S. Foreign Corrupt Practices Act, or the FCPA, and similar anti-bribery laws in other jurisdictions prohibit U.S.-based companies and
their intermediaries from making improper payments to non-U.S. officials for the purpose of obtaining or retaining business. We may pursue
opportunities in certain parts of the world that experience government corruption, and in certain circumstances, compliance with anti-bribery
laws may conflict with local customs and practices. Our policies mandate compliance with all applicable anti-bribery laws. Further, we
require our partners, subcontractors, agents and others who work for us or on our behalf to comply with the FCPA and other anti-bribery
laws. Although we have policies and procedures, and have conducted training, designed to ensure that we, our employees, our agents and
others who work with us in foreign countries comply with the FCPA and other anti-bribery laws, there is no assurance that such policies,
procedures or training will protect us against liability under the FCPA or other laws for actions taken by our agents, employees and
intermediaries. If we are found to be liable for FCPA violations (either due to our own acts or inadvertence, or due to the acts or inadvertence
of others), we could suffer from severe criminal or civil penalties or other sanctions, which could have a material adverse effect on
our reputation, business, results of operations or cash flows. In addition, detecting, investigating and resolving actual or alleged
FCPA violations is expensive and could consume significant time and attention of our senior management.
We
are exposed to risks related to our international sales, and the failure to manage these risks could harm our business. If we fail to
expand our business into international markets, our revenues and results of operations may be adversely affected.
In
addition to our sales to customers within the U.S., we may become increasingly dependent on sales to customers outside the U.S. as we
pursue expanding our business with customers worldwide. During the three months ended March 31, 2023 and 2022, our sales to international
customers accounted for 27% and 1%, respectively, of total revenue. We continue to expect that a significant portion of our future revenues
will be from international sales to customers in less developed or developing countries. As a result, the occurrence of any international,
political, economic, or geographic event could result in a significant decline in revenue. There are significant risks associated with
conducting operations internationally, requiring significant financial commitments to support such operations. These operations present
a number of challenges including oversight of daily operating practices in each location, handling employee benefits and employee behavior.
In addition, compliance with complex foreign and U.S. laws and regulations that apply to our international operations increases our cost
of doing business in international jurisdictions. These numerous and sometimes conflicting laws and regulations include internal control
and disclosure rules, data privacy and filtering requirements, anti-corruption laws, such as the FCPA, and other local laws prohibiting
corrupt payments to governmental officials, and anti-competition regulations, among others.
Violations
of these laws and regulations could result in fines and penalties, criminal sanctions against us, our officers, or our employees, prohibitions
on the conduct of our business and on our ability to offer our products and services in one or more countries, and could also materially
affect our brand, our international expansion efforts, our ability to attract and retain employees, our business, and our operating results.
Although we have implemented policies and procedures designed to ensure compliance with these laws and regulations, there can be no assurance
that our employees, contractors, or agents will not violate our policies.
Some
of the risks and challenges of doing business internationally include:
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the impact of the COVID-19
pandemic on the global markets and the power generation market with the international telecommunications markets; |
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requirements or preferences
for domestic products or solutions, which could reduce demand for our products; |
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unexpected changes in regulatory
requirements; |
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imposition of tariffs and
other barriers and restrictions; |
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restrictions on the import
or export of critical technology; |
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management communication
and integration problems resulting from cultural and geographic dispersion; |
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the burden of complying
with a variety of laws and regulations in various countries; |
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difficulties in enforcing
contracts; |
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the uncertainty of protection
for intellectual property rights in some countries; |
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application of the income
tax laws and regulations of multiple jurisdictions, including relatively low-rate and relatively high-rate jurisdictions, to our
sales and other transactions, which results in additional complexity and uncertainty; |
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tariffs and trade barriers,
export regulations and other regulatory and contractual limitations on our ability to sell products; |
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greater risk of a failure
of foreign employees to comply with both U.S. and foreign laws, including export and antitrust regulations, the FCPA and any trade
regulations ensuring fair trade practices; |
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heightened risk of unfair
or corrupt business practices in certain geographies and of improper or fraudulent sales arrangements that may impact financial results
and result in restatements of, or irregularities in, financial statements; |
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potentially
adverse tax consequences, including multiple and possibly overlapping tax structures;
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general economic and geopolitical conditions, including
war and acts of terrorism; |
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lack of the availability of qualified third-party financing;
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currency exchange controls. |
While
these factors and the impacts of these factors are difficult to predict, any one or more of them could adversely affect our business,
financial condition and results of operations in the future.
Cyberattacks
through security vulnerabilities could lead to disruption of business, reduced revenue, increased costs, liability claims, or harm to
our reputation or competitive position.
Security
vulnerabilities may arise from our hardware, software, employees, contractors or policies we have deployed, which may result in external
parties gaining access to our networks, data centers, cloud data centers, corporate computers, manufacturing systems, and/or access to
accounts we have at our suppliers, vendors, and customers. External parties may gain access to our data or our customers’ data
or attack the networks causing denial of service or attempt to hold our data or systems in ransom. The vulnerability could be caused
by inadequate account security practices such as failure to timely remove employee access when terminated. To mitigate these security
issues, we have implemented measures throughout our organization, including firewalls, backups, encryption, employee information technology
policies and user account policies. However, there can be no assurance these measures will be sufficient to avoid cyberattacks. If any
of these types of security breaches were to occur and we were unable to protect sensitive data, our relationships with our business partners
and customers could be materially damaged, our reputation could be materially harmed, and we could be exposed to a risk of litigation
and possible significant liability.
Further,
if we fail to adequately maintain our information technology infrastructure, we may have outages and data loss. Excessive outages may
affect our ability to timely and efficiently deliver products to customers or develop new products. Such disruptions and data loss may
adversely impact our ability to fulfill orders and interrupt other processes. Delayed sales or lost customers resulting from these disruptions
could adversely affect our financial results, stock price and reputation.
The
State of California enacted the California Consumer Privacy Act of 2018, or CCPA, effective on January 1, 2020. Our and our business
partners’ or contractors’ failure to fully comply with the CCPA and other laws could lead to significant fines and require
onerous corrective action. In addition, data security breaches experienced by us or our business partners or contractors could result
in the loss of trade secrets or other intellectual property, public disclosure of sensitive commercial data, and the exposure of personally
identifiable information (including sensitive personal information) of our employees, customers, suppliers, contractors and others.
Unauthorized
use or disclosure of, or access to, any personal information maintained by us or on our behalf, whether through breach of our systems,
breach of the systems of our suppliers or vendors by an unauthorized party, or through employee or contractor error, theft or misuse,
or otherwise, could harm our business. If any such unauthorized use or disclosure of, or access to, such personal information was to
occur, our operations could be seriously disrupted, and we could be subject to demands, claims and litigation by private parties, and
investigations, related actions, and penalties by regulatory authorities. In addition, we could incur significant costs in notifying
affected persons and entities and otherwise complying with the multitude of foreign, federal, state and local laws and regulations relating
to the unauthorized access to, or use or disclosure of, personal information. Finally, any perceived or actual unauthorized access to,
or use or disclosure of, such information could harm our reputation, substantially impair our ability to attract and retain customers
and have an adverse impact on our business, financial condition and results of operations.
Risks
Related to Our Intellectual Property
If
we fail to adequately protect our intellectual property rights, we could lose important proprietary technology, which could materially
and adversely affect our business.
Our
success and ability to compete depends, in substantial part, upon our ability to develop and protect our proprietary technology and intellectual
property rights to distinguish our products, services and technology from those of our competitors. The unauthorized use of our intellectual
property rights and proprietary technology by others could materially harm our business.
Historically,
we have relied primarily on a combination of trademark, copyright and trade secret laws, along with non-competition and confidentiality
agreements, contractual provisions, licensing arrangements and proprietary software and manufacturing processes, to establish and protect
our intellectual property rights. Although we hold several unregistered copyrights in our business, we believe that the success of our
business depends more upon our proprietary technology, information, processes and know-how than on patents or trademark registrations.
In addition, much of our proprietary information and technology may not be patentable; if we decided to apply for patents and/or trademarks
in the future, we might not be successful in obtaining any such future patents or in registering any marks.
Despite
our efforts to protect our intellectual property rights, existing laws afford only limited protection, and our actions may be inadequate
to protect our rights or to prevent others from claiming violations of their proprietary rights. Unauthorized third parties may attempt
to copy, reverse engineer or otherwise obtain, use or exploit aspects of our products and services, develop similar technology independently,
or otherwise obtain and use information that we regard as proprietary. We cannot assure you that our competitors will not independently
develop technology similar or superior to our technology or design around our intellectual property. In addition, the laws of some foreign
countries may not protect our proprietary rights as fully or in the same manner as the laws of the U.S.
We
may need to resort to litigation to enforce our intellectual property rights, to protect our trade secrets, and to determine the validity
and scope of other companies’ proprietary rights in the future. However, litigation could result in significant costs and in the
diversion of management and financial resources. We cannot assure you that any such litigation will be successful or that we will prevail
over counterclaims against us. Our failure to protect any of our important intellectual property rights or any litigation that we resort
to in order to enforce those rights could materially and adversely affect our business.
If
we face claims of intellectual property infringement by third parties, we could encounter expensive litigation, be liable for significant
damages or incur restrictions on our ability to sell our products and services.
Although
we are not aware of any present infringement of our products, services or technology on the intellectual property rights of others, we
cannot be certain that our products, services and technologies do not or in the future will not infringe on the valid intellectual property
rights held by third parties. In addition, we cannot assure you that third parties will not claim that we have infringed their intellectual
property rights.
In
recent years, there has been a significant amount of litigation in the U.S. involving patents and other intellectual property rights.
In the future, we may be a party to litigation as a result of an alleged infringement of others’ intellectual property. Successful
infringement claims against us could result in substantial monetary liability, require us to enter into royalty or licensing arrangements,
or otherwise materially disrupt the conduct of our business. In addition, even if we prevail on these claims, this litigation could be
time-consuming and expensive to defend or settle and could result in the diversion of our time and attention and of operational resources,
which could materially and adversely affect our business. Any potential intellectual property litigation also could force us to do one
or more of the following:
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stop selling, incorporating
or using our products and services that use the infringed intellectual property; |
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obtain from the owner of
the infringed intellectual property right a license to sell or use the relevant technology, which license may not be available on
commercially reasonable terms, or at all; or |
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redesign the products and
services that use the technology. |
If
we are forced to take any of these actions, our business may be seriously harmed. Although we carry general liability insurance, our
insurance may not cover potential claims of this type or may not be adequate to indemnify us for all liability that may be imposed.
Risks
Related to Our Common Stock
Our
operating results can fluctuate significantly from period to period, which makes our operating results difficult to predict and can cause
our operating results in any particular period to be less than comparable periods and expectations from time to time.
Our
operating results have fluctuated significantly from quarter-to-quarter, period-to-period and year-to-year during our operating history
and are likely to continue to fluctuate in the future due to a variety of factors, many of which are outside of our control. Certain
factors that may affect our operating results include, without limitation, those set forth under “Management’s Discussion
and Analysis of Financial Condition and Results of Operations — Critical Accounting Policies” in this Quarterly Report on
Form 10-Q.
Because
we have little or no control over many of these factors, our operating results are difficult to predict. Any adverse change in any of
these factors could negatively affect our business and results of operations.
Our
revenues, net income and other operating results are heavily dependent upon the size and timing of customer orders and projects, and
the timing of the completion of those projects. The timing of our receipt of large individual orders, and of project completion, is difficult
for us to predict. Because our operating expenses are based on anticipated revenues over the mid- and long-term and because a high percentage
of our operating expenses are relatively fixed, a shortfall or delay in recognizing revenues can cause our operating results to vary
significantly from quarter-to-quarter and can result in significant operating losses or declines in profit margins in any particular
quarter. If our revenues fall below our expectations in any particular quarter, we may not be able, or it may not be prudent for us,
to reduce our expenses rapidly in response to the revenue shortfall, which can result in us suffering significant operating losses or
declines in profit margins in that quarter.
Due
to these factors and the other risks discussed in this Quarterly Report on Form 10-Q, you should not rely on quarter-to-quarter, period-to-period
or year-to-year comparisons of our results of operations as an indication of our future performance. Quarterly, period and annual comparisons
of our operating results are not necessarily meaningful or indicative of future performance. As a result, it is likely that, from time
to time, our results of operations or our revenue backlog could fall below historical levels or the expectations of public market analysts
and investors, which could cause the trading price of our common stock to decline significantly.
Our
Chairman, President and Chief Executive Officer owns a significant percentage of our common stock and will exercise significant influence
over matters requiring stockholder approval, regardless of the wishes of other stockholders.
Our
Chairman, President, Chief Executive Officer and Secretary, Arthur D. Sams, beneficially owns approximately 43.4% of our outstanding shares
of common stock. Mr. Sams therefore has significant influence over management and significant control over matters requiring stockholder
approval, including the annual election of directors and significant corporate transactions, such as a merger or other sale of our company
or our assets, for the foreseeable future. This concentrated control may limit stockholders’ ability to influence corporate matters
and, as a result, we may take actions that our stockholders do not view as beneficial. As a result, the market price of our common stock
could be adversely affected.
The
price of our shares of common stock is volatile, and you could lose all or part of your investment.
The
trading price of our shares of common stock is volatile and could be subject to wide fluctuations in response to various factors, some
of which are beyond our control, including limited trading volume. In addition to the factors discussed in the “Risk Factors”
section and elsewhere in this Quarterly Report on Form 10-Q, these factors include, without limitation:
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competition from existing technologies and products
or new technologies and products that may emerge; |
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the loss of significant customers, including AT&T
and Verizon Wireless; |
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actual or anticipated variations in our quarterly operating
results; |
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failure to meet the estimates
and projections of the investment community or that we may otherwise provide to the public; |
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our cash position; |
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announcement or expectation
of additional financing efforts; |
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issuances of debt or equity
securities; |
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our inability to successfully
enter new markets or develop additional products; |
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actual or anticipated fluctuations
in our competitors’ operating results or changes in their respective growth rates; |
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sales of our shares of
common stock by us, or our stockholders in the future; |
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trading volume of our shares
of common stock on The Nasdaq Capital Market; |
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market conditions in our
industry; |
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overall performance of
the equity markets and general political and economic conditions; |
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introduction of new products
or services by us or our competitors; |
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additions or departures
of key management, engineering or other personnel; |
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publication of research
reports about us or our industry or positive or negative recommendations or withdrawal of research coverage by securities or industry
analysts; |
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changes in the market valuation
of similar companies; |
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disputes or other developments
related to intellectual property and other proprietary rights; |
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changes in accounting practices; |
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significant lawsuits, including
stockholder litigation; and |
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other events or factors,
many of which are beyond our control. |
Furthermore,
the public equity markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market
prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance
of those companies. These broad market and industry fluctuations, as well as general economic, political and market conditions such as
recessions, interest rate changes or international currency fluctuations, may negatively impact the market price of our shares of common
stock.
A
decline in the price of our common stock could affect our ability to raise further working capital, which could adversely impact our
ability to continue operations.
A
prolonged decline in the price of our common stock could result in a reduction in the liquidity of our common stock and a reduction in
our ability to raise capital. We may attempt to acquire a significant portion of the funds we need in order to conduct our planned operations
through the sale of equity securities; thus, a decline in the price of our common stock could be detrimental to our liquidity and our
operations because the decline may adversely affect investors’ desire to invest in our securities. If we are unable to raise the
funds we require for all of our planned operations, we may be forced to reallocate funds from other planned uses and may suffer a significant
negative effect on our business plan and operations, including our ability to develop new products or services and continue our current
operations. As a result, our business may suffer, and we may be forced to reduce or discontinue operations. We also might not be able
to meet our financial obligations if we cannot raise enough funds through the sale of our common stock and we may be forced to reduce
or discontinue operations.
We
do not anticipate paying cash dividends, and accordingly, stockholders must rely on stock appreciation for any return on their investment.
We
have never declared or paid cash dividends on our capital stock. We intend to retain a significant portion of our future earnings, if
any, to finance the operations, development and growth of our business. Any future determination to declare dividends will be made at
the discretion of our board of directors, subject to applicable laws, and will depend on number of factors, including our financial condition,
results of operations, capital requirements, contractual restrictions, general business conditions and other factors that our board of
directors may deem relevant. As a result, only appreciation of the price of our common stock, which may never occur, will provide a return
to stockholders.
If
securities or industry analysts do not publish research or reports or publish inaccurate or unfavorable research or reports about our
business, our share price and trading volume could decline.
The
trading market for our shares of common stock depends, in part, on the research and reports that securities or industry analysts publish
about us or our business. We do not have any control over these analysts. If no securities or industry analysts undertake coverage of
our company, the trading price for our shares of common stock may be negatively impacted. If we obtain securities or industry analyst
coverage and if one or more of the analysts who covers us downgrades our shares of common stock, changes their opinion of our shares
or publishes inaccurate or unfavorable research about our business, our share price would likely decline. If one or more of these analysts
ceases coverage of us or fails to publish reports on us regularly, demand for our shares of common stock could decrease and we could
lose visibility in the financial markets, which could cause our share price and trading volume to decline.
We
are not subject to the provisions of Section 203 of the Delaware General Corporation Law, which could negatively affect your investment.
We
elected in our certificate of incorporation to not be subject to the provisions of Section 203 of the Delaware General Corporation Law,
or Section 203. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person became
an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes
a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder”
is a person who, together with affiliates and associates, owns (or, in certain cases, within three years prior, did own) 15% or more
of the corporation’s voting stock. Our decision not to be subject to Section 203 will allow, for example, Arthur D. Sams, our Chairman,
President, Chief Executive Officer and Secretary (who beneficially owns approximately 43.4% of our common stock) to transfer shares in
excess of 15% of our voting stock to a third-party free of the restrictions imposed by Section 203. This may make us more vulnerable
to takeovers that are completed without the approval of our board of directors and/or without giving us the ability to prohibit or delay
such takeovers as effectively.
Some
provisions of our charter documents and Delaware law may have anti-takeover effects that could discourage an acquisition of us by others,
even if an acquisition would be beneficial to our stockholders, and may prevent attempts by our stockholders to replace or remove our
current management.
Provisions
in our certificate of incorporation and bylaws, as well as provisions of Delaware law, could make it more difficult for a third party
to acquire us or increase the cost of acquiring us, even if doing so would benefit our stockholders. These provisions include:
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a requirement that special
meetings of stockholders be called only by the board of directors, the president or the chief executive officer; |
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advance notice requirements
for stockholder proposals and nominations for election to our board of directors; and |
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the authority of the board
of directors to issue preferred stock on terms determined by the board of directors without stockholder approval and which preferred
stock may include rights superior to the rights of the holders of common stock. |
These
anti-takeover provisions and other provisions in our certificate of incorporation and bylaws could make it more difficult for stockholders
or potential acquirers to obtain control of our board of directors or initiate actions that are opposed by the then-current board of
directors and could also delay or impede a merger, tender offer or proxy contest involving our Company. These provisions could also discourage
proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing or cause us to take other
corporate actions you desire. Any delay or prevention of a change of control transaction or changes in our board of directors could cause
the market price of our common stock to decline.
Our
certificate of incorporation designates the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types
of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable
judicial forum for disputes with us or our directors, officers or other employees.
Our
certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery
of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii)
any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders,
(iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, our certificate of incorporation
or our bylaws, or (iv) any action asserting a claim against us governed by the internal affairs doctrine.
For
the avoidance of doubt, the exclusive forum provision described above does not apply to any claims arising under the Securities Act or the Exchange Act. Section 27 of the Exchange
Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the
rules and regulations thereunder, and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over
all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
The
choice of forum provision in our bylaws may limit our stockholders’ ability to bring a claim in a judicial forum that they find
favorable for disputes with us or our directors, officers, employees or agents, which may discourage such lawsuits against us and our
directors, officers, employees and agents even though an action, if successful, might benefit our stockholders. The applicable courts
may also reach different judgments or results than would other courts, including courts where a stockholder considering an action may
be located or would otherwise choose to bring the action, and such judgments or results may be more favorable to us than to our stockholders.
With respect to the provision making the Delaware Court of Chancery the sole and exclusive forum for certain types of actions, stockholders
who do bring a claim in the Delaware Court of Chancery could face additional litigation costs in pursuing any such claim, particularly
if they do not reside in or near Delaware. Finally, if a court were to find this provision of our bylaws inapplicable to, or unenforceable
in respect of, one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving
such matters in other jurisdictions, which could have a material adverse effect on us.
If
we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial
results or prevent fraud. As a result, stockholders could lose confidence in our financial and other public reporting, which would harm
our business and the trading price of our common stock.
Effective
internal controls over financial reporting are necessary for us to provide reliable financial reports and, together with adequate disclosure
controls and procedures, are designed to prevent fraud. Any failure to implement required new or improved controls, or difficulties encountered
in their implementation could cause us to fail to meet our reporting obligations. In addition, any testing by us conducted in connection
with Section 404 of the Sarbanes-Oxley Act, or any subsequent testing by our independent registered public accounting firm, may reveal
deficiencies in our internal controls over financial reporting that are deemed to be material weaknesses or that may require prospective
or retroactive changes to our financial statements or identify other areas for further attention or improvement. Inferior internal controls
could also cause investors to lose confidence in our reported financial information, which could have a negative effect on the trading
price of our common stock.
We
are required to disclose changes made in our internal controls and procedures on a quarterly basis and our management is required to
assess the effectiveness of these controls annually. However, for as long as we are a “non-accelerated filer” under SEC rules,
our independent registered public accounting firm will not be required to attest to the effectiveness of our internal controls over financial
reporting pursuant to Section 404. An independent assessment of the effectiveness of our internal controls could detect problems that
our management’s assessment might not. Undetected material weaknesses in our internal controls could lead to financial statement
restatements and require us to incur the expense of remediation.
We
incur significant costs as a result of operating as a public company and our management expects to devote substantial time to public
company compliance programs.
As
a public company, we incur significant legal, accounting and other expenses due to our compliance with regulations and disclosure obligations
applicable to us, including compliance with the Sarbanes-Oxley Act as well as rules implemented by the SEC and Nasdaq. The SEC and other
regulators have continued to adopt new rules and regulations and make additional changes to existing regulations that require our compliance.
In July 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Dodd-Frank Act, was enacted. There are significant
corporate governance and executive compensation related provisions in the Dodd-Frank Act that have required the SEC to adopt additional
rules and regulations in these areas. Stockholder activism, the current political environment, and the current high level of government
intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance
costs and impact, in ways we cannot currently anticipate, the manner in which we operate our business. Our management and other personnel
devote a substantial amount of time to these compliance programs and monitoring of public company reporting obligations and, as a result
of the new corporate governance and executive compensation related rules, regulations, and guidelines prompted by the Dodd-Frank Act
and further regulations and disclosure obligations expected in the future, we will likely need to devote additional time and costs to
comply with such compliance programs and rules. These rules and regulations cause us to incur significant legal and financial compliance
costs and make some activities more time-consuming and costly.
To
comply with the requirements of being a public company, we may need to undertake various activities, including implementing new internal
controls and procedures and hiring new accounting or internal audit staff. The Sarbanes-Oxley Act requires that we maintain effective
disclosure controls and procedures and internal control over financial reporting. We are continuing to develop and refine our disclosure
controls and other procedures that are designed to ensure that information required to be disclosed by us in the reports that we file
with the SEC is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and that information
required to be disclosed in reports under the Exchange Act, is accumulated and communicated to our principal executive and financial
officers. Our current controls and any new controls that we develop may become inadequate and weaknesses in our internal control over
financial reporting may be discovered in the future.
Any
failure to develop or maintain effective controls could adversely affect the results of periodic management evaluations and annual independent
registered public accounting firm attestation reports regarding the effectiveness of our internal control over financial reporting which
we may be required to include in our periodic reports we will file with the SEC under Section 404 of the Sarbanes-Oxley Act, harm our
operating results, cause us to fail to meet our reporting obligations, or result in a restatement of our prior period financial statements.
In the event that we are not able to demonstrate compliance with the Sarbanes-Oxley Act, that our internal control over financial reporting
is perceived as inadequate or that we are unable to produce timely or accurate financial statements, investors may lose confidence in
our operating results and the price of our common stock could decline. In addition, if we are unable to continue to meet these requirements,
we may not be able to remain listed on The Nasdaq Capital Market.
We
are not currently required to comply with the SEC rules that implement Section 404 of the Sarbanes-Oxley Act, and are therefore not yet
required to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. However,
we are required to comply with certain of these rules, which require management to certify financial and other information in our quarterly
and annual reports and provide an annual management report on the effectiveness of our internal control over financial reporting commencing
with our next annual report. This assessment will need to include the disclosure of any material weaknesses in our internal control over
financial reporting identified by our management or our independent registered public accounting firm. We are just beginning the costly
and challenging process of compiling the system and processing documentation needed to comply with such requirements. We may not be able
to complete our evaluation, testing and any required remediation in a timely fashion. During the evaluation and testing process, if we
identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal
control over financial reporting is effective.
Raising
additional capital, including through future sales and issuances of our common stock, the exercise of warrants or the exercise of rights
to purchase common stock pursuant to our equity incentive plan could result in additional dilution of the percentage ownership of our
stockholders, could cause our share price to fall and could restrict our operations.
We
expect that significant additional capital will be needed in the future to continue our planned operations, including any potential acquisitions,
purchasing of capital equipment, hiring new personnel, and continuing activities as an operating public company. To the extent we seek
additional capital through a combination of public and private equity offerings and debt financings, our stockholders may experience
substantial dilution. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership
interest of our existing stockholders may be diluted, and the terms may include liquidation or other preferences that adversely affect
the rights of our stockholders. Debt and receivables financings may be coupled with an equity component, such as warrants to purchase
shares of our common stock, which could also result in dilution of our existing stockholders’ ownership. The incurrence of indebtedness
would result in increased fixed payment obligations and could also result in certain restrictive covenants, such as limitations on our
ability to incur additional debt and other operating restrictions that could adversely impact our ability to conduct our business. A
failure to obtain adequate funds may cause us to curtail certain operational activities, including sales and marketing, in order to reduce
costs and sustain the business, and would have a material adverse effect on our business and financial condition.
Under
our 2016 Omnibus Stock Incentive Plan, as amended, or 2016 Plan, we may grant equity awards covering up to 1,754,385 shares of our common
stock. As of March 31, 2023, we had granted options to purchase an aggregate of 140,000 shares of common stock and issued 161,347 shares
of common stock as stock-based compensation to officers, employees and consultants under the 2016 Plan. We have registered 1,754,385
shares of common stock available for issuance under our 2016 Plan. Sales of shares issued upon exercise of options or granted under our
2016 Plan may result in material dilution to our existing stockholders, which could cause our share price to fall.
Our
issuance of shares of preferred stock could adversely affect the market value of our common stock, dilute the voting power of common
stockholders and delay or prevent a change of control.
Our
board of directors has the authority to cause us to issue, without any further vote or action by the stockholders, up to 5,000,000 shares
of preferred stock in one or more series, to designate the number of shares constituting any series, and to fix the rights, preferences,
privileges and restrictions thereof, including dividend rights, voting rights, rights and terms of redemption, redemption price or prices
and liquidation preferences of such series.
The
issuance of shares of preferred stock with dividend or conversion rights, liquidation preferences or other economic terms favorable to
the holders of preferred stock could adversely affect the market price for our common stock by making an investment in the common stock
less attractive. For example, investors in the common stock may not wish to purchase common stock at a price above the conversion price
of a series of convertible preferred stock because the holders of the preferred stock would effectively be entitled to purchase common
stock at the lower conversion price causing economic dilution to the holders of common stock.
Further,
the issuance of shares of preferred stock with voting rights may adversely affect the voting power of the holders of our other classes
of voting stock either by diluting the voting power of our other classes of voting stock if they vote together as a single class, or
by giving the holders of any such preferred stock the right to block an action on which they have a separate class vote even if the action
were approved by the holders of our other classes of voting stock. The issuance of shares of preferred stock may also have the effect
of delaying, deferring or preventing a change in control of our company without further action by the stockholders, even where stockholders
are offered a premium for their shares.