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Form 424B3 Guerrilla RF, Inc.

June 7, 2023 9:23 AM EDT

Table of Contents

 

 

Filed Pursuant to Rule 424(b)(3)

File No. 333-270980

PROSPECTUS

 

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11,930,190 Shares of Common Stock

 

______________________________

 

This prospectus relates to the offering and resale by the selling stockholders identified herein of up to 11,930,190 shares of common stock, par value $0.0001 per share (the “Common Stock”), of Guerrilla RF, Inc., which includes (i) an aggregate of 7,099,152 shares of Common Stock issued in the initial closing of the private placement offering on December 30, 2022 and in subsequent additional closings thereafter through February 28, 2023, (ii) an aggregate of 3,549,588 shares of Common Stock issuable upon the exercise of warrants issued to investors in connection with such offering, (iii) an aggregate of 1,064,872 shares of Common Stock issuable upon the exercise of warrants issued to the placement agent, its selected dealer and their affiliates in connection with such offering, (iv) 66,578 shares of Common Stock issued to IRTH Communications, LLC on February 7, 2023, and (v) 150,000 shares of Common Stock issued to Salem Investment Partners V, Limited Partnership on August 11, 2022.

 

We will not receive any proceeds from the sale of the shares of Common Stock by the selling stockholders. The selling stockholders may sell the shares of Common Stock offered by this prospectus from time to time through the means described in this prospectus under the caption “Plan of Distribution”. For a list of the selling stockholders, see the section entitled “Selling Stockholders” on page 64 of this prospectus. We have borne and will continue to bear the costs relating to the registration of these shares.

 

Shares of our Common Stock were cleared for trading on the OTCQX® marketplace under the symbol “GUER” and began trading on May 13, 2022.  We urge prospective purchasers of our Common Stock to obtain current information about the market prices of our Common Stock. The prices at which the selling stockholders may sell their shares of Common Stock will be determined by the prevailing market price for the shares of Common Stock or in negotiated transactions.

 

We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements carefully before you make your investment decision.

 

We are an emerging growth company and a smaller reporting company as defined under the federal securities laws and, as such, are eligible for reduced public company reporting requirements. See Prospectus Summary — Implications of Being an Emerging Growth Company and a Smaller Reporting Company.

 

Investing in our Common Stock involves a high degree of risk.  See Risk Factors beginning on page 7 of this prospectus.

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

 

 

The date of this prospectus is April 13, 2023.

 

 

TABLE OF CONTENTS

 

ABOUT THIS PROSPECTUS

ii

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

iii

PROSPECTUS SUMMARY

1

THE OFFERING

4

SUMMARY FINANCIAL DATA

6

RISK FACTORS

7

RISKS RELATED TO OUR BUSINESS AND INDUSTRY

9

RISKS RELATED TO REGULATORY REQUIREMENTS

21

RISKS RELATED TO OWNERSHIP OF OUR COMMON STOCK

23

USE OF PROCEEDS 26
DIVIDEND POLICY 27
DETERMINATION OF OFFERING PRICE 28
MARKET INFORMATION FOR OUR COMMON STOCK 29

DESCRIPTION OF OUR BUSINESS

30

MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

38

MANAGEMENT

47

EXECUTIVE COMPENSATION

55

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

59

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

62

SELLING STOCKHOLDERS

64

PLAN OF DISTRIBUTION

68

DESCRIPTION OF CAPITAL STOCK

70

SHARES ELIGIBLE FOR FUTURE SALE

74

LEGAL MATTERS

76

EXPERTS

76

WHERE YOU CAN FIND MORE INFORMATION

76

INCORPORATION BY REFERENCE

76

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

F-1

 

 

ABOUT THIS PROSPECTUS

 

We have not, and the selling stockholders have not, authorized anyone to give you any information other than the information contained in this prospectus, the information incorporated by reference herein, any applicable prospectus supplement or any free writing prospectus filed with the U.S. Securities and Exchange Commission (the “SEC”). We and the selling stockholders take no responsibility for, and can provide no assurances as to the reliability of, any other information that others may give you. Neither we nor the selling stockholders have authorized anyone to provide you with additional information or information different from that contained in this prospectus filed with the SEC. The selling stockholders are offering to sell, and seeking offers to buy, shares of our Common Stock only in jurisdictions where offers and sales are permitted. You should assume that the information appearing in this prospectus, the applicable prospectus supplement and any related free writing prospectus is accurate only as of the respective dates of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates.

 

For Non-U.S. investors

 

Neither we nor the selling stockholders have done anything that would permit this offering or possession or distribution of this prospectus, any prospectus supplement or free writing prospectus filed with the SEC, in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus, any prospectus supplement or free writing prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of Common Stock and the distribution of this prospectus, any prospectus supplement or free writing prospectus outside the United States.

 

TRADEMARKS AND TRADE NAMES

 

This prospectus includes trademarks that are protected under applicable intellectual property laws and are the Company’s property or the property of the Company’s subsidiary. This prospectus also contains trademarks, service marks, trade names and/or copyrights of other companies, which are the property of their respective holders. Solely for convenience, trademarks and trade names referred to in this prospectus may appear without the ® or TM symbols, but such references are not intended to indicate, in any way, that the Company will not assert, to the fullest extent under applicable law, its rights or the right of the applicable licensor to these trademarks and trade names. Use or display by us of other parties’ trademarks, trade dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or sponsorship of, us by the trademark or trade dress owners.

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus, including the sections entitled “Risk Factors,” “Managements Discussion and Analysis of Financial Condition and Results of Operations” and “Description of our Business”, includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (“the Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (“the Exchange Act”). Forward-looking statements relate to, among others, our plans, objectives and expectations for our business, operations and financial performance and condition, and can be identified by terminology such as “may,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “will,” “could,” “project,” “target,” “potential,” “continue” and similar expressions that do not relate solely to historical matters. Forward-looking statements are based on management’s belief and assumptions and on information currently available to management. Although we believe that the expectations reflected in forward-looking statements are reasonable, such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements.

 

Forward-looking statements include, but are not limited to, statements about:

 

 

we may not be able to generate sufficient cash to service all of our debt or meet our operating needs;

 

 

we may not be able to raise sufficient equity capital to support our operating needs and fund our strategic plans;

 

 

those relating to fluctuations in our operating results;

 

 

our dependence on developing new products, achieving design wins, and several large customers for a substantial portion of our revenue;

 

 

a loss of revenue if purchase contracts are canceled or delayed;

 

 

our dependence on third parties such as suppliers, product manufacturers, and product assemblers and testers;

 

 

risks related to sales through independent sales representatives and distributors;

 

 

risks associated with the operation of our third-party manufacturing providers;

 

 

anticipated trends, growth rates, and challenges in our business and in the markets in which we operate;

 

 

our ability to further penetrate our existing customer base;

 

 

our estimates regarding future revenues, capital requirements, general and administrative expenses, sales and marketing expenses, research and development expenses, and our need for or ability to obtain additional financing to fund our operations;

 

 

developments and projections relating to our competitors and our industry, including semiconductor availability, which has affected the automotive industry, impacting vehicle production and thereby demand irregularities for our business;

 

 

business disruptions;

 

 

poor manufacturing yields;

 

 

increased inventory risks and costs due to the timing of customer forecasts;

 

 

our ability to continue to innovate in a very competitive industry;

 

 

unfavorable changes in interest rates, pricing of certain precious metals, utility rates, and shipping and freight costs;

 

 

our strategic investments failing to achieve financial or strategic objectives;

 

 

our ability to attract, retain, and motivate key employees;

 

 

 

warranty claims, product recalls, and product liability;

 

 

changes in our effective tax rate and the enactment of international or domestic tax legislation, or changes in regulatory guidance;

 

 

risks associated with environmental, health and safety regulations, and climate change;

 

 

risks from international sales and third-party vendor operations;

 

 

the impact of, and our expectations regarding, changes in current and future laws and regulations;

 

 

changes in government trade policies, including the imposition of tariffs and export restrictions;

 

 

our ability to protect and enforce our intellectual property protection and the scope and duration of such protection;

 

 

claims of infringement of third-party intellectual property rights;

 

 

security breaches and other similar disruptions compromising our information;

 

 

theft, loss, or misuse of personal data by or about our employees, customers, or third parties;

 

 

our inability to remediate the material weakness identified in internal controls over financial reporting relating to certain control processes;

 

 

provisions in our governing documents and Delaware law may discourage takeovers and business combinations that our stockholders might consider to be in their best interests; and,

 

 

volatility in the price of our Common Stock.

 

These statements relate to future events or our future operational or financial performance and involve known and unknown risks, uncertainties, and other factors that may cause our actual results, performance, or achievements to be materially different from any future results, performance, or achievements expressed or implied by these forward-looking statements. Factors that may cause actual results to differ materially from current expectations include, among other things, those listed under the section titled “Risk Factors” and elsewhere in this prospectus, in any applicable prospectus supplement, and in any related free-writing prospectus.

 

Any forward-looking statement in this prospectus, in any applicable prospectus supplement, and in any related free writing prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties, and assumptions relating to our business, results of operations, industry, and future growth. Given these uncertainties, you should not place undue reliance on these forward-looking statements. No forward-looking statement is a guarantee of future performance. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus and the documents that we reference therein and have filed with the SEC as exhibits thereto completely and with the understanding that our actual future results may be materially different from any future results expressed or implied by these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.

 

This prospectus contains, any applicable prospectus supplement and any related free-writing prospectus may contain, estimates, projections, and other information concerning our industry, our business, and the markets for certain semiconductors. Information based on estimates, forecasts, projections, or similar methodologies is inherently subject to uncertainties, and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise expressly stated, we obtained these industry, business, market, and other data from reports, research surveys, studies, and similar data prepared by third parties, industry, medical and general publications, government data, and similar sources that we believe to be reliable. In some cases, we do not expressly refer to the sources from which such data are derived.

 

 

PROSPECTUS SUMMARY

 

This summary highlights certain information about us, this offering, and selected information contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in the securities covered by this prospectus. For a more complete understanding of the Company and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus, any related prospectus supplement, and any related free writing prospectus, including the information set forth in the section titled Risk Factors in this prospectus, any related prospectus supplement and any related free writing prospectus in their entirety before making an investment decision.

 

All references to “Guerrilla RF” refer to Guerrilla RF Operating Corporation, a privately held Delaware corporation, and our direct, wholly-owned subsidiary. Unless otherwise stated or the context otherwise indicates, references to the “Company”, “we”, “our”, “us” or similar terms refer to Guerrilla RF, Inc. (formerly named Laffin Acquisition Corp.) together with its wholly-owned subsidiary, Guerrilla RF. Guerrilla RF holds all material assets and conducts all business activities and operations of Guerrilla RF, Inc.

 

This prospectus includes a number of technical terms.  Please see “Glossary of Terms and Abbreviations” beginning on page 30.

 

Overview

 

Guerrilla RF is a fabless semiconductor company based in Greensboro, NC.  Guerrilla RF was founded in 2013 with a mission to employ RF semiconductor technology to deliver RF solutions to customers in underserved markets.  Over the past several years, Guerrilla RF has become a leader in developing high-performance MMIC products for wireless connectivity.  It continues to target underserved markets and customers, delivering a range of high-performance MMIC products and associated technical support to a diverse set of customers that enable a more connected world.

 

Guerrilla RF possesses in-house design, applications, sales, and customer support functions as a fabless semiconductor company.  It outsources the manufacture and production of its MMIC products to subcontractors located overseas, providing access to multiple semiconductor process technologies.  Guerrilla RF’s primary external wafer foundries are in Taiwan and Singapore, and its primary assembly and test suppliers are located in Malaysia and the Philippines.  We have produced and distributed in excess of 100 million products in our portfolio of products to over 500 end customers worldwide.

 

Our Industry

 

Global demand for ubiquitous, always-on connectivity has increased over the past several years, driving data traffic over wireless and wired networks.  We believe that wireless and wired markets are undergoing multi-year technology upgrade cycles to keep pace with this demand.

 

Cellular operators have been migrating to 5G technology to improve efficiency, increase data throughput, reduce signal latency, and enable massive machine-to-machine connectivity.  Because 5G networks operate on different frequencies (low-, mid-, and high-band spectrum) and coexist with prior cellular standards, we believe 5G deployments will increase the content opportunity for Guerrilla RF’s infrastructure RF products.

 

As an example, over the past several years, automakers have added more entertainment and safety features to their automobiles due in part to customer demands and in part due to increased demand for electric vehicles (EV) and an increasing focus on the development of autonomous vehicle technologies.  We expect this trend to continue to increase demand for RF semiconductors in modern automobiles.  We believe this trend offers a growing content opportunity for Guerrilla RF’s automotive RF products.

 

The COVID-19 pandemic has placed even more demand on the need for contactless and wireless communication in all aspects of human existence.  Our technology helps meet that demand and facilitates rapid and contactless communication.

 

Risks Related to Our Business and Industry

 

Our ability to implement our current business strategy is subject to numerous risks, as more fully described in the section titled “Risk Factors.” These risks include, among others, the following:

 

 

We have incurred significant losses in the past and will likely experience losses in the future;

 

 

We may be unable to find additional sources of capital to fund our operations;

 

 

Our sales have been concentrated in a small number of large end-user customers;

 

 

We depend on a number of third-party manufacturers of our products, and if we are unable to source manufacturing from them then our business and operating results could be harmed;

 

 

Our international customers subject us to additional risks that can adversely affect our business results of operations and financial condition; and

 

 

Our revenues, operating results, and reputation could suffer if we fail to successfully develop and introduce new products and features to existing products.

 

 

Merger Agreement

 

On October 22, 2021, our wholly-owned subsidiary, Guerrilla RF Acquisition Co., a corporation formed in the State of Delaware on October 20, 2021 (“Acquisition Sub”) and Guerrilla RF entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, on October 22, 2021 (the “Closing Date”), Acquisition Sub merged with and into Guerrilla RF, with Guerrilla RF continuing as the surviving corporation and our wholly-owned subsidiary (the “Merger”).

 

As a result of the Merger, we acquired the business of Guerrilla RF, a fabless semiconductor company based in Greensboro, N.C. See “Description of our Business” below. At the time the certificate of merger reflecting the Merger was filed with the Secretary of State of Delaware (the “Effective Time”), each of Guerrilla RF’s shares of capital stock issued and outstanding immediately prior to the closing of the Merger was converted into the right to receive approximately 2.95 shares of our Common Stock. Immediately prior to the Effective Time, an aggregate of 2,025,000 shares of our Common Stock owned by the stockholders of Laffin Acquisition Corp. prior to the Merger were forfeited and canceled. In addition, pursuant to the Merger Agreement, options to purchase 1,065,067 shares of Guerrilla RF’s common stock issued and outstanding immediately prior to the closing of the Merger under Guerrilla RF’s 2014 Long Term Stock Incentive Plan (the “2014 Plan”) were assumed and converted into options to purchase 3,146,366 shares of our Common Stock.

 

Following the closing of the Merger, Laffin Acquisition Corp. changed its name to Guerrilla RF, Inc.

 

See “Description of Capital Stock” below for more information. The issuance of shares of our Common Stock or options to purchase shares of our Common Stock, to Guerrilla RF’s former security holders are collectively referred to as the “Share Conversion.”

 

As a condition to the Merger, we entered into an indemnity agreement with our former officer and directors (the “Pre-Merger Indemnity Agreement”), pursuant to which we agreed to indemnify such former officers and directors for actions taken by them in their official capacities relating to the consideration, approval, and consummation of the Merger and certain related transactions.

 

The Merger was treated as a recapitalization and reverse acquisition for us for financial reporting purposes. Guerrilla RF is considered the acquirer for accounting purposes. Our historical financial statements before the Merger have been replaced with the historical financial statements of Guerrilla RF before the Merger in the registration statement of which this prospectus is a part, and in future filings with the SEC. The Merger is intended to be treated as a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended.

 

The issuance of securities pursuant to the Share Conversion was not registered under the Securities Act, in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act, which exempts transactions by an issuer not involving any public offering, and Rule 506 of Regulation D promulgated by the SEC thereunder. These securities may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirement, and are subject to further contractual restrictions on transfer.

 

Private Placement Offering (APO)

 

Following the Effective Time of the Merger, we sold 5,766,550 shares of our Common Stock pursuant to a private placement offering, at a purchase price of $2.00 per share in multiple closings through November 16, 2021. The private placement offering is referred to herein as the “APO.” Also in connection with the APO, our placement agent and its affiliates received 275,000 shares of our Common Stock and warrants to purchase an aggregate of 331,580 shares at an exercise price of $2.00 per share and a term of five years.

 

The aggregate gross proceeds from the APO was $11.5 million (before deducting placement agent fees and expenses of approximately $2.1 million).

 

The APO was exempt from registration under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated by the SEC thereunder. The Common Stock was sold to “accredited investors,” as defined in Regulation D, and was conducted on a “reasonable best efforts” basis.

 

2022/23 Private Placement Offering (2022/23 Offering)

 

On February 28, 2023, we completed a private placement offering, selling approximately 7.1 million units to accredited investors—each unit comprising one share of Common Stock and one warrant to purchase one half (0.5) of a share of Common Stock —for $1.30 per unit. The 2022/23 private placement offering is referred to herein as the “2022/23 Offering.” The warrants have an exercise price of $2.00 per share and a term of five years. Also in connection with the 2022/23 Offering, our placement agent, its selected dealer, and their affiliates received warrants to purchase an aggregate of 1,064,872 shares of Common Stock at an exercise price of $1.30 per share and a term of five years.

 

The aggregate gross proceeds from the 2022/23 Offering was $9.2 million (before deducting placement agent fees and expenses of approximately $1.1 million).

 

The 2022/23 Offering was exempt from registration under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated by the SEC thereunder.  The units were sold to “accredited investors,” as defined in Regulation D, and was conducted on a “reasonable best efforts” basis.

 

 

Implications of Being an Emerging Growth Company and a Smaller Reporting Company

 

As a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act. An emerging growth company may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:

 

 

being permitted to present only two years of audited financial statements and only two years of related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure in our periodic reports and registration statements, including this prospectus;

 

 

reduced disclosure about our executive compensation arrangements;

 

 

not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, as amended, on the effectiveness of our internal controls over financial reporting;

 

 

reduced disclosure obligations regarding executive compensation arrangements in our periodic reports, proxy statements and registration statements, including this prospectus; and

 

 

exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.

 

We may use these provisions until the last day of our fiscal year in which the fifth anniversary of the first sale of our Common Stock pursuant to an effective registration statement occurs. However, if certain events occur prior to the end of such five-year period, including if we become a “large accelerated filer,” our annual gross revenues exceed $1.07 billion or we issue more than $1.0 billion of non-convertible debt in any three-year period, we will cease to be an emerging growth company prior to the end of such five-year period.

 

We have elected to take advantage of certain of the reduced disclosure obligations in the registration statement of which this prospectus is a part and may elect to take advantage of other reduced reporting requirements in future filings. As a result, the information that we provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.

 

The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards until those standards apply to private companies. We have elected to take advantage of the benefits of this extended transition period and, therefore, we will not be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies. Our financial statements may therefore not be comparable to those of companies that comply with such new or revised accounting standards. Until the date that we are no longer an emerging growth company or affirmatively and irrevocably opt out of the exemption provided by Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the “Securities Act”) upon issuance of a new or revised accounting standard that applies to our financial statements and that has a different effective date for public and private companies, we will disclose the date on which we will adopt the recently issued accounting standard.

 

We are also a “smaller reporting company,” meaning that the market value of our stock held by non-affiliates plus the proposed aggregate amount of gross proceeds to us as a result of this offering is less than $700 million and our annual revenue is less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company after this offering if either (i) the market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue is less than $100 million during the most recently completed fiscal year and the market value of our stock held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Report on Form 10-K, and, similar to emerging growth companies, smaller reporting companies have reduced disclosure obligations regarding executive compensation.

 

Corporate Information

 

We were originally incorporated in the State of Delaware as Laffin Acquisition Corp. on November 9, 2020. On October 22, 2021, Guerrilla RF Acquisition Corp. merged with and into Guerrilla RF. Following the Merger, Guerrilla RF was the surviving entity and became our wholly-owned subsidiary, and all of the outstanding shares of common and preferred stock of Guerrilla RF were converted into shares of our Common Stock. The business of Guerrilla RF became our business as a result of the Merger. Following the consummation of the Merger, Guerrilla RF changed its name to “Guerrilla RF Operating Corporation.” Immediately after completion of the Merger, we changed our name to “Guerrilla RF, Inc.”

 

Prior to the Merger, Laffin Acquisition Corp. was a “shell” company registered under the Exchange Act, with no specific business plan or purpose until it began operating the business of Guerrilla RF following the closing of the Merger.

 

Our principal executive offices are located at 2000 Pisgah Church Road, Greensboro, NC 27455. Our telephone number is (336) 510-7840. Our website address is www.guerrilla-rf.com. Information contained on, or that can be accessed through, our website is not a part of this prospectus.

 

 

THE OFFERING

 

 

Common Stock offered by selling stockholders

 

11,930,190 shares

Common Stock outstanding

 

40,550,624 shares

Use of proceeds

 

We will not receive any proceeds from the sale of the shares of Common Stock offered by the selling stockholders.

Offering price

 

The selling stockholders may sell all or a portion of their shares through public or private transactions at prevailing market prices or at privately negotiated prices.

Risk factors

 

You should read the “Risk Factors” section of this prospectus for a discussion of factors to consider carefully before deciding to invest in shares of our Common Stock.

Market for our shares

 

Shares of our Common Stock were cleared for trading and became quoted on the OTCQX, an OTC Market Groups platform, under the symbol “GUER” on May 13, 2022. We urge prospective purchasers of our Common Stock to obtain current information about the market prices of our Common Stock.

Dividend Policy

 

We have never declared any cash dividends on our Common Stock. We currently intend to use all available funds and any future earnings for use in financing the growth of our business and do not anticipate paying any cash dividends for the foreseeable future. See the “Dividend Policy” section of this prospectus.

Reverse Stock Split

 

At the Company’s annual meeting of stockholders held on April 5, 2023, the stockholders approved a proposal to grant discretionary authority to the board of directors to effect a reverse stock split, if at all, within one year of the date of the annual meeting and to fix
the specific ratio within the range of 1-for-2 and 1-for-20.

 

 

The number of shares of Common Stock outstanding is based on an aggregate of 40,550,624 shares of Common Stock outstanding as of March 1, 2023, but excludes:

 

 

3,881,168 shares of Common Stock issuable upon the exercise of warrants with an exercise price of $2.00 per share;

 

 

1,064,872 shares of Common Stock issuable upon the exercise of warrants with an exercise price of $1.30 per share;

 

 

1,237,187 shares of Common Stock issuable upon vesting of outstanding restricted stock units (“RSUs”);

 

 

3,017,565 shares of Common Stock issuable upon the exercise of options outstanding under the 2014 Plan, with a weighted average exercise price of $0.38 per share;

 

 

496,125 shares of Common Stock issuable upon the exercise of options outstanding under the 2021 Plan, with a weighted average exercise price of $2.10 per share; and

 

 

2,130,338 shares of Common Stock available for future awards under the Guerrilla RF, Inc. 2021 Equity Incentive Plan (the “2021 Plan”).

 

Except as otherwise indicated herein, all information in this prospectus reflects or assumes:

 

 

no exercise of the outstanding options or warrants described above; and

 

 

no issuance of additional shares of Common Stock upon the vesting of outstanding RSUs, described above.

 

 

SUMMARY FINANCIAL DATA

 

The following tables set forth summary financial data as of, and for the years ended, December 31, 2022 and 2021 and should be read together with our consolidated financial statements and the related notes, as well as the sections of this prospectus entitled Risk Factors and Managements Discussion and Analysis of Financial Condition and Results of Operations appearing elsewhere in this prospectus. The summary financial data in this section is not intended to replace our consolidated financial statements and related notes. The summary financial data as of, and for the years ended, December 31, 2022 and 2021 are derived from our audited consolidated financial statements included elsewhere in this prospectus. Our historical results are not necessarily indicative of our future results.

 

   

Year Ended December 31,

 
   

2022

   

2021

 

Product

 

$

10,558,570

   

$

9,827,817

 

Royalties and non-recurring engineering

   

1,042,334

     

652,082

 

Total

   

11,600,904

     

10,479,899

 
                 

Direct product costs

   

4,835,632

     

4,340,292

 
                 

Gross Profit

   

6,765,272

     

6,139,607

 
                 

Operating Expenses:

               

Research and development

   

8,114,377

     

4,592,879

 

Sales and marketing

   

4,634,012

     

2,752,153

 

General and administrative

   

5,138,410

     

2,464,295

 

Total Operating Expenses

   

17,886,799

     

9,809,327

 
                 

Operating Loss

   

(11,121,527

)

   

(3,669,720

)

                 

Interest expense

   

(874,713

)

   

(551,495

)

Other income (expenses)

   

(30,526

)

   

1,384,060

 

Total Other Income (Expenses), net

   

(905,239

)

   

832,565

 

Net Loss

 

$

(12,026,766

)

 

$

(2,837,155

)

                 

Net loss per share - basic and diluted

 

$

(0.36

)

 

$

(0.24

)

                 

Weighted average common shares outstanding - basic and diluted

   

33,302,237

     

11,704,201

 

 

 

 

December 31, 2022

 

December 31, 2021

 

Assets

           

Cash

$

4,340,407

 

$

5,313,985

 

Accounts receivable, net

 

1,124,971

   

1,667,006

 

Inventories, net

 

1,672,925

   

1,439,014

 

Prepaid expenses

 

643,401

   

1,187,418

 

Total Current Assets

 

7,781,704

   

9,607,423

 
             

Prepaid expenses and other

 

3,574,746

   

-

 

Operating lease right-of-use assets

 

209,669

   

-

 

Property, plant, and equipment, net

 

5,098,097

   

1,027,312

 

Total Assets

$

16,664,216

 

$

10,634,735

 
             

Liabilities and Stockholders’ Equity

           

Short-term debt

$

959,803

 

$

5,117

 

Operating lease, current portion

 

139,794

   

-

 

Finance lease, current portion

 

1,078,506

   

118,420

 

Accounts payable and accrued expenses

 

4,466,045

   

1,186,443

 

Total Current Liabilities

 

6,644,148

   

1,309,980

 
             

Long-term debt

 

44,279

   

-

 

Operating lease

 

71,714

   

-

 

Finance lease

 

2,984,618

   

264,347

 

Notes payable

 

4,564,564

   

144,783

 

Total Liabilities

 

14,309,323

   

1,719,110

 
             

Preferred stock, $0.0001 par value, 10,000,000 shares authorized, no shares issued and outstanding as of December 31, 2022 and 2021

 

-

   

-

 

Common stock, $0.0001 par value, 300,000,000 shares authorized, 37,267,237 and 33,222,192 shares issued and outstanding as of December 31, 2022 and 2021, respectively

 

3,727

   

3,322

 

Additional paid-in-capital

 

29,424,334

   

23,958,705

 

Accumulated deficit

 

(27,073,168

)

 

(15,046,402

)

Total Stockholders’ Equity

 

2,354,893

   

8,915,625

 

Total Liabilities and Stockholders’ Equity

$

16,664,216

 

$

10,634,735

 

 

 

RISK FACTORS

 

Investing in our Common Stock involves a high degree of risk. In addition to the other information set forth in this prospectus, you should carefully consider the risk factors discussed below when considering an investment in our Common Stock and any risk factors that may be set forth in the applicable prospectus supplement, any related free writing prospectus, as well as the other information contained in this prospectus, any applicable prospectus supplement, and any related free writing prospectus. If any of the following risks occur, our business, financial condition, results of operations, and prospects could be materially and adversely affected. In that case, the market price of our Common Stock could decline, and you could lose some or all of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business operations.

 

RISKS FACTORS SUMMARY

 

 

Our ability to continue as a going concern will depend on us being able to raise significant additional capital to fund our operations, which may be unavailable on attractive terms, if at all, and could dilute your investment.

 

 

We have incurred significant losses in the past and will experience losses in the future. Our business and stock price may be adversely affected if we cannot make consistent progress toward future profitability.

 

 

We may not generate or have sufficient cash available to fund our operations, service our debt, fund capital expenditures, or support our business growth, and we may be unable to find additional sources of capital. As a result, we may be forced to take other actions to satisfy our debt obligations and financing requirements, which may not be successful or on terms favorable to us.

 

 

Our ability to realize our deferred tax asset and deduct certain future losses could be limited if we experience, or are deemed to already have experienced, an ownership change as defined in the U.S. Internal Revenue Code.

 

 

We are an emerging commercial company that began commercial operations selling products in 2014. Since we base our expectations of potential customers and future demand for our products on only limited experience, it is difficult for our management and investors to forecast and evaluate our prospects and revenues accurately.

 

 

We have identified a material weakness in our internal control over financial reporting.  This material weakness could continue to affect our ability to report our results of operations and financial condition accurately and in a timely manner.

 

 

Our sales have been concentrated in a small number of customers.

 

 

We are still developing many of our products, and they may not be accepted in the market or by significant customers.

 

 

Our operating results are substantially dependent on developing new products and achieving design wins. Therefore, our future revenues that fund our growth in operations, continuing product development, administrative costs, and sales and marketing efforts are highly dependent on winning slots for our new product offerings.

 

 

The ultimate impact of the COVID-19 pandemic on our business continues to be unknown. However, beginning in the second quarter of 2020, we observed delays, declining demand, and price fluctuations in the semiconductor industry.

 

 

We depend heavily on a single electronics distribution company to augment the reach of our field sales team and stock our products for a quick fulfillment of orders to numerous end users of our products. Therefore, any disruption of this relationship would result in a significant loss of sales to the extensive market participants with whom we place our products. Furthermore, any disruption of our relationship with this distributor could result in their default in a large portion of our accounts receivable, which can often exceed 60% of total commercial receivables due to us.

 

 

We depend heavily on third parties, especially in our supply chain. Therefore, any disruption in our third-party supply chain relationships, either due to their constraints or their respective decision to suspend materials delivery, would adversely affect our ability to make products and execute sales orders. We may not be able to recover from any disruption that lasts a significant period of time.

 

 

We sell to several large companies with considerable bargaining power, which may require us to agree to terms and conditions that could harm our business or ability to recognize revenues.

 

 

We face risks related to sales through independent sales representatives and distributors.

 

 

If we experience poor manufacturing yields, our operating results may suffer.

 

 

We are subject to inventory risks and costs because we build our products based on anticipated customer orders and forecasts often before receiving purchase orders for the products.

 

 

We operate in a very competitive industry and must continue to innovate.

 

 

Unfavorable changes in interest rates, pricing of certain precious metals, utility rates, and foreign currency exchange rates may adversely affect our financial condition, liquidity, and results of operations.

 

 

Failure to retain and recruit essential engineering, operations, sales/marketing, and administrative talent could negatively impact our business and financial results.

 

 

 

Litigation or legal proceedings could expose us to significant liabilities, occupy a considerable amount of our management’s time and attention, and damage our reputation.

 

 

We rely on our intellectual property and copyrighted designs. As a result, we may not be able to successfully protect against the use of our intellectual property by third parties. As a result, we may be subject to claims of infringement of third-party intellectual property rights.

 

 

We face risks from manufacturing and packaging our products by outside parties located in Taiwan, Singapore, the Philippines, and Malaysia. These risks may include quality failures, export and import complexities and disruptions, geopolitical issues, factory failures or closures, local or global laws violations, the impact of healthcare challenges such as COVID-19 locally, and sudden process manufacturing deviations. In the event of a manufacturing disruption with one of our manufacturing providers, we have options to move manufacturing to another approved supplier with the same processing capabilities.

 

 

Government regulation may adversely affect our business. Economic regulation in China and other countries where we sell products could adversely impact our business and the results of operations. Changes in government trade policies, including the imposition of tariffs and export restrictions, have limited and could continue to limit our ability to sell or provide our products and other items to specific customers and suppliers, which may materially adversely affect our sales and results of operations.

 

 

Security breaches and other disruptions could compromise our proprietary information and expose us to liability, which would cause our business and reputation to suffer.

 

 

There is currently a limited market for our Common Stock, and there can be no assurance that a more liquid market will ever develop. Therefore, you may be unable to resell shares of our Common Stock at times and prices that you believe are appropriate.

 

 

We do not intend to pay dividends for the foreseeable future, and, as a result, your ability to achieve a return on your investment will depend on the appreciation of the price of our Common Stock.

 

 

Our international operations subject us to additional risks that can adversely affect our business results of operations and financial condition.

 

 

Our revenues are dependent on our ability to maintain and expand existing customer relationships and our ability to attract new customers.

 

 

If we fail to increase market awareness of our brand and products, expand our sales and marketing operations, improve our sales execution, and increase our sales channels, our business could be harmed.

 

 

RISKS RELATED TO OUR BUSINESS AND INDUSTRY

 

Our ability to continue as a going concern will depend on us being able to raise significant additional capital to fund our operations, which may be unavailable on attractive terms, if at all, and could dilute your investment.

 

Our recurring operating losses and our current operating plans raise substantial doubt about our ability to continue as a going concern for the next twelve months.  Our independent registered public accounting firm issued their audit report on our consolidated financial statements for the years ended December 31, 2022 and 2021, which included an explanatory paragraph as to our ability to continue as a going concern.  While we believe that our existing cash and cash equivalents will be sufficient to fund our current operating plans through the second quarter of 2023, we have based these estimates on assumptions that may prove to be wrong, and we could spend our available financial resources much faster than we currently expect and need to raise additional funds sooner than we anticipate.

 

Our ability to continue as a going concern will depend on us being able to raise additional capital and/or secure additional loans to fund our operations and achieve our business objectives.  Our cash balance stood at $4.3 million on December 31, 2022; however, we have recorded a net loss of $12.0 million for the year ended December 31, 2022, or approximately $1.0 million per month.  On February 28, 2023, we completed a private placement offering, raising gross proceeds of $9.2 million, including $5.0 million in an initial closing in late December 2022 and $4.2 million in January and February 2023.

 

Potentially, we could draw down additional funds under our existing loan facility with Spectrum Commercial Services Company, L.L.C. (“Spectrum”) (the “Spectrum Loan Facility”); however, our ability to do so is dependent upon the value of eligible accounts receivable assigned to Spectrum as security for advances under the Spectrum Loan Facility, which value fluctuates from time to time and is ultimately outside of our control.  We anticipate seeking permission from Salem Investment Partners V, Limited Partnership (“Salem”) to draw down up to an additional $3.0 million of our $8.0 million loan facility; however, Salem has the discretion to, and may, decline our request.  We are also pursuing additional funding opportunities, including planning for a further capital raise in the second quarter of 2023 in connection with our planned uplisting to the Nasdaq Capital Market or another national securities exchange.  The ongoing inflationary economic environment and related capital market effects caused by the lingering effects of the COVID-19 pandemic, including its impact on the supply chain, cannot be predicted with certainty and may make it more difficult or preclude us from raising additional capital, increase our costs of capital and otherwise adversely affect our business, results of operations, financial condition, and liquidity.  If we are unable to secure additional capital and/or loans when needed or on acceptable terms, we may not be able to do certain things, including but not limited to:

 

 

develop or enhance our products;

 

 

continue and expand our R&D activities;

 

 

continue to expand our sales and marketing organization;

 

 

acquire complementary technologies, products, or businesses;

 

 

expand operations, in the United States or internationally;

 

 

hire, train, and retain employees; or,

 

 

respond to competitive pressures or unanticipated working capital requirements.

 

Our failure to do any of the aforementioned things could harm our business, financial condition and results of operations.  Ultimately, if we do not secure additional financing in a timely manner, we will be unable to fund ongoing operations and pay our obligations as they become due, affecting our ability to continue as a going concern.

 

We have incurred significant losses in the past and will likely experience losses in the future.

 

We have incurred significant losses in the past and recorded a net loss of $12.0 million for the year ended December 31, 2022, and $2.8 million for the year ended December 31, 2021.  As of December 31, 2022, we had an accumulated deficit of $27.1 million and $15.0 million at December 31, 2021. Our business and stock price may be adversely affected if we cannot make consistent progress toward future profitability.

 

Our ability to be profitable in the future depends upon continued demand for our products from existing and new customers. Furthermore, further adoption of our products depends upon our ability to improve the quality of our products. In addition, our profitability will be affected by, among other things, our ability to execute on our business strategy, the timing and size of customer orders, the pricing and costs of our products, competitive offerings, macroeconomic conditions affecting the semiconductor industry, and the extent to which we invest in sales and marketing, research and development, and general and administrative resources.

 

Our ability to realize our deferred tax asset and deduct certain future losses could be limited if we experience an ownership change as defined in the U.S. Internal Revenue Code of 1986, as amended (the "Code"). 

 

Under the Code, a corporation is generally allowed a deduction for net operating losses (“NOLs”) carried over from prior taxable years.  As of December 31, 2022, we had approximately $28.9 million of gross federal and State NOLs and $0.6 million of other carryforwards available to reduce future federal taxable income.  Our ability to use our NOLs and other carryforwards will depend on the amount of taxable income generated in future periods.  A corporation’s ability to deduct its federal NOL carryforwards and to utilize certain other available tax attributes can be substantially constrained under the general annual limitation rules of Section 382 of the Code if it undergoes an “ownership change” as defined in Section 382 (generally, where cumulative stock ownership changes among material stockholders exceed 50% during a rolling three-year period).  Accordingly, if the Company were to undergo an "ownership change", our ability to utilize our NOLs and other carryforwards would be limited, and this could have a material effect on our business, financial condition, and results of operations.  The relevant calculations for Section 382 are technical and highly complex.  Whether an “ownership change” occurs is largely outside of our control, and there can be no assurance that such a change will not occur in the future.  If an “ownership change” occurs in the future it is possible that the limitations imposed could cause a net increase in our federal income tax liability and cause federal income taxes to be paid earlier than if such limitations were not in effect.  An ownership change could also eliminate a portion of the federal tax loss carryforward if the limitation is low and causes our NOLs to expire unutilized.  Any such “ownership change” could have a material adverse effect on our future business, results of operations, financial condition, and the value of our Common Stock.

 

 

Market and economic conditions may negatively impact our business, financial condition, and share price.

 

Concerns over inflation, energy costs, geopolitical issues, the U.S. mortgage market and a declining real estate market, unstable global credit markets and financial conditions, and volatile oil prices have led to periods of significant economic instability, diminished liquidity and credit availability, declines in consumer confidence and discretionary spending, diminished expectations for the global economy and expectations of slower global economic growth going forward, and increased credit defaults.  Our general business strategy may be adversely affected by any such economic downturns, volatile business environments and continued unstable or unpredictable economic and market conditions.  If these conditions continue to deteriorate or do not improve, it may make any necessary debt or equity financing more difficult to complete, more costly, and more dilutive.  Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our growth strategy, financial performance, and share price and could require us to delay or abandon development or commercialization plans.

 

We have identified a material weakness in our internal control over financial reporting.  We had previously identified other material weaknesses that have since been remediated. The outstanding material weakness, or a reoccurrence of those recently remediated material weaknesses, could adversely affect our ability to report our results of operations and financial condition accurately and in a timely manner.

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of consolidated financial statements for external purposes in accordance with U.S. generally accepted accounting principles (“GAAP”).  Our management is likewise required, on a quarterly basis, to evaluate the effectiveness of our internal controls and to disclose any changes and material weaknesses identified through such evaluation in those internal controls.  A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim consolidated financial statements will not be prevented or detected on a timely basis.

 

As described elsewhere in this prospectus, we have identified a material weakness in our internal control over financial reporting related to our accounting policy and documentation of management's contemplation of the accounting treatment over leases and significant unusual transactions. As a result of this material weakness, our management concluded that our internal control over financial reporting was ineffective as of December 31, 2022.

 

We had previously identified material weaknesses in our internal control over financial reporting that have been remediated related to:  significant positions utilized for our tax provisions, our Chief Financial Officer’s (“CFO”) rights and access to post journal entries, and our financial reporting process. Our management has concluded these previously identified material weaknesses have been remediated as of December 31, 2022.

 

To remediate these material weaknesses, we have devoted significant effort and resources to improve our internal control over financial reporting. 

 

Our remediation steps have included:

 

 

the retention of a public accounting firm to assist us with our tax accounting and tax provision calculations;

 

 

the retention of an accounting advisory services consulting firm to assist us with evaluating and documenting the accounting treatment of significant unusual transactions;

 

 

the enhancement of our procedures to evaluate and document the accounting treatment of significant unusual transactions, including the utilization of an accounting research tool we have implemented and subscribed;

 

 

the enhancement of our segregation of duties through a review and revision of information technology access rights;

 

 

the enhancement and formalization of our financial reporting scheduling and closing calendar; and,

 

 

the enhancement of our secondary review process during our financial reporting process.

 

We can offer no assurance that these remediation steps will prevent any future deficiencies in our internal control over financial reporting.  Any failure to maintain adequate internal control over financial reporting could adversely impact our ability to report our financial position and results from operations on a timely and accurate basis.  Furthermore, we can give no assurance that the measures we have taken will remediate the outstanding material weakness, or will prevent any future material weaknesses, or restatements of financial results will not arise in the future due to a failure to implement and maintain adequate internal control over financial reporting or circumvention of these controls.  In addition, our strengthened controls and procedures may not be adequate to prevent or identify irregularities or errors, which could affect the fair presentation of our consolidated financial statements.

 

We have a limited operating history upon which investors can evaluate our business and prospects.

 

We are an emerging commercial company that began commercial operations selling products in 2014.  Since we base our expectations of potential customers and future demand for our products on only limited experience, it is difficult for our management and investors to forecast and evaluate our prospects and revenues accurately.  Therefore, the proposed progression of our operations is subject to the risks inherent in light of the expenses, difficulties, complications, and delays frequently encountered in connection with the growth of any new business, as well as those risks that are specific to our Company in particular.  The risks include but are not limited to our reliance on third parties to complete some processes for the manufacturing and packaging of our products and the possibility that we will not be able to achieve design wins with our products.  In addition, to successfully introduce and market our products at a profit, we must establish brand name recognition and competitive advantages for our products.  There are no assurances that the Company can successfully address these challenges. If unsuccessful, the Company and its business, financial condition, and operating results will be materially and adversely affected.

 

 

We may not generate sufficient cash to service our current or future debt or fund capital expenditures.  As a result, we may be forced to take other actions to satisfy our debt obligations and financing requirements, which may not be successful or on terms favorable to us.

 

Our ability to make scheduled payments on, or to refinance, our current or future debt obligations and to fund working capital, planned capital expenditures and expansion efforts, and any strategic alliances or acquisitions we may make in the future depends on our ability to raise additional funds in 2023, generate cash in the future, and on our financial condition and operating performance.  However, our financial condition and operating performance are subject to prevailing economic and competitive conditions and specific financial, business, and other factors beyond our control.  As a result, we cannot ensure that we will maintain a level of cash flows from operating activities sufficient to permit us to pay our debt.  For example, should our cash flows and capital resources be insufficient to fund our debt service obligations, we may face liquidity issues and be forced to reduce or delay investments and capital expenditures, sell assets, seek additional capital, or restructure or refinance our debt. These alternative measures may not be successful and may not permit us to meet our scheduled debt service and other obligations.

 

Our operating results are substantially dependent on developing new products and achieving design wins.  Therefore, our future revenues that fund our growth in operations, continuing product development, administrative costs, and sales and marketing efforts are highly dependent on winning slots for our new product offerings.

 

Our largest markets are characterized by high levels of competition from formidable market participants, and they are often much larger in size and have greater capacity than us.  Therefore, to effectively compete in our markets, we must introduce new product solutions that satisfy customer demands for greater functionality and improved performance.  However, it is possible that we may fail to provide such solutions in time for our end-user customers’ design cycles.  In that case, we may experience a lack of growth that is central to our strategic plans or even suffer substantial decreases in our revenue by missing out on these design windows.

 

Our success depends on our ability to develop and introduce new products in a timely and cost-effective manner and secure production orders from our customers.  The development of new products is a highly complex process, and we have experienced delays in completing the development and introduction of new products at times.

 

We participate in markets with a broad array of applications, which makes our ability to predict market requirements more challenging and consequently makes the definition and design of new products that address those requirements more difficult to ensure the future success of our business.

 

Our success at effective product development depends on several factors, including the following:

 

 

our ability to design products that meet industry requirements, costs, and performance levels, including specific customer product requirements;

 

our ability to introduce new products that are competitive and that we can offer at competitive prices for the functionality and performance delivered;

 

our ability to recruit and retain qualified product design engineers;

 

our ability to supply products that are highly reliable and free of defects;

 

our ability to meet industry and customer product ramps; and,

 

the success of our customers’ products in the market, which, in turn, determines the demand for our chips.

 

The industry and the markets in which we operate are highly competitive and subject to rapid technological change.  Therefore, for our RF products to be competitive and achieve market acceptance, we need to keep pace with the rapid development of new process technologies.

 

The markets in which we compete are intensely competitive.  We operate primarily in the industry that designs and produces semiconductor components for wireless communications and other wireless devices, which are subject to rapid changes in both product and process technologies based on demand and evolving industry standards.  The markets for our products are characterized by:

 

 

rapid changes in customer requirements;

 

frequent new product introductions and enhancements;

 

continuous demand for higher levels of integration, decreased size, and reduced power consumption;

 

fluctuating pricing; and,

 

evolving industry standards.

 

Our R&D activity and resulting products could become obsolete or less competitive sooner than anticipated because of a faster-than-expected change in one or more of the above-noted factors.  Therefore, for our products to be competitive and achieve market acceptance, we need to keep pace with the rapid development of new process technologies, which requires us to:

 

 

respond effectively to technological advances through the timely introduction of new technologies and products;

 

successfully implement our strategies and execute our R&D plan in practice; and,

 

implement cost reductions in the manufacturing of our products.

 

Many of our current and potential competitors have entrenched market positions and customer relationships, established patents, and other IP and substantial technological capabilities.  Additionally, many of our competitors may have significant financial, technical, manufacturing, and marketing resources, which may allow them to implement new technologies and develop new products more quickly.

 

 

We will require additional capital to support our business growth, and such capital may not be available.

 

We intend to continue making investments to support business growth.  We will require additional funds to respond to business challenges, including developing new solutions or enhancing existing solutions, enhancing our operating infrastructure, expanding our sales and marketing capabilities, and acquiring complementary businesses, technologies, or assets.  We plan to engage in additional equity or debt financing to secure the necessary funds.  However, equity and debt financing might not be available when needed or, if available, might not be available on terms satisfactory to us.  If we raise additional funds through equity financing, our stockholders may experience dilution.  Debt financing, if available, may involve covenants restricting our operations or our ability to incur additional debt. If we are unable to obtain adequate financing or financing on terms satisfactory to us in the future, our ability to continue as a going concern, to support our business growth, and to respond to business challenges could be significantly limited as we may have to delay, reduce the scope of, or eliminate some or all of our initiatives, which could harm our operating results.

 

We are still developing many of our products, and they may not be accepted in the market or by significant customers.

 

Although we believe that our products provide advantages over existing MMIC products in the market, we cannot be sure that new products will achieve market acceptance.

 

The successful development and market acceptance of our MMIC products will be highly complex and will depend on the following principal competitive factors, including our ability to:

 

 

comply with industry standards and effectively compete against current products;

 

differentiate our products from the offerings of our competitors by delivering MMICs that are higher in quality, reliability, and technical performance;

 

anticipate customer and market requirements, changes in technology and industry standards, and timely develop improved technologies that meet high levels of satisfaction among our potential customers;

 

maintain, grow and manage our internal teams to the extent we increase our operations and develop new segments of our business;

 

build and sustain successful collaborative, strategic, and other relationships with manufacturers, customers, and contractors;

 

protect, create or otherwise obtain adequate IP for our technology; and,

 

achieve strong financial, sales, marketing, technical and other resources necessary to develop, test, manufacture, and market our products.

 

If we are unsuccessful in accomplishing these objectives, we may not compete successfully against current and potential competitors.  As a result, the market may not accept our future MMIC products.

 

In addition, Tier 1 manufacturers may be less receptive to adopting solutions from smaller companies such as the Company due to their desire to limit the expansion of their approved vendor lists.  The Company could also face pressure from competitors who can provide more lucrative bundling options due to the breadth of their overall portfolio.

 

We depend on a large distributor and several large customers in the automotive and wireless infrastructure market.

 

A substantial portion of our product revenue results from sales to large suppliers in the automotive industry, which requires special performance and reliability requirements and stringent volume delivery demands.  In addition, we rely heavily on the wireless infrastructure market, which, similar to our automotive customers, requires we reliably meet high-volume delivery schedules.  Therefore, our future operating results will be heavily affected by the success of large automotive and wireless infrastructure customers.

 

Our three largest end customers collectively accounted for approximately 45% and 49% of our revenue for 2022 and 2021, respectively.  We often service end customers through our largest distributor, who will ship to and bill directly for product shipments.  The concentration of billings to this distributor as a portion of our total revenues was 81% and 76% for fiscal years 2022 and 2021, respectively.  It is possible that demand for their customers’ products decreases materially.

 

We depend heavily on third parties.

 

We partner with a limited number of external suppliers and rely on them to fulfill our customers’ orders.  These third-party suppliers perform complex manufacturing processes, including die processing, packaging, and test, tape and reel.  The semiconductor industry has experienced supply constraints for specific items, which the COVID-19 pandemic exacerbated.

 

If these third-party suppliers fail to deliver our products on time, we will be unable to satisfy our customers’ orders, which will negatively impact our financial results, cash flow, and our ability to fund further product development efforts.

 

Our key suppliers commit to being compliant with applicable ISO 9001 quality standards; however, should they experience quality and reliability issues, this may delay shipments to our customers and negatively affect our reputation directly with customers and our reputation in the market, which could negatively impact our financial results.

 

 

We sell to several large companies with considerable bargaining power, which may require us to agree to terms and conditions that could harm our business or ability to recognize revenues.

 

Large companies comprise a significant portion of our current and target customer base.  These customers generally have greater purchasing power than smaller entities and, accordingly, often demand more favorable terms from suppliers, including us.  As a result, as we seek to expand our sales to existing customers and acquire new customers, we may be required to agree to terms and conditions that are more favorable to our customers, and that may affect the timing of our ability to recognize revenue, increase our costs, and harm our business, financial condition, and results of operations.  Failure to satisfy such onerous terms may result in litigation, damages, additional costs, market share loss, and reputation loss.  Additionally, these large customers may require that we agree to most-favored customer or exclusivity provisions concerning specific products that restrict our ability to do business with other customers causing us to increasingly rely on such large customers.

 

We face risks related to sales through independent sales representatives and distributors.

 

We sell a significant portion of our products through third-party distributors.  We depend on these distributors to help us create end-customer demand, provide technical support and other value-added services to customers, fill customer orders, and stock our products.  As a result, a material change in our relationship with one or more of these distributors or their failure to perform as expected could negatively impact our financial results.

 

Our ability to add or replace distributors for some of our products may be limited because our end-customers may be hesitant to accept the addition or replacement of a distributor due to advantages in the incumbent distributors’ technical support and favorable business terms related to payments, discounts, and stocking of acceptable inventory levels.

 

Using third parties for sales representation and distribution exposes us to many risks, including competitive pressure, concentration, credit risk, and compliance risks.  Other third parties may use one of our distributors or sales representatives to sell products that compete with our products.  We may need to provide financial and other incentives, such as higher commission rates, to encourage them to prioritize the sale of our products.  Our distributors may face financial difficulties, including bankruptcy, which could harm our collection of accounts receivable and financial results.  Violations of the FCPA or similar laws by our distributors or other third-party intermediaries could have a material impact on our business.

 

Failure to manage risks related to our use of distributors or other third-party intermediaries may reduce sales, increase expenses, and weaken our competitive position.

 

Business disruptions could harm our business and adversely affect our results of operations.

 

Our business could be disrupted by natural disasters, industrial accidents, cybersecurity incidents, telecommunications failures, power or water shortages, extreme weather conditions, public health issues (including the COVID-19 pandemic), military actions, acts of terrorism, political or regulatory issues, and other man-made disasters or catastrophic events.

 

We carry commercial property damage and business interruption insurance against various risks, with limits we deem adequate, for reimbursement for damage to our fixed assets and the resulting disruption of our operations.  However, this coverage likely would not wholly cover the negative impact on our business for any lengthy interruption, which could harm our Company in an unanticipated way and result in significant losses, a decline in revenue, and an increase in our costs and expenses.  Disruptions from these events would likely require substantial recovery time and impact profits and cash flow in a significant manner.  In addition, such business disruptions would adversely impact our relationships with our customers.

 

If our customers independently experience comparable business disruptions, they may reduce or cancel their orders, which may adversely affect our results of operations.

 

If we experience poor manufacturing yields, our operating results may suffer.

 

Our products are unique and fabricated using semiconductor process technologies that are highly complex.  In some cases, we assemble our products in customized packages.  Some of our products consist of multiple components in a single module and feature enhanced levels of integration and complexity.  Our customers insist that we design our products to meet their same quality, performance, and reliability specifications.  Our manufacturing yield is a combination of yields across the entire supply chain, including wafer fabrication, assembly, and test yields.  Due to the complexity of our products, we periodically experience difficulties in achieving acceptable yields, particularly for new products.

 

Our end-user customers test our products once they assemble them into their products.  The number of usable products that result from our subcontractor production process can fluctuate because of many factors, including:

 

 

design errors;

 

defects in photomasks (which are used to print circuits on a wafer);

 

minute impurities and variations in materials used;

 

contamination of the manufacturing environment;

 

equipment failure or variations in the manufacturing processes;

 

losses from broken wafers or other human error; and,

 

defects in substrates and packaging.

 

 

Although our supply chain partners and our engineering and quality groups constantly seek to improve our manufacturing yields, such efforts may encounter significant barriers to success resulting in less-than-optimal yields or losses that would directly impact profits and increase costs and lower cash flows.  For example, costs of product defects and deviations from required specifications include the following:

 

 

disposal of inventory or financial write-offs of inventory;

 

accepting returns of products;

 

providing product replacements at no charge;

 

reimbursement of direct and indirect costs incurred by our customers in recalling or reworking their products due to defects in our products;

 

travel and personnel costs to investigate potential product quality issues and to identify or confirm the failure mechanism or root cause of product defects; and,

 

defending against litigation.

 

These issues could negatively impact our market position and reputation with customers, resulting in long-term harm to our business and financial results.

 

We are subject to inventory risks and costs because we build our products based on anticipated customer orders and forecasts often before receiving purchase orders for the products.

 

To ensure the availability of our products for some of our largest end-user customers, we start manufacturing certain products in advance of receiving purchase orders based on forecasts provided by these customers.  However, these forecasts do not represent binding purchase commitments, and we do not recognize sales for these products until they are shipped to our customers.  As a result, we incur significant inventory and manufacturing costs in advance of anticipated sales.  Because demand for our products may not materialize or may be lower than expected, manufacturing based on forecasts subjects us to heightened risks of higher inventory carrying costs, increased obsolescence, and higher operating costs.  In addition, if product demand decreases or we fail to forecast demand accurately, we could be required to write off inventory, which would negatively impact our gross margin and other operating results.

 

We operate in a very competitive industry and must continue to innovate.

 

We compete with several companies primarily to design, manufacture, and sell RF solutions and discrete integrated circuits and modules.  Increased competition from any source could adversely affect our operating results through lower prices for our products, reduced demand for our products, losses of existing design slots with critical customers, and a corresponding reduction in our ability to recover development, engineering, and manufacturing costs.

 

Many of our existing and potential competitors have entrenched market positions, historical affiliations with OEMs, considerable internal manufacturing capacity, established IP rights, and substantial technological capabilities.  The semiconductor industry has experienced increased industry consolidation over the last several years, a trend we expect to continue.  Many of our existing and potential competitors may have more significant financial, technical, manufacturing, or marketing resources than we do.  As a result, we cannot be sure that we will compete successfully with our competitors.

 

Unfavorable changes in interest rates, pricing of certain precious metals, utility rates, and foreign currency exchange rates may adversely affect our financial condition, liquidity, and results of operations.

 

Any of these macro conditions could negatively impact our supply chain partners and the industry as a whole, which could materially decrease our profits and cash flow.

 

To compete, we must attract, retain, and motivate key employees, and our failure to do so could harm our business and our results of operations.

 

We must hire and retain qualified employees, develop leaders for essential business functions, and train and motivate our employees.  Our future operating results and success depend on keeping critical technical personnel and management and expanding our sales and marketing, R&D, finance, and administration personnel.  We do not have employment agreements with the vast majority of our employees.

 

We must attract qualified personnel.  The competition for qualified personnel is intense, especially considering the size of our organization, which must compete with much larger companies for top talent.  The number of people with experience, particularly in RF engineering, software engineering, integrated circuit design, and technical marketing and support, is limited.  In addition, existing or new immigration laws, policies, or regulations in the U.S. may limit the pool of available talent.  For example, travel bans, difficulties obtaining visas, and other restrictions on international travel could make it more challenging to manage our international operations effectively, operate as a global company, or service our international customer base.  Changes in the interpretation and application of employment-related laws to our workforce practices may also result in increased operating costs and less flexibility in meeting our changing workforce needs.  As a result, we cannot be sure that we will be able to attract and retain skilled personnel in the future, which could harm our business and our results of operations.

 

Litigation or legal proceedings could expose us to significant liabilities, occupy a considerable amount of our managements time and attention, and damage our reputation.

 

We may, from time to time, be a party to various litigation claims and legal proceedings.  We will evaluate these claims and proceedings to assess the likelihood of unfavorable outcomes and estimate, if possible, the amount of potential losses.  For example, our manufacturers’ failure to successfully manufacture products that conform to our design specifications and the U.S. Federal Communications Commission's ("FCC") strict regulatory requirements may lead to product defects and substantial costs to repair or replace these parts or materials, significantly impacting our ability to develop and implement our technology and improve our products’ performance.  In addition, claims made or threatened by our suppliers, distributors, end-user customers, competitors, or current or former employees could adversely affect our relationships, damage our reputation, or otherwise adversely affect our business, financial condition, or results of operations.  The costs associated with defending legal claims and paying damages could be substantial.  Our reputation could also be adversely affected by such claims, whether or not successful.

 

We may establish reserves as appropriate based upon assessments and estimates under our accounting policies in accordance with U.S. GAAP.  We base our assessments, estimates, and disclosures on the information available to us at the time and rely on legal and management judgment.  Actual outcomes or losses may differ materially from assessments and estimates. Actual settlements, verdicts, or resolutions of these claims or proceedings may negatively affect our business and financial performance.  For example, a successful claim against us that is not covered by insurance or over our available insurance limits could require us to make significant damages payments and could materially adversely affect our financial condition, results of operations, and cash flows. 

 

 

We may become subject to warranty claims, product recalls, and product liability claims that could materially and adversely affect our financial condition and results of operations.

 

We may become subject to warranty claims, product recalls, and product liability claims that could lead to significant expenses.  In addition, although we maintain reserves for reasonably estimable liabilities and purchase product liability insurance, we may elect to self-insure concerning some issues, and our reserves may be inadequate to cover the uninsured portion of such claims.

 

Product liability insurance is subject to significant deductibles, and such insurance may be unavailable or inadequate to protect against all claims.  If one of our end-user customers recalls a product containing one of our devices, we may incur material costs and expenses, including replacement costs, direct and indirect product recall-related costs, diversion of technical and other resources, and reputational harm.  Our customer contracts typically contain warranty and indemnification provisions, and in some instances, may also have liquidated damages provisions relating to product quality issues.  The potential liabilities associated with such provisions are significant, and in some cases, are included in agreements with some of our largest end customers.  Any such liabilities may significantly exceed any revenue we receive from the sale of the relevant products.  Costs, payments, or damages incurred or paid by us in connection with warranty and product liability claims and product recalls could materially and adversely affect our financial condition and the results of operations.

 

We are subject to risks associated with environmental, health, and safety regulations and climate change.

 

We are subject to many U.S. and foreign environmental, health, and safety laws and regulations. These laws and regulations include those related to the use, transportation, storage, handling, emission, discharge, and recycling or disposal of hazardous materials.  Our failure to comply with any of these existing or future laws or regulations could result in:

 

 

regulatory penalties and fines;

 

legal liabilities, including financial responsibility for remedial measures if our properties are contaminated;

 

expenses to secure required permits and governmental approvals;

 

reputational damage; and,

 

suspension or curtailment of third-party manufacturing, assembly, and test processes.

 

Existing and future environmental laws and regulations could also impact our product designs and limit or restrict the materials or components included in our products.

 

New climate change laws and regulations could require changes to manufacturing processes and increase our costs. In addition, new restrictions on carbon dioxide emissions or other greenhouse gases could result in increased costs for us and our suppliers.  Various jurisdictions are developing different climate change-based regulations that may increase expenses and adversely affect our operating results.  We expect increased worldwide regulatory activity relating to climate change in the future.  Future compliance with these laws and regulations may adversely affect our business and the results of operations.

 

Impact of Product Demand on our Business

 

Our revenue, earnings, margins, and other operating results have fluctuated significantly and may fluctuate considerably in the future.  If demand for our products weakens as a result of economic conditions or for other reasons, our revenue and profitability will be impacted.  Our future operating results will depend on many factors, including business, political and macroeconomic changes such as trade restrictions and recession or slowing growth in the semiconductor industry and the overall global economy.

 

If demand for our products slows, our financial and operating results will be negatively impacted, thus impeding our ability to fund future product development efforts and, in extreme cases, negatively impacting our ability to finance normal operations without acquiring funds through credit or equity raises.

 

In addition, if our end customers experience spikes in demand far more than anticipated, our ability to respond effectively to such demand might be impacted.  This type of demand surge could negatively impact cash flow (e.g., supply chain inventory requirements) in the short term and potential loss of credibility with the industry in the long term if we do not meet demands reasonably.

 

We are subject to high degrees of product demand variability.  Even if we achieve a design win, our customers can delay or cancel a program without advanced warning, creating risk for inventory obsolescence, ineffective use of cash, and resources channeled to less-than-optimal business opportunities.  The loss of a design win and failure to add new design wins to replace lost revenue and weakened customer demand would have a material adverse effect on our business, financial condition, and the results of operations.

 

We rely on our intellectual property portfolio and may not be able to successfully protect against the use of our intellectual property by third parties.

 

We rely on a combination of patents, trademarks, trade secret laws, confidentiality procedures, and licensing arrangements to protect our intellectual property rights.  We cannot be sure that patents will be issued from any pending applications or that patents will be issued in all countries where we can sell our products.  Further, we cannot be sure that any claims allowed from pending applications will be of sufficient scope or strength to provide meaningful protection against our competitors.  Our competitors may also be able to design around our patents.

 

The laws of some countries in which we develop, manufacture, or sell our products may not protect our products or intellectual property rights to the same extent as U.S. laws.  This risk increases the possibility of misappropriation or infringement of our technology and products.  Although we intend to defend our intellectual property rights vigorously, we may not be able to prevent the misappropriation of our technology.  Additionally, our competitors may independently develop non-infringing technologies that are substantially equivalent or superior to ours.

 

We may need to engage in legal actions to enforce or defend our intellectual property rights.  Generally, intellectual property litigation is both expensive and unpredictable.  Our involvement in intellectual property litigation could divert the attention of our management and technical personnel and have a material, adverse effect on our business.

 

 

We may be subject to claims of infringement of third-party intellectual property rights.

 

Our operating results may be adversely affected if third parties claim that our products infringed their patent, copyright, or other intellectual property rights.  Such assertions could lead to expensive and unpredictable litigation, diverting the attention of management and technical personnel.  An unsuccessful result in such litigation could adversely affect our business, including injunctions, exclusion orders, and royalty payments to third parties.  In addition, if one of our customers or a supplier to one of our customers is found to have infringed on third-party intellectual property rights, such a finding could adversely affect the demand for our products.

 

If our products contribute to a data security breach, we may lose current or future customers, our reputation and business may be harmed, and we may incur liabilities.

 

Our end-user customers use our products in a wide variety of ways.  Although we do not control security features surrounding the use of our products by our end-user customers, our end-user customers’ security measures may not detect or prevent hacker interceptions, break-ins, security breaches, the introduction of viruses or malicious code, such as “ransomware,” and other disruptions that may jeopardize the security of information transmitted through an electronic pathway using our products.  In addition, cyber-attacks and other malicious Internet-based activity continue to increase generally.  They may be directed at either the electronic transmission pathway within which our end-user customers use our products or even our own our corporate information technology software and infrastructure.

 

Because techniques used to obtain unauthorized access, exploit vulnerabilities, or sabotage systems change frequently and generally are not identified until they are launched against a target, we may be unable to anticipate these techniques, patch vulnerabilities, or implement adequate preventative measures as we research and develop our products.  In addition, certain of our end-user customers may have a greater sensitivity to security defects or breaches in electronic pathways using our products.  As a result, any actual or perceived security breach or theft of the business-critical data of one or more of our end-user customers, regardless of whether the breach is attributable to the electronic transmission through one of our products, may adversely affect the market’s perception of our products.  There can be no assurance that limitation of liability, indemnification, or other protective provisions in our contracts would be applicable, enforceable, or adequate in connection with a security breach, or would otherwise protect us from any such liabilities or damages concerning any particular claim.  We also cannot be sure that our existing general liability insurance coverage and coverage for errors or omissions will continue to be available on acceptable terms or will be available in sufficient amounts to cover one or more large claims, or that the insurer will not deny coverage as to any future claim.  As a result, one or more large claims may be asserted against us that exceed our available insurance coverage, or changes in our insurance policies may occur, including premium increases or the imposition of large deductible or co-insurance requirements.  Furthermore, because some of our employees and third-party service provider personnel have shifted to some degree of remote work due to the COVID-19 pandemic, our ability to safeguard our own systems may be adversely impacted, and we may be more susceptible to data security breaches.

 

Furthermore, a party that can circumvent security measures or exploit any vulnerabilities in end-user customer systems using our products could misappropriate our end-user customers’ proprietary or confidential information, cause an interruption in their operations, damage or misuse their computer systems, misuse any information that they misappropriate, cause termination of our sales with those end-user customers, subject us to notification and indemnity obligations, litigation, and regulatory investigation or governmental sanctions, cause us to lose existing customers, and harm our ability to attract future customers.  Any such breach could cause harm to our reputation, business, financial condition, and results of operations, and we may incur significant liability.  As a result, our business and financial position may be harmed.

 

Security breaches and other disruptions could compromise our proprietary information and expose us to liability, which would cause our business and reputation to suffer.

 

We rely on trade secrets, technical know-how, and other unpatented proprietary information relating to our product development and manufacturing activities to provide us with competitive advantages.  We protect this information by entering into confidentiality agreements with our employees, consultants, strategic partners, and other third parties.  We also design our computer systems and networks and implement various procedures to restrict unauthorized access to the dissemination of our proprietary information.

We face internal and external data security threats.  For example, current, departing, or former employees or third parties could attempt to improperly use or access our computer systems and networks to copy, obtain, or misappropriate our proprietary information or otherwise interrupt our business.  Like others, we are also subject to significant system or network disruptions from numerous causes, including computer viruses and other cyber-attacks, facility access issues, new system implementations, and energy blackouts.

 

Security breaches, computer malware, phishing, spoofing, and other cyber-attacks have become more prevalent and sophisticated in recent years.  While we defend against these threats daily, we do not believe that such attacks have caused us any material damage to date.  Because the techniques used by computer hackers and others to access or sabotage networks constantly evolve and generally are not recognized until launched against a target, we may be unable to anticipate, counter, or ameliorate all these techniques.  As a result, our and our customers’ proprietary information may be misappropriated, and we cannot predict the impact of any future incident.  Any loss of such information could harm our competitive position, result in a loss of customer confidence in the adequacy of our threat mitigation and detection processes and procedures, cause us to incur significant costs to remedy the damages caused by the incident, and divert management and other resources.  We routinely implement improvements to our network security safeguards, and we are devoting increasing resources to the security of our information technology systems.  However, we cannot assure you that such system improvements will be sufficient to prevent or limit damage from future cyber-attacks or network disruptions.

 

The costs related to cyber-attacks or other security threats, or computer systems disruptions typically would not be fully insured or indemnified by others.  As a result, the occurrence of any of the events described above could result in the loss of competitive advantages derived from our R&D efforts or our IP.  Moreover, these events may result in the early obsolescence of our products, product development delays, or diversion of the attention of management and critical information technology and other resources, or otherwise, adversely affect our internal operations and reputation or degrade our financial results and stock price.

 

 

Our sales have been concentrated in a small number of end-user customers.

 

Our revenues have been concentrated in a relatively small number of large end-user customers, and we have historically derived a significant percentage of our total product revenues from a few end-user customers.  For fiscal years ended December 31, 2022, and 2021, our five largest end-user customers accounted for approximately 59% and 67% of our total product revenues, respectively.  If one of our large end-user customers ceases or significantly reduces its product orders from us, or if we fail to generate additional product sales with these or similarly significant end-user customers, there could be a material adverse effect on our business, financial condition or results of operations.

 

We expect that we will continue to depend upon a relatively small number of end-user customers for a significant portion of our total revenues for the foreseeable future.  Therefore, the loss of any of these end-user customers or industry sector groups of end-user customers for any reason or a change of relationship with any of our key end-user customers could cause a material decrease in our total revenues.

 

Additionally, mergers or consolidations among our end-user customers could reduce the number of our end-user customers and could adversely affect our revenues and sales.  In particular, if our end-user customers are acquired by entities that are not also our end-user customers, that do not use our products or purchase products from one of our competitors, and choose to discontinue, reduce or change the volume of product purchases from us, our business and operating results could be materially and adversely affected.

 

We depend on many technology providers, and if we cannot source solutions from them, our business and operating results could be harmed.

 

Our product design and development processes incorporate multiple software components obtained from licensors on a non-exclusive basis.  Our license agreements can be terminated for cause.  In many cases, these license agreements specify a limited term and are only renewable beyond that term with the licensor’s consent.  If a licensor terminates a license agreement for cause, objects to its renewal or conditions renewal on modified terms and conditions, we may be unable to obtain licenses for equivalent software components on reasonable terms and conditions, including licensing fees, warranties, or protection from infringement claims.  In addition, some licensors may discontinue licensing their software to us or support the software version used in our product design and development processes.  In such circumstances, we may need to redesign our processes with substantial cost and time investment to incorporate alternative software components or be subject to higher technology costs. Any of these circumstances could adversely affect the cost and efficiency of our product research and development.

 

We may not be able to keep pace with changes in technology or provide timely enhancements to our products.

 

The market for our products is characterized by rapid technological advancements, changes in customer requirements, frequent new product introductions and enhancements, and changing industry standards.  To maintain our growth strategy, we must adapt and respond to our end-user customers’ technological advances and technological requirements.  Our future success will depend on our ability to: enhance our current products; introduce new products to keep pace with products offered by our competitors; increase the performance of our internal systems, particularly our research and development systems that meet our end-user customers’ changing requirements; and adapt to technological advancements and changing industry and regulatory standards.  We continue to make significant investments in the research and development of new products.  If our products become outdated, it may negatively impact our ability to meet performance expectations related to quality, time to market, cost, and innovation relative to our competitors.  In addition, the failure to achieve product performance requirements of our new and existing end-user customers and sustain good customer satisfaction may adversely impact our business and operating results.

 

Any failure to offer high-quality customer support for our products may adversely affect our relationships with our customers and harm our financial results.

 

Once our products are sold, our customers use our support organization to resolve technical issues relating to our products.  In addition, we also believe that our success in selling our products is highly dependent on our business reputation and favorable recommendations from our existing customers.  Therefore, any failure to maintain high-quality customer support, or a market perception that we do not maintain high-quality support, could harm our reputation, adversely affect our ability to maintain existing customers or sell our products to existing and prospective customers, and harm our business, operating results, and financial condition.

 

If we cannot attract and retain key personnel, our business could be harmed.

 

We must attract and retain highly qualified personnel to execute our business strategy.  If any of our key employees were to leave, we could face substantial difficulty hiring qualified successors.  We could experience a loss in productivity while any successor obtains the necessary training and experience.  Although we have arrangements with some of our executive officers designed to promote retention, our employment relationships are generally at-will, and we have had key employees leave in the past.  We cannot assure you that one or more key employees will not leave in the future.  In particular, we compete with many other companies for semiconductor developers and other skilled engineering, marketing, sales, and operations professionals, and we may not be successful in attracting and retaining the professionals we need.  We have, from time to time in the past, experienced, and we expect to continue to experience in the future, difficulty in hiring and difficulty in retaining highly skilled employees with appropriate qualifications.  In particular, we have experienced a competitive hiring environment in the Greater Triad Area, where we are headquartered in North Carolina.  Many of the companies with which we compete for experienced personnel have greater resources than we do.  In addition, in making employment decisions, job candidates often consider the value of the equity incentives they are to receive in connection with their employment.  If we and our third-party service providers experience difficulty recruiting and retaining qualified personnel, our business may be adversely affected.  If the price of our stock declines or experiences significant volatility, our ability to attract or retain key employees will be adversely affected.  We intend to continue to hire additional highly qualified personnel, including research and development and operational personnel.  Still, we may not be able to attract, assimilate, or retain qualified personnel in the future. Any failure to attract, integrate, motivate, and retain these employees could harm our business.

 

 

Our revenues and operating results have fluctuated and are likely to continue to fluctuate, making our quarterly results difficult to predict, which may cause us to miss analyst expectations and may cause the price of our Common Stock to decline.

 

Our operating results have been and may continue to be difficult to predict, even in the near term, and are likely to fluctuate due to various factors, many of which are outside of our control.

 

Comparisons of our revenues and operating results on a period-to-period basis may not be meaningful.  You should not rely on our past results to indicate our future performance.  Each of the following factors, among others, could cause our operating results to fluctuate from quarter to quarter:

 

 

the financial health of our customers;

 

 

occurrence of technological advances and potential effects on our business and operations;

 

 

market acceptance and adoption of our products;

 

 

changes in the regulatory environment affecting our customers;

 

 

our ability to expand our sales and marketing operations;

 

 

our ability to successfully integrate any acquired businesses, technologies, or assets;

 

 

the announcement of new significant contracts or customer relationships;

 

 

the procurement cycles of our customers and the length of our sales cycles;

 

 

changes in end-user customer integration of our products into their business needs;

 

 

variations in the number of new customers booked in a prior quarter, but not delivered until later quarters;

 

 

our mix of products and royalty revenues;

 

 

new competitive product launches by our end-user customers that negatively impact sales or our sales cycle;

 

 

pricing, including discounts by us or our competitors;

 

 

our ability to successfully sell our products in a timely manner;

 

 

our ability to forecast demand and manage lead times for the recruitment and training of required personnel;

 

 

our ability to develop and introduce new products and features to existing products that achieve market acceptance;

 

 

the announcement of a new product, which may cause sales cycles to lengthen;

 

 

federal or state government shutdowns; and,

 

 

future accounting pronouncements and changes in accounting policies.

 

 

If we fail to offer high-quality products and support for any of our products, our operating results and our ability to sell those products in the future will be harmed.

 

Our ability to sell our products depends on our product support team providing high-quality support.  Once our products are integrated into an end-user customer’s planned use, the end-user customer typically depends on our product support team to help resolve technical issues, if they develop, and assist in optimizing the use of our products.  If we do not effectively assist our end-user customers in integrating our products, succeed in helping our end-user customers quickly resolve technical and other post-integration issues, or provide effective ongoing support services, our ability to expand the use of our products within existing end-user customers and to sell our products to new customers will be harmed.  If integration of our products is deemed unsatisfactory, we may incur significant costs to attain and sustain end-user customer satisfaction or, in extreme cases, our end-user customers may choose not to use our products.  In addition, as we hire new engineering personnel, we may inadvertently hire underperforming people who will have to be replaced, or fail to effectively train such employees, leading in some instances to slower growth, additional costs, and poor customer relations.

 

As we continue to pursue opportunities for larger sales volumes that have greater technical complexity or involve the integration of our untested products, we may experience a more extended time for our products to be integrated.  As a result, our product sales revenue may be delayed.  Additionally, as we enter agreements with new and existing customers for larger and more complex sales, we have been, and may continue to be, required to agree to end-user customer acceptance and cancellation clauses.  With acceptance clauses, delays may occur in obtaining end-user customer acceptance regardless of the quality of our products and may cause us to defer revenue recognition where such acceptance provisions are substantive in nature, or they may require us to incur additional costs to obtain such end-user customer acceptance.  Cancellation clauses may result in a customer canceling an order for products, impacting our revenues.

 

Our sales cycles can be lengthy, and it is difficult for us to predict when or if sales will occur.

 

Our sales efforts are often targeted at larger end-user customers and distributors.  As a result, we face higher costs, must devote greater sales support to individual customers, have longer sales cycles, and have less predictability in completing some of our sales.  Also, sales to large end-user customers and distributors often require us to provide greater levels of education regarding the use and benefits of our products.  Our sales cycle length could be 12 to 24 months, depending on the end-user customer’s industry base and economic factors beyond our control, as measured from the point of initial contact with a potential customer to the time a purchase order is signed.

 

We believe that our customers view the purchase of our products as a significant and strategic decision.  As a result, customers carefully evaluate our products, often over long periods with various internal constituencies.  In addition, the sales of our products may be subject to delays if the customer has lengthy internal budgeting, integration, and approval and evaluation processes.  As a result, it is difficult to predict the timing of our future sales.

 

We depend on our management team and our key sales and development, and engineering personnel.  The loss of one or more key employees or groups could harm our business and prevent us from implementing our business plan in a timely manner.

 

Our success depends on our executive officers’ expertise, efficacy, and continued services.  We have, in the past, and may in the future, continue to experience changes in our executive management team resulting from the departure of executives or subsequent hiring of new executives, which may be disruptive to our business.  Any changes in business strategies or leadership can create uncertainty, may negatively impact our ability to execute our business strategy quickly and effectively, and ultimately be unsuccessful.  In addition, the impact of hiring new executives may not be immediately realized.  We are also substantially dependent on the continued service of our existing research and development personnel because of their familiarity with the inherent complexities of our products.

 

Failure to adequately expand and train our direct sales force and distributors will impede our growth.

 

We rely almost exclusively on our direct sales force and distributors to sell our products.  We believe that our future growth will depend significantly on the continued development of our direct sales force and distributor relationships and their ability to manage and retain our existing end-user customer base, expand the sales of our products to existing end-user customers, and obtain new end-user customers.  Because our products are complex and often must interoperate with complex technological functionality, it can take longer for our sales personnel and distributors to become fully productive.  Therefore, our ability to achieve significant growth in revenues in the future will depend, in large part, on our success in recruiting, training, and retaining a sufficient number of direct sales personnel and growing our distributor base.  New hires require significant training and may, in some cases, take considerable time before becoming fully productive, if at all.  If we are unable to hire and develop sufficient numbers of productive direct sales personnel, and if these sales personnel are unable to achieve full productivity, sales of our products will suffer, and our growth will be impeded.

 

If we fail to increase market awareness of our brand and products, expand our sales and marketing operations, improve our sales execution, and increase our sales channels, our business could be harmed.

 

We intend to continue to add personnel and resources in sales and marketing as we focus on expanding awareness of our brand and products and capitalize on sales opportunities with new and existing customers.  Our efforts to improve sales of our products will increase our sales and marketing expenses and general and administrative expense, and these efforts may not be successful. Some newly hired sales and marketing personnel may become unproductive and have to be replaced, resulting in operational and sales delays and incremental costs.  If we cannot significantly increase the awareness of our brand and products or effectively manage the costs associated with these efforts, our business, financial condition, and operating results could be harmed.

 

We must improve our sales execution to, among other things, increase the number of our sales opportunities and grow our revenues.  We must enhance the market awareness of our products, expand our relationships with our distributor partners, and create new distributor partnerships to increase our revenues.  Further, we must continue to develop our relationships with new and existing end-user customers and distributor partners and create additional sales opportunities to effectively and efficiently extend our geographic reach and market penetration.  Our efforts to improve our sales execution could result in a material increase in our sales and marketing expenses and general and administrative expense.  There can be no assurance that such efforts will be successful.  Further, as we increase our efforts to target additional industry bases and leverage distributor partnerships to drive sales, we may be unable to tailor our sales efforts to these strategies.  If we are unable to improve our sales execution significantly, increase the awareness of our products, create additional sales opportunities, expand our relationships with distributor partners, leverage our relationship with existing distributor partners, or effectively manage the costs associated with these efforts, our operating results and financial condition could be materially and adversely affected.

 

 

Our revenues are dependent on our ability to maintain and expand existing customer relationships and our ability to attract new customers.

 

The continued growth of our revenues depends partly on our ability to expand the use of our products by existing end-user customers and attract new customers.  Our customers have no obligation to repeat purchases from us, and there can be no assurance that they will do so.  We have had in the past, and may in the future, end-user customers discontinue using some of our products, which may impact such end-user customers’ decisions to continue to use any of our products.

 

If we cannot expand our end-user customers’ use of our products, maintain our repeat customer purchase rates and expand our customer base, our revenues may decline or fail to increase at historical growth rates, adversely affecting our business and operating results.  In addition, if our customers experience dissatisfaction with our products in the future, we may find it more difficult to increase the use of our products within our existing end-user customer base, and it may be more difficult to attract new customers, or we may be required to grant credits or refunds, any of which could negatively impact our operating results and materially harm our business.

 

Our business is subject to the risks of earthquakes, fire, floods, and other natural catastrophic events and interruption by man-made problems such as power disruptions or terrorism.

 

Our corporate headquarters are located in the Greensboro, North Carolina area.  Most of our third-party service providers are located in South Asia, a region known to suffer terrorism and natural disasters, including floods, typhoons, droughts, epidemics, or contagious diseases.  A significant natural disaster, such as a fire or a flood, epidemic, or contagious disease, such as the COVID-19 pandemic, occurring at our headquarters or where our third-party service providers are located, could harm our business, operating results, and financial condition.  In addition, acts of terrorism could cause disruptions in our business, the businesses of our customers and suppliers, or the economy as a whole.  We also rely on information technology systems to communicate among our workforce, which is coordinated within our corporate headquarters in Greensboro, North Carolina.  Any disruption to our internal communications, whether caused by a natural disaster, an epidemic or contagious disease, or by man-made problems, such as power disruptions, in the Greensboro, North Carolina area, Taiwan, Malaysia, Singapore, the Philippines, or where any of our customers are located could delay our research and development efforts, or cause delays or cancellations of customer orders.

 

Our use of open-source and non-commercial software components could impose risks and limitations on our ability to commercialize our products.

 

Our product development utilizes software modules licensed under open source and other types of non-commercial licenses.  We also may incorporate open source and other licensed software into our product development in the future.  However, the use and distribution of such software may entail more significant risks than third-party commercial software, as licenses of these types generally do not provide warranties or other contractual protections regarding infringement claims or the quality of the code.  In addition, some of these licenses require the release of our proprietary source code to the public if we combine our proprietary product development software with open-source software in certain manners.  This could allow competitors to create similar products with lower development effort and time and ultimately lose sales for us.

 

The terms of many open sources and other non-commercial licenses have not been judicially interpreted, and there is a risk that such licenses could be construed in a manner that could impose unanticipated conditions or restrictions on our ability to commercialize our products.  In such event, to continue offering our products, we could be required to seek licenses from alternative licensors, which may not be available on a commercially reasonable basis or at all, to re-engineer our products or to discontinue the sale of our products in the event we cannot obtain a license or re-engineer our products on a timely basis, any of which could harm our business and operating results.  In addition, if an owner of licensed software were to allege that we had not complied with the conditions of the corresponding license agreement, we could incur significant legal costs defending ourselves against such allegations.  If such claims were successful, we could be subject to substantial damages, be required to disclose our source code, or be enjoined from the distribution of our products.

 

Our reported financial results may be adversely affected by changes in accounting principles generally accepted in the United States.

 

GAAP is subject to interpretation by the Financial Accounting Standards Board (“FASB”), the SEC, and various bodies formed to promulgate and interpret appropriate accounting principles.  A change in these principles or interpretations could have a significant effect on our reported operating results and financial condition and could affect the reporting of transactions already completed before the announcement of a change.

 

If our estimates or judgments relating to our critical accounting policies prove to be incorrect, our operating results could be adversely affected.

 

The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes.  We base our estimates on historical experience, and other assumptions that we believe are reasonable under the circumstances.  The results of these estimates form the basis for making judgments about the carrying values of assets, liabilities, and equity and the amount of revenues and expenses that are not readily apparent from other sources. Significant estimates and judgments involve deferred income tax valuation allowances, the valuation of the share-based awards, and determining our Common Stock’s fair value.  Our operating results may be adversely affected if our assumptions change or if actual circumstances differ from those in our assumptions, which could cause our operating results to fall below the expectations of securities analysts and investors, resulting in a decline in the trading price of our Common Stock.

 

Relations between the Peoples Republic of China (PRC) and Taiwan could negatively affect our business and financial status and, therefore, the market value of your investment.

 

Taiwan has a unique international political status. The PRC does not recognize the sovereignty of Taiwan.  Although significant economic and cultural relations have been established in recent years between Taiwan and the PRC, relations have often been strained.  The government of the PRC has threatened to use military force to gain control over Taiwan in limited circumstances. A substantial portion of our manufacturing and packaging providers are located in Taiwan, and a material amount of our revenues are derived from the sales of our products manufactured and packaged in Taiwan.  Therefore, factors affecting military, political, or economic conditions in Taiwan could have a material adverse effect on our results of operations.

 

A significant disruption in the operations of our manufacturing and packaging service providers in Taiwan, such as a trade war or political unrest, could materially adversely affect our business, financial condition, and the results of operations.

 

Any disruption in the operations of our service providers in Taiwan or in their ability to meet our needs, whether as a result of a natural disaster or other causes, could impair our ability to operate our business on a day-to-day basis.  Furthermore, since many of these third parties are located outside the U.S., we are exposed to the possibility of disruption and increased costs in the event of changes in the policies of the U.S. or foreign governments, political unrest, or unstable economic conditions in any of the countries where we conduct such activities.  For example, a trade war could lead to higher tariffs.  Any of these matters could materially and adversely affect our product sales and shipment timelines, business, and financial condition.

 

 

RISKS RELATED TO REGULATORY REQUIREMENTS

 

Government regulation may adversely affect our business.

 

The effects of regulation may materially and adversely impact our business.  For example, the FCC’s regulatory policies relating to radio frequency emissions, consumer protection laws of the U.S. Federal Trade Commission, product safety regulatory activities of the U.S. Consumer Products Safety Commission, and environmental regulatory actions of the U.S. Environmental Protection Agency could impede sales of our products in the United States.  In addition, our customers and we are also subject to various import and export laws and regulations.  Should we fail to comply with these regulations, we may be unable to produce and deliver these products to specific customers, and we may become subject to investigations, sanctions, mandatory product recalls, enforcement actions, disgorgement of profits, fines, damages, civil and criminal penalties, or injunctions. Our business is also increasingly subject to complex foreign and U.S. laws and regulations, including but not limited to anti-corruption laws, such as the FCPA and equivalent laws in other jurisdictions, antitrust or competition laws, and data privacy laws, among others.  In addition, foreign governments may impose tariffs, duties, and other import restrictions on components we obtain from non-domestic suppliers and export restrictions on products that we sell internationally.  These tariffs, duties, or restrictions could materially and adversely affect our business, financial condition, and the results of operations.

 

New or revised environmental rules and regulations or other social initiatives could also impact our product or manufacturing standards.  Those rules, or similar rules adopted in other jurisdictions, could adversely affect our costs, the availability of minerals used in our products, and our relationships with customers and suppliers.

 

We may incur substantial expenses related to regulatory requirements, and any regulatory compliance failure could cause our business to suffer.

 

The wireless communications industry is subject to ongoing regulatory obligations and reviews.  Maintaining compliance with these requirements may result in significant additional expense to us, and any failure to maintain such compliance could cause our business to suffer.

 

Noncompliance with applicable regulations or requirements could also subject us to investigations, sanctions, mandatory product recalls, enforcement actions, disgorgement of profits, fines, damages, civil and criminal penalties, or injunctions.  An adverse outcome in such litigation could require paying contractual damages, compensatory damages, punitive damages, attorneys’ fees, and other costs.  These enforcement actions could harm our business, financial condition, and the results of operations.  If any governmental sanctions are imposed, or if we do not prevail in any possible civil or criminal litigation, our business, financial condition, and results of operations could be materially adversely affected.  In addition, responding to any action will likely result in a significant diversion of management’s attention and resources and increased professional fees.

 

We are subject to risks from international sales and operations.

 

We operate globally with sales personnel in multiple countries, and some of our business activities are concentrated in Asia.  As a result, we are subject to regulatory, geopolitical, and other risks associated with doing business outside the U.S., including:

 

 

global and local economic, social and political conditions and uncertainty;

 

currency controls and fluctuations;

 

formal or informal imposition of export, import or doing-business regulations, including trade sanctions, tariffs, and other related restrictions;

 

labor market conditions and workers’ rights affecting our manufacturing operations or those of our customers or suppliers;

 

disruptions in capital and securities and commodities trading markets;

 

occurrences of geopolitical crises such as terrorist activity, armed conflict, civil or military unrest or political instability, which may disrupt manufacturing, assembly, logistics, security, and communications and result in reduced demand for our products;

 

compliance with laws and regulations that differ among jurisdictions, including those covering taxes, intellectual property ownership and infringement, imports and exports, anti-corruption and anti-bribery, antitrust and competition, data privacy, and environment, health, and safety; and,

 

pandemics and similar major health concerns, including COVID-19, could adversely affect our business and customer order patterns.

 

Sales to customers located outside the U.S. accounted for approximately 56% of our revenue in 2022.  We expect that revenue from international sales will continue to be a significant part of our total revenue.  Any weakness in these economies could decrease demand for products that contain our products, which could materially and adversely affect our business.  The imposition by the U.S. of tariffs on goods imported from China and potentially other countries, countermeasures imposed by China in response, U.S. export restrictions on sales of products to China, and other government actions that restrict or otherwise adversely affect our ability to sell our products to Chinese customers may have a material impact on our business, including our ability to sell products and to manufacture or source components. As a company with significant sales outside of the U.S., our results may be affected by movements in currency exchange rates as we grow our sales network.  In addition, our exposure may increase or decrease over time as our foreign business levels fluctuate in the countries where we may have sales or operations.  These changes could have a material impact on our financial results.  The functional currency for our current operations and international sales is the U.S. dollar; however, that may expand to other currencies as we grow.

 

Economic regulation in China and other countries where we sell products could adversely impact our business and the results of operations.

 

A significant portion of our potential customer base is located in China and other countries outside of the U.S.  For many years, the Chinese economy has experienced periods of rapid growth and wide fluctuations in inflation.  In response to these factors, the Chinese government has, from time to time, adopted measures to regulate growth and contain inflation, including currency controls and measures designed to restrict credit, control prices, or set currency exchange rates.  Such actions in the future, as well as other changes in Chinese or other non-U.S. laws and regulations, including efforts in furtherance of reducing dependence on foreign semiconductor manufacturers, could increase the cost of doing business in other countries, foster the emergence of foreign competitors, decrease the demand for our products in those countries, or reduce the supply of necessary materials for our products, which could have a material adverse effect on our business and results of operations.

 

 

Changes in government trade policies, including the imposition of tariffs and export restrictions, have limited and could continue to limit our ability to sell or provide our products and other items to specific end-user customers, which may materially adversely affect our sales and the results of operations.

 

The U.S. and foreign governments have taken and may continue to take administrative, legislative, or regulatory action that could materially interfere with our ability to export, re-export, and transfer products and other items in certain countries, particularly in China.  For example, the imposition of tariffs has not had a direct, material adverse impact on our business; however, the direct and indirect effects of tariffs and other restrictive trade actions are difficult to measure and are only one part of economic and trade policy.

 

Furthermore, we have experienced and may continue to experience restrictions on our ability to export, re-export, and transfer our products and other items to specific foreign customers and suppliers where exports, re-exports, or transfers of products require export licenses or are prohibited by government action.

 

Even if such restrictions are lifted, any financial or other penalties or continuing export restrictions imposed on our customers could have a continuing negative impact on our future revenue and results of operations.  In addition, other foreign end-user customers or suppliers affected by future U.S. government sanctions or threats of sanctions may respond by developing new solutions to replace our products or by adopting our foreign competitors’ solutions.

 

We cannot predict what further actions may ultimately be taken concerning tariffs or other trade measures between the U.S. and China or other countries, what products or entities may be subject to such actions, or what steps may be taken by other countries in response.  The loss of foreign customers or suppliers or the imposition of restrictions on our ability to sell or transfer products to such customers or suppliers due to tariffs, export restrictions, or other U.S. regulatory actions could materially and adversely affect our sales and business and the results of operations.

 

Our business could be affected by sanctions and export controls targeting Russia and other responses to Russias invasion of Ukraine.

 

The Russia-Ukraine conflict may adversely affect our business.  Currently, we do not have any supply chain partners located in Russia or Ukraine.  Nor do we have any pending product sales or product shipments to Russian customers or, to our knowledge, any entities listed on the U.S. Department of the Treasury Office of Foreign Assets Control Sectoral Sanctions Identifications List dated March 8, 2023.  However, the related sanctions and other measures imposed by the European Union, the U.S., and other countries and organizations in response have led and may continue to lead, to disruption and instability in global markets, supply chains, and industries that could negatively impact our business, financial condition, and results of operations.  We have taken steps to ensure our export control processes and controls observe enacted and evolving export sanctions imposed upon Russia, Belarus, and all restricted entities that have been identified by the United States government.  Nevertheless, if we inadvertently make any product sales or shipments to Russian customers or any sanctioned entities, such non-compliance may have a material effect on our financial condition or operations.

 

Due to the unknown evolution of sanctions and export controls targeting the Peoples Republic of China (PRC) and its ability to purchase and manufacture certain semiconductor chips, our business could be adversely affected.

 

On October 7, 2022, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) announced a series of regulations – issued as an interim final rule – amending the Export Administration Regulations to enhance export controls on a range of goods, software, and technology and restrict the PRC’s ability to purchase and manufacture advanced computing chips.  The regulations imposed new controls on items relating to advanced computer and semiconductor manufacturing capabilities, broadened end-use restrictions, expanded the scope of foreign-produced items subject to licensing requirements, and added to Entity List prohibitions.  We do not anticipate these regulations will have a material effect on our financial condition or operations.  The production of our high-performance MMICs is not reliant on any manufacturing in the PRC, or, to our knowledge, on any companies that are owned by the PRC or Chinese investors.  In 2022, we received only four percent of all our sales from customers located within the PRC.  RF semiconductors, such as what we design and produce, are not currently covered under the BIS restrictions.  We have taken steps to ensure our export control processes and controls observe enacted and evolving export sanctions imposed upon the PRC and all restricted entities that have been identified by the United States government.  Nevertheless, if we inadvertently make any product sales or shipments to any sanctioned entities, such non-compliance may have a material effect on our financial condition or operations.

 

We may be subject to theft, loss, or misuse of personal data by or about our employees, customers, or other third parties, which could increase our expenses, damage our reputation, or result in legal or regulatory proceedings.

 

In the ordinary course of our business, we have access to sensitive, confidential, or personal data or information regarding our employees and others that is subject to privacy and security laws and regulations.  Therefore, the theft, loss, or misuse of personal data collected, used, stored, or transferred by us to run our business, or by our third-party service providers, including business process software applications providers and other vendors that have access to sensitive data, could result in damage to our reputation, disruption of our business activities, significantly increased business and security costs or costs related to defending legal claims.

 

Global and domestic privacy legislation, enforcement, and policy activity in this area are rapidly expanding and creating a complex regulatory compliance environment.  For example, the European Union adopted the General Data Protection Regulation (“GDPR”), which requires companies to comply with rules regarding the handling of personal data, including its use, protection, and the ability of persons whose data is stored to correct or delete such data about themselves.  Failure to meet GDPR requirements could result in penalties of up to 4% of worldwide revenue.  In addition, the interpretation and application of consumer and data protection laws in the U.S., Europe, and elsewhere are often uncertain and fluid and may be interpreted and applied in a manner that is inconsistent with our data practices.  As a result, complying with these changing laws has caused, and could continue to cause, us to incur substantial costs, which could harm our business and the results of operations.  Further, failure to comply with existing or new rules may result in significant penalties or orders to stop the alleged non-compliant activity.  Finally, even our inadvertent failure to comply with federal, State, or international privacy-related or data protection laws and regulations could result in audits, regulatory inquiries, or proceedings against us by governmental entities or others.

 

The semiconductor industry is heavily regulated.  Therefore, any material changes in the political, economic, or regulatory semiconductor environment that affect the purchasing business or the purchasing practices and operations of organizations that utilize semiconductor industry products, or that lead to consolidation in our end-user customer industries, could require us to modify our products available to customers for purchase.

 

Our ability to grow will depend upon the economic environment of our end-user customer industries and our ability to increase the number of products that we sell to our customers.  Our end-user customer industry bases often have different regulatory requirements, and they are subject to changing political, economic, and regulatory influences.  As a result, changes in regulations affecting our end-user customers could require us to make unplanned modifications to our products, result in delays or cancellations of orders, or reduce demand for our products.

 

 

RISKS RELATED TO OWNERSHIP OF OUR COMMON STOCK

 

The market price and trading volume of our Common Stock may be volatile and could decline.

 

The market price and trading volume of our Common Stock could fluctuate substantially due to a variety of factors, including market perception of our ability to meet our growth projections and expectations, quarterly operating results of other companies in the same industry, trading volume in our Common Stock, changes in general conditions in the economy and the financial markets or other developments affecting our business and the business of others in our industry.  In addition, the stock market itself is subject to extreme price and volume fluctuations.  This volatility has had a significant effect on the market price of securities issued by many companies for reasons related and unrelated to their operating performance and could have the same effect on our Common Stock.  The market price of shares of our Common Stock could be subject to wide fluctuations in response to many risk factors listed in this section, and others beyond our control, including:

 

 

the realization of any of the risk factors presented in this prospectus;

 

actual or anticipated differences in our estimates, or in the estimates of analysts, for our revenues, results of operations, level of indebtedness, liquidity, or financial condition;

 

additions and departures of key personnel;

 

failure to comply with the requirements of the OTC Markets Group, or following our potential uplisting on Nasdaq or another national securities exchange;

 

failure to comply with the Sarbanes-Oxley Act or other laws or regulations;

 

changes to electronic communication and transmission laws governing the semiconductor industry;

 

future issuances, sales, resales or repurchases or anticipated issuances, sales, resales or repurchases, of our Common Stock;

 

publication of research reports about us, or the semiconductor industry generally;

 

the performance and market valuations of other similar companies;

 

broad disruptions in the financial markets, including sudden disruptions in the credit markets;

 

speculation in the press or investment community;

 

actual, potential or perceived control, accounting or reporting problems; and,

 

changes in accounting principles, policies and guidelines.

 

In the past, securities class-action litigation has often been instituted against companies following periods of volatility in the market price of their shares.  This type of litigation could result in substantial costs and divert our management’s attention and resources, which could have a material adverse effect on us.

 

Our Common Stock is quoted on an OTC Markets Group trading platform, the OTCQX, instead of a national exchange or quotation system.  Accordingly, our investors may experience significant volatility in the market price of our stock and have difficulty selling their shares.

 

Our Common Stock is currently quoted on an OTC Markets Group trading platform, the OTCQX, under the ticker symbol “GUER.”  The OTC Markets Group is a regulated quotation service that displays real-time quotes, last sale prices, and volume limitations in over-the-counter securities.  Trading in shares quoted on an OTC Markets Group trading platform is often thin and characterized by volatility in trading prices.  This volatility may be caused by a variety of factors, including the lack of readily available price quotations, the absence of consistent administrative supervision of bid and ask quotations, lower trading volume, and market conditions.  As a result, there may be wide fluctuations in the market price of the shares of our Common Stock for reasons unrelated to operating performance, and this volatility, when it occurs, may have a negative effect on the market price for our securities.  Moreover, the OTC Markets Group is not a stock exchange, and trading of securities on one of its trading platforms is often more sporadic than the trading of securities listed on a national quotation system or stock exchange.  Accordingly, our stockholders may not be able to realize a fair price from their shares when they determine to sell them or may have to hold them for a substantial period of time until the market for our Common Stock improves.

 

Because we became a reporting company under the Exchange Act by means other than a traditional underwritten initial public offering, we may not be able to attract the attention of research analysts at major brokerage firms.

 

Because we did not become a reporting company by conducting an underwritten initial public offering of our Common Stock, and because we are not listed on a national securities exchange, security analysts of brokerage firms may not provide coverage of our Company.  In addition, investment banks may be less likely to agree to underwrite secondary offerings on our behalf than they might if we became a public reporting company by means of an underwritten initial public offering, because they may be less familiar with our Company as a result of more limited coverage by analysts and the media, and because we became public at an early stage in our development.  The failure to receive research coverage or support in the market for our shares could have an adverse effect on our ability to develop a liquid market for our Common Stock.

 

We are an emerging growth company and a smaller reporting company, and any decision on our part to comply only with certain reduced reporting and disclosure requirements applicable to emerging growth companies and smaller reporting companies could make our Common Stock less attractive to investors.

 

We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups (“JOBS”) Act, and, for as long as we continue to be an emerging growth company, we may choose to take advantage of exemptions from various reporting requirements applicable to other public companies but not to emerging growth companies, including:

 

 

not being required to have our independent registered public accounting firm audit our internal control over financial reporting under Section 404 of the Sarbanes-Oxley Act;

 

reduced disclosure obligations regarding executive compensation in our periodic reports and Annual Report on Form 10-K; and,

 

exemptions from the requirements of holding non-binding advisory votes on executive compensation and stockholder approval of any golden parachute payments not previously approved.

 

We could be an emerging growth company for up to five years.  Our status as an emerging growth company will end as soon as any of the following takes place:

 

 

the last day of the fiscal year in which we have more than $1.07 billion in annual revenues;

 

the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates;

 

the date on which we have issued, in any three-year period, more than $1.0 billion in non-convertible debt securities; or,

 

the last day of the fiscal year ending after the fifth anniversary of the completion of the first sale of our equity securities pursuant to a registration statement under the Securities Act.

 

 

We cannot predict if investors will find our Common Stock less attractive if we choose to rely on any of the exemptions afforded emerging growth companies.  If some investors find our Common Stock less attractive because we rely on any of these exemptions, there may be a less active trading market for our Common Stock and the market price of our Common Stock may be more volatile.

 

Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards apply to private companies.  We have elected to avail ourselves of this provision of the JOBS Act.  As a result, we will not be subject to new or revised accounting standards at the same time as other public companies that are not emerging growth companies.  Therefore, our consolidated financial statements may not be comparable to those of companies that comply with new or revised accounting pronouncements as of public company effective dates.

 

We are also a “smaller reporting company” as defined in the Exchange Act.  We may continue to be a “smaller reporting company” even after we are no longer an emerging growth company.  We may take advantage of certain of the scaled disclosures available to smaller reporting companies and will be able to take advantage of these scaled disclosures for so long as our Common Stock held by non-affiliates is less than $250.0 million measured on the last business day of our second fiscal quarter, or our annual revenues are less than $100.0 million during the most recently completed fiscal year and our Common Stock held by non-affiliates is less than $700.0 million measured on the last business day of our second fiscal quarter.

 

We may face risks related to securities litigation that could result in significant legal expenses and settlement or damage awards.

 

We may in the future become subject to claims and litigation alleging violations of the securities laws or other related claims, which could harm our business and require us to incur significant costs.  Significant litigation costs could impact our ability to comply with certain financial covenants under our credit agreement.  We are generally obliged, to the extent permitted by law, to indemnify our current and former directors and officers who are named as defendants in these types of lawsuits.  Regardless of the outcome, litigation may require significant attention from management and could result in significant legal expenses, settlement costs, or damage awards that could have a material impact on our financial position, results of operations, and cash flows.

 

Anti-takeover provisions in our charter documents and under Delaware law could make an acquisition of us, which may be beneficial to our stockholders, more difficult and may prevent attempts by our stockholders to replace or remove our current management.

 

Our certificate of incorporation and our bylaws contain provisions that could delay or prevent a change in control of our company.  These provisions could also make it difficult for stockholders to elect directors who are not nominated by current members of our Board of Directors or take other corporate actions, including effecting changes in our management. These provisions:

 

 

establish a classified board of directors so that not all members of our board are elected at one time;

 

permit only the board of directors to establish the number of directors and fill vacancies on the board;

 

provide that directors may only be removed “for cause” and only with the approval of two-thirds of our stockholders;

 

require super-majority voting to amend some provisions in our restated certificate of incorporation and restated bylaws;

 

authorize the issuance of “blank check” preferred stock that our board could use to implement a stockholder rights plan;

 

eliminate the ability of our stockholders to call special meetings of stockholders;

 

prohibit stockholder action by written consent, which requires all stockholder actions to be taken at a meeting of our stockholders;

 

prohibit cumulative voting; and,

 

establish advance notice requirements for nominations for election to our board or for proposing matters that can be acted upon by stockholders at annual stockholder meetings.

 

In addition, our certificate of incorporation provides that the Court of Chancery of the State of Delaware will be the exclusive forum for:  any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law (“DGCL”), our certificate of incorporation, or our bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine.

 

Section 22 of the Securities Act creates concurrent jurisdiction for federal and State courts over all claims brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.  Our restated bylaws will provide that the federal district courts of the United States of America will, to the fullest extent permitted by law, be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act (“Federal Forum Provision”).  Our decision to adopt a Federal Forum Provision followed a decision by the Supreme Court of the State of Delaware holding that such provisions are facially valid under Delaware law.  While there can be no assurance that federal courts or state courts will follow the holding of the Delaware Supreme Court or determine that the Federal Forum Provision should be enforced in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in state court.  While neither the exclusive forum provision nor the Federal Forum Provision applies to suits brought to enforce any duty or liability created by the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder.  Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder also must be brought in federal court.  Thus, our stockholders will not be deemed to have waived our compliance with the federal securities laws and the regulations promulgated thereunder.

 

Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision.  These provisions may limit a stockholder’s ability to bring a claim in a judicial forum of their choosing for disputes with us or our directors, officers, or other employees, which may discourage lawsuits against us and our directors, officers, and other employees.

 

In addition, Section 203 of the DGCL may discourage, delay or prevent a change in control of our company.  Section 203 imposes certain restrictions on mergers, business combinations, and other transactions between us and holders of 15% or more of our Common Stock.

 

If securities or industry analysts do not publish research or publish unfavorable or inaccurate research about our business, our stock price and trading volume could decline.

 

Our stock price and trading volume can be heavily influenced by the way analysts and investors interpret our financial information and other disclosures.  Securities and industry analysts do not currently, and may never, publish research on our business.  If few securities or industry analysts commence coverage of us, our stock price could be negatively affected.  If securities or industry analysts downgrade our Common Stock or publish negative reports about our business, our stock price would likely decline.  If one or more of these analysts cease coverage of us or fail to publish reports on us regularly, demand for our Common Stock could decrease, which might cause our stock price to decline and could decrease the trading volume of our Common Stock.

 

 

The designation of our Common Stock as penny stock would limit the liquidity of our Common Stock.

 

Our Common Stock may be deemed a “penny stock” (as that term is defined under Rule 3a51-1 of the Exchange Act).  Generally, a “penny stock” is a common stock that is not listed on a securities exchange and trades for less than $5.00 a share.  Prices often are not available to buyers and sellers and the market may be very limited.  Penny stock in start-up companies is among the riskiest equity investments.  Broker-dealers who sell penny stock must provide purchasers with a standardized risk disclosure document prepared by the SEC.  The document provides information about penny stock and the nature and level of risks involved in investing in the penny stock market.  A broker must also provide purchasers with bid and offer quotations and information regarding broker and salesperson compensation and make a written determination that the penny stock is a suitable investment for the purchaser and obtain the purchaser’s written agreement to the purchase.  Many brokers choose not to participate in penny stock transactions.  If our Common Stock is deemed “penny stock”, because of penny stock rules, there may be less trading activity and stockholders are likely to have difficulty selling their shares.

 

We do not anticipate paying dividends on our Common Stock, and investors may lose the entire amount of their investment.

 

Cash dividends have never been declared or paid on our Common Stock, and we do not anticipate such a declaration or payment for the foreseeable future.  Any future determination about the payment of dividends will be made at the discretion of our Board of Directors and will depend upon our earnings, if any, capital requirements, operating and financial conditions, contractual restrictions, including any loan or debt financing agreements, and on such other factors as our Board of Directors deems relevant.  In addition, we may enter into agreements in the future that could contain restrictions on payments of cash dividends.  We expect to use future earnings, if any, to fund business growth.  Therefore, stockholders will not receive any funds absent a sale of their shares of our Common Stock.  If we do not pay dividends, our Common Stock may be less valuable because a return on your investment will only occur if our stock price appreciates.  We cannot assure stockholders of a positive return on their investment when they sell their shares, nor can we assure that stockholders will not lose the entire amount of their investment.

 

FINRA sales practice requirements may limit a stockholders ability to buy and sell our stock.

 

The Financial Industry Regulatory Authority (“FINRA”) has adopted rules requiring that, in recommending an investment to a customer, a broker-dealer must have reasonable grounds for believing that the investment is suitable for that customer.  Prior to recommending speculative or low-priced securities to their non-institutional customers, broker-dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives, and other information.  Under interpretations of these rules, FINRA has indicated its belief that there is a high probability that speculative or low-priced securities will not be suitable for at least some customers.  If these FINRA requirements are applicable to us or our securities, they may make it more difficult for broker-dealers to recommend that at least some of their customers buy our Common Stock, which may limit the ability of our stockholders to buy and sell our Common Stock and could have an adverse effect on the market for and price of our Common Stock.

 

Substantial future sales of shares of our Common Stock could cause the market price of our Common Stock to decline.

 

In connection with the Merger, holders of approximately 21,483,584 shares of our Common Stock agreed, subject to certain exceptions, not to dispose of or hedge any shares of our Common Stock until the date 12 months after the first date on which our Common Stock was first quoted on the OTCQX market (the “lock-up period”). Our Common Stock was first quoted on the OTCQX on May 13, 2022.  The resale, or expected or potential resale, of a substantial number of shares of our Common Stock in the public market following the end of the lock-up period could adversely affect the market price for our Common Stock and make it more difficult for you to sell shares of our Common Stock at times and prices that you feel are appropriate. Sales of a substantial number of such shares upon expiration of the lock-up period, or the perception that such sales may occur, could cause our market price to fall or make it more difficult for you to sell your Common Stock at a time and price that you deem appropriate.

 

Future sales and issuances of our securities could result in additional dilution of the percentage ownership of our shareholders and could cause our share price to fall.

 

We expect that significant additional capital will be needed in the future to continue our planned operations, including research and development, increased marketing, hiring new personnel, commercializing our products, and continuing activities as an operating public company.  To the extent we raise additional capital by issuing equity securities, our shareholders may experience substantial dilution.  We may sell common Stock, convertible securities, or other equity securities in one or more transactions at prices and in a manner we determine from time to time.  If we sell common Stock, convertible securities, or other equity securities in more than one transaction, investors may be materially diluted by subsequent sales.  Such sales may also result in material dilution to our existing shareholders, and new investors could gain rights superior to our existing shareholders.

 

 

USE OF PROCEEDS

 

We are filing the registration statement of which this prospectus forms a part to permit holders of the shares of Common Stock described in the section entitled “Selling Stockholders” to resell such shares. We will not receive any proceeds from the resale of any shares offered by this prospectus by the selling stockholders.

 

 

DIVIDEND POLICY

 

We have never declared or paid cash dividends on our capital stock, and we do not anticipate paying any cash dividends on our capital stock in the foreseeable future. We currently intend to retain all available funds and future earnings to fund ongoing operations and future capital requirements. Any future determination to pay dividends will be at the discretion of our board of directors and will be dependent upon our financial condition, results of operations, capital requirements and such other factors as the board of directors deems relevant.

 

 

DETERMINATION OF OFFERING PRICE

 

Our Common Stock was cleared for trading on the OTCQX, an OTC Markets Group trading platform, under the symbol “GUER” and began trading on May 13, 2022. The selling stockholders may sell all or a portion of their shares through public or private transactions at prevailing market prices or at privately negotiated prices.

 

Except to the extent that we are involved in an underwritten secondary offering of Common Stock, if any, by the selling stockholders, all shares being offered pursuant to this prospectus will be sold by the selling stockholders without our involvement.

 

 

MARKET INFORMATION FOR OUR COMMON STOCK

 

Our Common Stock became quoted on the OTCQX, an OTC Markets Group trading platform, on May 13, 2022.

 

As of March 1, 2023, we have 40,550,624 shares of Common Stock outstanding held by approximately 467 beneficial owners and approximately 237 stockholders of record.

 

 

DESCRIPTION OF OUR BUSINESS

 

We were incorporated in the State of Delaware on November 9, 2020. Guerrilla RF was incorporated in the State of Delaware on June 23, 2014. Pursuant to the Merger, on October 22, 2021, our wholly-owned subsidiary, Acquisition Sub, merged with and into Guerrilla RF. Guerrilla RF was the surviving corporation in the Merger and became our wholly-owned subsidiary, and the business of Guerrilla RF became our business.

 

Our telephone number is (336) 510-7840. Our website address is www.guerrilla-rf.com. Information contained on, or that can be accessed through, our website is not a part of this prospectus.

 

Glossary of Terms and Abbreviations

 

64T64R, 32T32R, 16T16R, 8T8R systems — Describes the number of transmit and receive paths in a 5G system architecture.

 

5G — A technology standard to increase the speed or amount of data communicated in a cellular network relative to 3G or LTE networks.

 

AEC-Q100 — Automotive Electronic Council’s electronic stress qualification standard for integrated circuits.

 

Cellular booster/DAS — System which extends and distributes a cellular signal within buildings such as below-ground, large-area, or high-rise structures.

 

Cellular Compensator — Improves a cellular link inside a motorized vehicle by using an antenna outside the vehicle in combination with amplifiers to boost the signal in both the transmit and receive paths.

 

Cellular Repeater — Improves poor cellular service by boosting signal strength inside a building or structure.

 

C-V2X — Cellular-technology-based vehicle-to-everything communication standard.

 

CMOS — Complementary MOS (metal oxide semiconductor), widely used semiconductor transistor architecture.

 

Copper lead frame — Copper-based substrate used as a foundation for semiconductor packages.

 

DAB — Digital audio broadcasting. A terrestrial-based digital radio standard (HD Radio).

 

Design win — Acknowledgment by an end-user customer that a product has been chosen or finalized for use in the customer’s system or application.

 

Die/Chip — An individual semiconductor device on the wafer.

 

Distribution-customer — A customer that purchases Guerrilla RF products to sell to a third-party rather than for its own use.

 

DSA — Digital step attenuator.

 

DSRC — Dedicated short-range communications. (Typically used in electronic toll collection).

 

End-user customer — The ultimate customer that utilizes or incorporates our products into its own products or solutions whether it purchased our products directly from Guerrilla RF or a third party.

 

EAR — Export Administration Regulation.

 

 

Fab — Fabrication, generally refers to a semiconductor wafer fabrication facility.

 

Fabless — Semiconductor company that utilizes pure-play or outsourced wafer fabrication partners rather than owning and operating their own wafer foundry.

 

FM/DAB — Terrestrial-based radio broadcast standards.

 

GaN — Gallium nitride semiconductor process used in high-power amplifier applications.

 

GaAs HBT — Gallium arsenide heterojunction bipolar transistor. A semiconductor process allowing higher efficiency and improved linearity compared to GaAs MESFET processes.

 

GaAs pHEMT — Gallium Arsenide pseudomorphic high electron mobility transistor. A semiconductor process that allows larger bandgap differences, thus providing higher performance than a GaAs MESFET technology.

 

Gain blocks, switches, power detectors, drivers, mixers, digital step attenuators, high power amplifiers — Functional building blocks of RF components in a typical radio frequency system or architecture.

 

GHz — Frequency of operation (in Gigahertz) in an RF system.

 

GPS/GNSS — Global satellite positioning technologies.

 

IP — Intellectual property.

 

LNA — Low noise amplifier.

 

Linear driver amplifier — An amplifier used before the final amplification stage that produces increased power levels while adding minimal distortion to the output signal.

 

mMIMO active antenna array — Massive multiple-input and multiple-output antenna systems that include beamforming ability.

 

MMIC — Monolithic microwave integrated circuit. An integrated circuit designed to utilize microwave frequency bands. (300MHz to 300GHz).

 

MESFET — Metal-semiconductor field-effect transistor, a type of transistor.

 

OEM — Original equipment manufacturers.

 

PA — Power Amplifier.

 

Package lead frame — Substrate (typically copper) used as a foundation to mount and package semiconductor devices.

 

pHEMT — Pseudomorphic high electron mobility transistor, a type of transistor.

 

Point-to-point radio — Radio link used between two communication endpoints or devices.

 

RF — Radio frequency.

 

RFIC — Radio frequency integrated circuit.

 

RFID — Radio frequency identification.

 

SDARS — Satellite Digital Audio Radio Service (e.g., Sirius XM Satellite Radio).

 

Si — Silicon — Standard fabrication process used for semiconductor processing.

 

SOI — Silicon on insulator. Fabrication process used for semiconductor manufacturing. This process choice is beneficial to reduce parasitic capacitance for a device.

 

Tape and reel — A method of packing surface mount devices by placing each device in an individual pocket on a carrier tape. Clear tape is applied to contain the device within the pocket. The carrier tape is wound on a reel, easing device handling and transportation.

 

Telematics — The convergence of telecommunications and information processing. The term is generally used for describing systems used in motor vehicles.

 

UWB — Ultra-wideband Radio technology using very low energy levels for short-range, high-bandwidth communications.

 

V2X — Vehicle-to-everything. Communication technology to allow vehicles to communicate with other vehicles, infrastructure, pedestrian devices, etc.

 

Wafer — Thin slice of semiconductor material used as the substrate for building electronic circuits. Wafers are the output from the semiconductor foundry process before the assembly/packaging processes.

 

WiFi — Wireless network protocol, based on the IEEE 802.11 family of standards.

 

Wireless backhaul point-to-point — A method used by communication providers to use wireless data links to connect radio towers or the core network.

 

Wireless infrastructure — Systems designed or used by network operators or other professionals to ensure strong communication links to consumers or customers.

 

 

Overview of Guerrilla RF

 

Guerrilla RF is a fabless semiconductor company based in Greensboro, N.C. Guerrilla RF was founded in 2013 with a mission to employ RF semiconductor technology to deliver RF solutions to customers in underserved markets. Over the past several years, Guerrilla RF has become a leader in developing high-performance MMIC products for wireless connectivity. It continues to target underserved markets and customers, delivering a range of high-performance MMIC products and associated technical support to a diverse set of customers that enable a more connected world.

 

Guerrilla RF possesses in-house design, applications, sales, and customer support functions as a fabless semiconductor company. It outsources the manufacture and production of its MMIC products to subcontractors located overseas, providing access to multiple semiconductor process technologies. Guerrilla RF’s primary external wafer foundries are in Taiwan and Singapore, and its primary assembly and test suppliers are located in Malaysia and the Philippines.

 

Our Industry

 

Global demand for ubiquitous, always-on connectivity has increased over the past several years, driving data traffic over wireless and wired networks.  We believe that wireless and wired markets are undergoing multi-year technology upgrade cycles to keep pace with this demand.

 

Cellular operators have been migrating to 5G technology to improve efficiency, increase data throughput, reduce signal latency, and enable massive machine-to-machine connectivity.  Because 5G networks operate on different frequencies (low-, mid-, and high-band spectrum) and coexist with prior cellular standards, we believe 5G deployments will increase the content opportunity for Guerrilla RF’s infrastructure RF products.

 

As an example, over the past several years, automakers have added more entertainment and safety features to their automobiles due in part to customer demands and in part due to increased demand for electric vehicles (EV) and an increasing focus on the development of autonomous vehicle technologies.  We expect this trend to continue to increase demand for RF semiconductors in modern automobiles.  We believe this trend offers a growing content opportunity for Guerrilla RF’s automotive RF products.

 

The COVID-19 pandemic has placed even more demand on the need for contactless and wireless communication in all aspects of human existence.  Our technology helps meet that demand and facilitates rapid and contactless communication.

 

Our Markets

 

Our business is diversified across the following markets:  Wireless Infrastructure, Automotive, and Catalog Markets.

 

Wireless Infrastructure

 

The wireless infrastructure market is characterized by the deployment of 5G networks over sub-7 GHz and millimeter wave frequencies, often with mMIMO active antenna arrays, which may significantly increase the number of RF transmit and receive channels.  These 5G networks require a broad portfolio of highly efficient RF solutions that increase capacity and expand coverage in a compact form factor.  We support wireless infrastructure OEMs located across the globe with a broad portfolio of RF solutions serving all major/applicable frequency bands under 7 GHz.

Automotive

 

Next-generation wireless technologies are enabling new use cases in automotive wireless connectivity, including V2X applications that facilitate direct, high-speed communication.  These new use cases require complex RF solutions spanning multiple protocols, including GPS, satellite radio, DAB, WiFi, 5G (sub-7 GHz), and UWB.

 

Catalog Markets

 

Other markets (which we group and refer to as ‘Catalog Markets’) include satellite navigation, cellular repeaters, point-to-point radios, RFID/asset tracking, defense, wireless audio, and test and measurement, as well as other high-performance RF applications.  Our satellite navigation solutions enable precision location finding for agricultural, aviation, maritime, mining, and construction applications.  Our solutions for the cellular repeater and point-to-point radio markets facilitate network densification and expanded coverage.  Our offerings enable longer battery life and improved coverage for RFID/asset tracking and defense radios.  In addition, our portfolio of devices offering a wide range of gain, linearity, and noise figure performance lend themselves to use in various demanding applications in certain product markets, including those referenced above.

 

 

Our Products

 

Guerrilla RF’s portfolio of products has been developed to improve performance, reduce complexity, enable smaller form factors, and solve other critical RF challenges.

 

Wireless Infrastructure

 

Our solutions for mMIMO systems include LNAs, linear driver amplifiers, digital step attenuators, and discrete PAs.  In addition, we are in the course of developing GaN amplifier modules and SOI switches and continuing to grow our wireless infrastructure product offerings. 

 

Automotive

 

We provide automotive RF connectivity products, including LNAs, linear driver amplifiers, switches, PAs, and front-end solutions.  Our automotive products are designed to meet or exceed AEC-Q101 quality and reliability standards, and we supply automotive OEMs, tier-1 suppliers, and chipset vendors.

 

Catalog Markets

 

We supply various standard RF catalog components to several markets.  Our products’ unique combination of low noise, broad bandwidth, and high linearity suit many applications, including wireless audio equipment, defense and first responder 2-way radios, test and measurement equipment, cellular repeaters, and wireless backhaul point-to-point links.

 

Our Operations

 

Research and Development

 

Since our inception, Guerrilla RF has focused on under-served markets by providing industry-leading performance in discrete and integrated RF devices including ultra-low noise amplifiers (Ultra-LNAs), gain blocks, drivers, PAs, switches, mixers, power detectors, digital step attenuators, and infrastructure-class high power amplifiers.

 

We invest in research and development (“R&D”) to develop products necessary to serve our target markets.  Our R&D activities typically support competitive design win opportunities for significant programs at key customers, which require best-in-class performance, size, cost, and functional density.  We also invest in R&D to develop new products for broader market applications.  Our R&D efforts require us to focus on continuous improvement and innovation in fundamental areas, including software, simulation and modeling, systems architecture, circuit design, device packaging, module integration, and test-related materials and designs.

 

As a fabless semiconductor company, we utilize our wafer foundry manufacturing suppliers’ GaAs, GaN, and SOI CMOS process technologies.  We combine these technologies with proprietary design methods, IP, and applications engineering expertise to improve performance, increase integration and reduce the size and cost of our products.

 

 

We work with our package and test suppliers to develop and qualify advanced packaging technologies to reduce component size, improve performance and reduce package costs.  Our manufacturing partners’ capabilities enable us to bring these technologies to market in high volumes.  R&D expenses totaled $8.1 million for the year ended December 31, 2022, and $4.6 million for the year ended December 31, 2021.  R&D activities in 2022 focused on developing and releasing 18 new products to bring GRF’s product catalog to a total of 119 products at the end of 2022.

 

Raw Materials

 

We utilize an outsourced manufacturing model, and our manufacturing suppliers purchase raw materials to support our requirements.  Our suppliers typically use industry-standard raw materials, which reduces supply chain risk.  In addition, we purchase passive components for use in modules that include tuning components.

 

During 2020, 2021, and 2022, the semiconductor industry experienced supply constraints for specific raw materials, including wafers and package lead frames.  The industry continues to address these constraints, but we believe it may take another year or so for these constraints to ease.  Meanwhile, we work closely with our manufacturing partners, developing long-term strategic partnerships to forecast our product needs and achieve adequate manufacturing capacity to mitigate the risk of having limited availability of raw materials suppliers.  As a result of these strategic partnerships, we can add suppliers, redesign products using alternative raw materials, qualify multiple wafer foundries, and extend or add supply commitments to provide flexibility in our supply chain.

 

Manufacturing

 

We believe that our outsourced manufacturing strategy allows us to identify the optimum semiconductor process technology for each product while ensuring we pay competitive prices for manufacturing.  Our manufacturing suppliers are broadly distributed around the globe.  We qualify additional manufacturing sites and sources of supply to reduce the risk of supply interruptions or price increases, and we closely monitor our suppliers’ key performance indicators.  In addition, we seek to ensure that materials and manufacturing services are available from multiple sources.  Our product manufacturing comprises a two-step process:  wafer fabrication and packaging.  Wafers are produced in wafer foundries by subcontractors and shipped to our assembly subcontractors for packaging.  Most of our products are manufactured using a single die which is placed on a copper lead frame.  We use bond wires to connect terminals on the package to the appropriate pads on the die.  Material composition and wire length significantly affect the performance of the end product.  Once a product has completed manufacturing, each device is RF-tested to ensure it meets published specifications.  We transfer compliant devices to tape and reel -- the generally accepted method customers use in their downstream manufacturing processes.

 

We subcontract with multiple wafer foundries located in Taiwan and Singapore.  We currently utilize GaAs HBT, GaAs pHEMT, and SOI process technologies; however, we are currently developing new products using those technologies and GaN technologies.

 

We partner with multiple test and assembly (packaging) subcontractors in Malaysia and the Philippines, each of whom we consider highly experienced and well-suited to support our new product roadmap.  In addition, we believe that having multiple relationships provides us with additional capacity and flexibility, which is critical to risk mitigation.

 

Manufacturing yields vary significantly based on many factors, including product complexity, performance requirements, and the maturity of the chosen manufacturing processes.  To maximize wafer yields and quality, parameters are measured throughout the manufacturing process to ensure the systems are in control and produce the expected outputs.  Ongoing reliability monitoring and numerous quality control inspections are also conducted throughout the production flow to ensure that we deliver high-quality products to our customers.  Semiconductor fabrication is a specialized field requiring highly controlled and clean environments.  As a result, the die on a wafer can become defective due to minute impurities, variances in the fabrication process, or defects in the masks used to transfer circuit patterns onto the wafers.

 

Our subcontractors’ manufacturing facilities are certified to the ISO 9001 quality standard, and select locations are accredited to additional automotive (IATF 16949) and environmental (ISO 14001) standards.  These stringent standards are audited and certified by third-party certification bodies.  The ISO 9001 standard is the international standard for creating a quality management system.  IATF 16949 is the highest international quality standard for the global automotive industry and incorporates specific additional requirements for the automotive industry.  ISO 14001 is an internationally agreed-upon standard for an environmental management system.  Many of our key vendors and suppliers are certified to be compliant with these standards.

 

Our Customers

 

We design, develop, manufacture, and market products for leading domestic and international original equipment manufacturers and original design manufacturers.   We also collaborate with leading reference design partners and design consultants globally.

 

Approximately 79% and 80% of our product business in 2022 and 2021, respectively, was from sales to customers in the following markets:  Wireless Infrastructure, Automotive, and Cellular Boosters/DAS.  Approximately 93% and 92% of all of our product sales were made via distributors, and approximately 7% and 8% of sales were made directly to end-user customers in 2022 and 2021, respectively.

 

Our customers purchase RFIC and MMIC solutions for various applications, including base stations, satellite radio antennas, GPS/GNSS products, small cells, WiFi, cellular boosters, and compensators.

 

 

Governmental Regulation

 

The semiconductor industry in which we operate is regulated, and the products and solutions we provide are subject to a complex set of federal, State, and country-specific laws and regulations.  We are also subject to the U.S. Foreign Corrupt Practices Act (“FCPA”), which prohibits improper payments or offers of payments to foreign governments and their officials for the purpose of obtaining or retaining business and requires companies to maintain accurate books and records and a system of internal accounting controls.  Safeguards we implement to discourage improper payments or offers of payments by our employees, consultants, and others may be ineffective, and violations of the FCPA and similar laws may result in severe criminal or civil sanctions, or other liabilities or proceedings against us, any of which would likely harm our reputation, business, financial condition, and result of operations.

 

Import/Export Controls

 

Sales to international customers are subject to the U.S. Department of Commerce import/export controls.  A license may be required to export a product to a customer depending on the technical capability of the underlying product, the actual end customer purchaser, the known end use of the product, or due to the export country location.  Most of the products, services, and technologies that fall within the scope of the Export Administration Regulations are not specifically controlled for export and are classified as “EAR99”.   As of December 31, 2022, none of our products were subject to export licenses and, as such, were classified as EAR99.  As such, they fall under the U.S. Department of Commerce's jurisdiction and are not included in the U.S. Department of Commerce’s Control List.  We are also required to adhere to the Entity List published by the U.S. Department of Commerce’s Bureau of Industry and Security (https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list).

 

We are also subject to import/export controls, tariffs, and other trade-related regulations and restrictions in countries where we conduct business.  These controls, tariffs, regulations, and restrictions (including those related to, or affected by, United States-China relations, as discussed below) may impact our business, including our ability to sell products and manufacture or source components.

 

Environmental

 

Guerrilla RF and our overseas manufacturing subcontractors are subject to various extensive and changing domestic and international federal, State, and local governmental laws, regulations, and ordinances related to the use, storage, discharge, and disposal of toxic, volatile, or otherwise hazardous chemicals used in the manufacturing process.

 

We monitor our manufacturing subcontractors and their compliance with applicable environmental laws and regulations.

 

We require that our suppliers certify their compliance with applicable environmental laws and regulations related to hazardous materials used in the manufacturing, assembly, and testing of our products, particularly materials retained in the final product.  In addition, we have developed specific restrictions on the content of certain hazardous materials in our products and those of our suppliers and outsourced manufacturers and subcontractors.  This practice helps ensure our products are compliant with the requirements of the markets into which we sell our products and with our customers’ needs.

 

Other Governmental Regulations

 

Government regulations are subject to change in the future.  Accordingly, we cannot assess the possible effect of compliance with future requirements or whether our compliance with such regulations will materially impact our business, results of operations, or financial condition.

 

Sales and Marketing

 

We sell our products worldwide through a network of U.S. and foreign sales representative firms and distributors, and directly to customers.  We select our domestic and foreign sales representatives based on their technical skills and sales expertise, complementary product lines, and customer bases.  In addition, we provide ongoing educational training about our products to our internal and external sales representatives and distributors.  We maintain an internal sales and marketing organization responsible for key account management, customer application engineering support, sales, and advertising literature, and technical presentations for industry conferences.  Our direct sales personnel are located throughout the world.  We handle all our technical customer support out of our headquarters in Greensboro, N.C.

 

Our website contains extensive product information and includes state-of-the-art parametric search tables that allow engineers to locate products quickly and easily.  Customers can learn about our products, and download datasheets, product catalogs, s-parameters, application notes, and many other technical documents from our website.  Our team of application engineers interacts with customers during all design and production stages, maintains regular contact with customer engineers, provides product application notes and engineering data, and assists in resolving technical problems.  We maintain close relationships with our customers and provide them with technical support to help them anticipate future product needs.  We actively seek their input to guide our product roadmaps.

 

Seasonality

 

Our sales are generated via standard purchase orders or specific agreements with customers. Historically, we have experienced seasonal fluctuations in the sale of our products driven by our customers' individual demands, oftentimes with the third and fourth quarters of our fiscal year experiencing stronger customer sales demands.

 

Competition

 

We operate in competitive environments across all of our market segments. Our end-user customers’ product life cycles can be relatively long compared to mobile phones or similar consumer products. For example, wireless infrastructure and automotive market product life cycles can be in the 5-10 year range compared to the 12-18 month range for mobile phones or similar products. Our ability to effectively compete is primarily determined by our ability to innovate with new products, improve existing products already on the market, maintain close relationships with our supply chain partners and key customers, and deliver new and improved products before our competitors. In addition, our competitiveness is affected by the quality of our customer service and technical support.

 

We compete primarily with Qorvo, Inc., NXP Semiconductors N.V., Skyworks Solutions, Inc., and MACOM Technology Solutions Inc.

 

Many of our current and potential competitors have entrenched market positions and customer relationships, established patents, and other intellectual property and substantial technological capabilities. The selection process for our products is highly competitive, and our end-user customers provide no guarantees that they will include our products in the next generation of their products. Additionally, many of our competitors may have significant financial, technical, manufacturing, and marketing resources, which may allow them to implement new technologies and develop new products more quickly.

 

 

Intellectual Property (IP)

 

Our IP, including patents, copyrights, trademarks, and trade secrets, is essential to our business, and we actively seek opportunities to leverage our IP portfolio to promote our business interests. We also actively seek to monitor and protect our global IP rights and deter unauthorized use of our IP and other assets. Such efforts can be complex because of the absence of consistent international standards and laws. Moreover, we respect the IP rights of others and strive to mitigate the risk of infringing or misappropriating third-party IP.

 

Patent applications are filed within the U.S. and may be filed in other countries where we have a market presence. On occasion, some applications do not mature into patents for various reasons, including rejections based on prior art. In addition, the laws of some foreign countries do not protect IP rights to the same extent as U.S. laws. We have two patents, each of which will expire in February 2034. Because of our rapid innovation and product development and the comparatively slow pace of patenting processes, our products could be obsolete before the related patents expire or are granted. However, we believe the duration and scope of our patents are sufficient to support our business, which as a whole is not significantly dependent on any one particular patent or IP right. As we expand our products and offerings, we also seek to expand our patent prosecution efforts to cover such products.

 

We periodically register federal trademarks, service marks, and trade names that distinguish our product brand names in the market. We also monitor these marks for their proper and intended use. Additionally, we rely on non-disclosure and confidentiality agreements to protect our interest in confidential and proprietary information that gives us a competitive advantage, including business strategies, unpatented inventions, designs, and process technology. Such information is closely monitored and made available only to those employees whose responsibilities require access to the data.

 

Rights in trademarks, service marks, and trade names do not have expiration dates. Of those rights, we have five federal registrations and three pending federal applications for registration at the United States Patent and Trademark Office (USPTO). The registrations have (and will have) technical expiration dates, but each is renewable indefinitely.

 

Human Capital

 

We believe that our employees are our greatest assets, and we must continue to attract, develop, retain, and motivate our employees to remain competitive and execute our business strategy.  We strive to meet these objectives by offering competitive pay and benefits in a diverse, inclusive, and safe workplace.  In addition, we provide opportunities for our employees to grow and develop their careers.

 

As of December 31, 2022, we had 68 employees including three international employees.  By region, approximately 96% of our total employees are located in the United States and 4% in Asia.  By primary job function, about 54% of our employees have engineering or technician roles, 6% are in operations, and 40% have sales, marketing, or other administrative roles.  None of our employees is represented by labor unions or covered by collective bargaining agreements.  We consider our relationship with our employees to be good.

 

Competitive Pay and Benefits

 

We provide compensation and benefits packages that we believe are competitive within our industry.  We use a combination of compensation and other programs (which vary by region and salary grade) to attract, motivate and retain our employees, including stock option awards, retirement programs, unlimited personal time off, and health and wellness benefits and programs. In addition, we benchmark our compensation and benefits packages annually to remain competitive with our peers and attract and retain talent throughout our organization.

 

Employee Recruitment, Retention, and Development

 

We are committed to recruiting, hiring, retaining, promoting, and engaging a diverse workforce to serve our global customers.  We have established relationships with professional associations and industry groups to attract talent proactively.  In addition, we partner with universities to recruit undergraduate and graduate students for our internship program and entry-level positions.  We also invest in employee development programs to provide employees with the training and education they need to help them achieve their career goals and build relevant skills.

 

We believe our unique corporate culture, competitive compensation and benefits programs, and career growth and development opportunities promote longer employee tenure and reduce turnover.  We monitor employee turnover rates as our success depends upon retaining and investing in our highly skilled technical staff.  As a result, our attrition rate has consistently been below the technology industry average.

 

Diversity, Equity, and Inclusion

 

We value the uniqueness that an inclusive and diverse global team brings to our company.  Therefore, we are focused on creating an environment that leverages the perspectives and contributions of each employee.

 

 

Safety, Health, and Wellness

 

In response to the COVID-19 pandemic, we reduced business travel and instituted comprehensive safety protocols for our facility.  In addition, we offered the option to our employees to work from home, though most opted to return to in-person work after lockdowns ended. 

 

We prioritize safe working conditions.  We are committed to an injury-free workplace and provide dedicated workplace training and leadership support to reduce or eliminate health and safety risks.

 

Facilities

 

Our corporate headquarters are located in Greensboro, NC, where we lease approximately 50,000 square feet of office space under a lease agreement that commenced in the first quarter of 2023 when we took possession of the building. The lease term for our headquarters is 10 years and two months. We also continue to lease our old headquarters building, consisting of approximately 10,000 square feet of office space, and this lease expires in 2024 subject to a right to early termination upon payment of an early termination fee.

 

Legal Proceedings

 

We are not a party to any material pending legal proceedings.  We may become involved in lawsuits and legal proceedings that arise in the ordinary course of business from time to time.

 

Available Information

 

Our website address is www.guerrilla-rf.com. Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any amendments to such reports, when available, are filed with the SEC. We are subject to the informational requirements of the Exchange Act and file or furnish reports, proxy statements, and other information with the SEC. Such reports and other information filed by us with the SEC will be available free of charge on our website at www.guerrilla-rf.com when such reports are available on the SEC’s website. The SEC maintains a website that contains reports, proxy and information statements, and other information that issuers file electronically with the SEC at www.sec.gov.

 

The contents of the websites referred to above are not incorporated into this filing.  Further, our references to the URLs for these websites are intended to be inactive textual references only.

 

 

MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS

 

You should read the following discussion and analysis of our financial condition and results of operations together with our consolidated financial statements and the related notes and other financial information included in this prospectus. Some of the information contained in this discussion and analysis or set forth elsewhere in this prospectus, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties as described under the heading Cautionary Note Regarding Forward-Looking Statements elsewhere in this prospectus.  You should review the disclosure under the heading Risk Factors in this prospectus for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

 

Overview

 

Guerrilla RF is a fabless semiconductor company based in Greensboro, N.C. Guerrilla RF was founded in 2013 with a mission to employ RF semiconductor technology to deliver RF solutions to customers in underserved markets.  Over the past several years, Guerrilla RF has become a leader in developing high-performance MMIC products for wireless connectivity.  It continues to target underserved markets and customers, delivering a range of high-performance MMIC products and associated technical support to a diverse set of customers that enable a more connected world.  Guerrilla RF is a wholly-owned subsidiary of the Company.  Guerrilla RF holds all material assets and conducts all business activities and operations of the Company.  Accordingly, throughout this discussion and analysis, there are frequent references to Guerrilla RF.

 

Guerrilla RF possesses in-house design, applications, sales, and customer support functions as a fabless semiconductor company.  We outsource the manufacture and production of our MMIC products to subcontractors located overseas, providing access to multiple semiconductor process technologies.  Guerrilla RF’s primary external wafer foundries are in Taiwan and Singapore, and our primary assembly and test suppliers are located in Malaysia and the Philippines.

 

FISCAL 2022 FINANCIAL HIGHLIGHTS

 

Revenue for fiscal year 2022 increased 11% as compared to fiscal year 2021, driven primarily by higher royalties for our 5G wireless infrastructure products, and higher demand for our 5G infrastructure and catalog products for a wide variety of customer applications. Partially offsetting the increase in these product categories was a decline in our automotive product revenues caused by constraints that affected the global automotive industry, caused by supply chain disruptions and the lingering effects of the COVID-19 pandemic.

 

Gross profit for fiscal year 2022 was 58.3% of revenues as compared to 58.6% for fiscal year 2021. Although the Company has continued to experience supply chain price increases, we have been able to mitigate the effect of these increases by increasing the prices we charge our customers related to the raw materials and assembly/test cost increases we experienced. Product contribution margins increased from 68.4% to 71.2%, from 2021 to 2022, mostly due to these aforementioned price increases which outpaced corresponding cost increases. The higher product contribution margins were partially offset by higher overhead costs, on a comparative period basis, which increased due to headcount additions in our Quality group, as well as increased costs of production mask amortization.

 

Operating loss was $11.1 million for 2022 as compared to $3.7 million for 2021. This operating loss increase was primarily due to higher operating expenses relative to sales (154.0% in 2022 vs. 93.6% in 2021). Increased operating expenses were primarily attributable to increased investment in research and development (which grew 77% year over year), sales and marketing headcount additions, and additional costs associated with being a public company. Selling, general, and administrative costs increased year over year by 87.0% from 2021 to 2022.

 

Net loss per share was $0.36 and $0.24 for fiscal year 2022 and 2021, respectively.

 

Purchases of property, plant and equipment were $0.4 million for fiscal year 2022 and 2021. The majority of capital expenditures for 2022 are related to capital additions for the Company's laboratory equipment and related facilities.

 

COVID-19 Pandemic and Supply Chain Update

 

The COVID-19 pandemic negatively impacted revenue for the year ended December 31, 2022, as we experienced lower revenues due to a significant number of customers experiencing supply chain challenges.  Consequently, we implemented cost-reduction actions across our functional disciplines to assist us in navigating through what continues to be an uncertain environment.  We experienced increased sales during the first half of 2022, driven by rebounding volumes in markets recovering from supply chain difficulties that impacted the timing of our customers' orders of our products; however, lingering supply chain disruptions through the end of 2022 negatively impacted customer order patterns, resulting in reduced sales growth.

 

Our management team has, and will likely continue, to spend time, attention, and resources monitoring the COVID-19 pandemic and seeking to manage its effects on the supply chain, our business, and our workforce.  The extent to which the COVID-19 pandemic and its effects on the supply chain may impact our business will depend on future developments, which remain uncertain and cannot be predicted at this time.

 

Merger Agreement and Associated Private Placement Offering (APO)

 

On October 22, 2021, the Company (formerly known as Laffin Acquisition Corp.), Guerrilla RF Acquisition Corp., and Guerrilla RF entered into a merger agreement (the “Merger Agreement”) pursuant to which Guerrilla RF Acquisition Corp. merged with and into Guerrilla RF, with Guerrilla RF continuing as the surviving corporation and a wholly-owned subsidiary of the Company.

 

As a result of the Merger, on October 22, 2021, we acquired the business of Guerrilla RF, a fabless semiconductor company based in Greensboro, N.C. See “Description of Business.”  At the effective time, October 22, 2021, each of Guerrilla RF’s shares of capital stock issued and outstanding immediately prior to the closing of the Merger was converted into the right to receive approximately 2.95 shares of our Common Stock.  Immediately prior to the effective time, an aggregate of 2,025,000 shares of Common Stock owned by the original stockholders of the Company were forfeited and canceled, leaving only 2,975,000 shares outstanding immediately prior to the Merger.

 

In addition, pursuant to the Merger Agreement, options to purchase 1,065,067 shares of Guerrilla RF’s common stock under the 2014 Plan were assumed by the Company and converted into options to purchase 3,146,366 shares of our Common Stock.

 

 

Following the Merger, we sold 5,766,550 shares of our Common Stock pursuant to a private placement offering at a price of $2.00 per share (which we refer to as the “APO”).  Also in connection with the APO, the placement agent and its affiliates received 275,000 shares of our Common Stock and warrants to purchase an aggregate of 331,580 shares at an exercise price of $2.00 per share and a term of five years.

 

Market Qualification

 

In May 2022, our Common Stock qualified to trade on the OTCQX market (OTCQX: GUER).

 

Ongoing Funding of Operations

 

As an emerging growth company in its early stages of market penetration and customer acquisition, we continue to seek funding to support our operations and our research and development efforts, which result in new product introductions, market share increases, and participation in new markets. On February 28, 2023, we completed a private placement offering, raising gross proceeds of $9.2 million, including $5.0 million in an initial closing in late December 2022 and $4.2 million in January and February 2023. We refer to this offering as the “2022/23 Offering.” We will continue to seek funding from capital and debt markets to continue as a going concern and to provide adequate capital for the continued growth of the company.

 

New Headquarters

 

In the first quarter of 2023, we moved into a new headquarters building in Greensboro, NC to support our growing employee base and research and development and customer support laboratory space requirements. The new facility incorporates over 50,000 square feet of office and clean laboratory space, and will replace our former headquarters (also in Greensboro) of approximately 10,000 square feet of space.

 

Expansion of Distributor and Sales Networks

 

We work with global distributors and sales representatives to promote and expand our sales force. Guerrilla RF leverages these ongoing business partnerships for long-term sales and market strategies. In 2022, we expanded our sales representative network in North America, Korea, Japan, and China. Currently, we work with two large electronic component distributors and over 20 sales representative organizations worldwide.

 

Key Metrics (Non-GAAP Measures)

 

These non-GAAP measures have limitations as analytical tools and should not be considered in isolation or as a substitute for analysis of Company results as reported under GAAP.  The Company compensates for such limitations by relying primarily on GAAP results and using non-GAAP measures only as supplemental data.  In addition, because these non-GAAP measures are not measures of financial performance under GAAP and are susceptible to varying calculations, these measures, as defined by us, may differ from and may not be comparable to similarly titled measures used by other companies.

 

We regularly review the following key metrics to measure our performance, identify trends affecting our business, formulate financial projections, make strategic business decisions, and assess working capital needs.

 

   

Year Ended

December 31, 2022

   

Year Ended

December 31, 2021

 

Key Metrics

               

Number of products released

   

18

     

14

 

Number of total products

   

119

     

101

 

Number of products with lifetime revenue exceeding $100 thousand

   

52

     

40

 

 

Number of products released:  The total quantity of distinct new products released into production (products that have completed design, quality, and supply chain readiness) for the period.

 

Number of total products:  The cumulative number of production-released products since Guerrilla RF's inception through the end of the period.

 

Number of products with lifetime revenue exceeding $100 thousand:  The number of products that have achieved the threshold of cumulative sales of $100,000 since our inception through the end of the period.

 

 

Components of Results of Operations

 

Revenues

 

We derive our revenue from sales of high-performance RF semiconductor products.  We design, integrate, and package differentiated, semiconductor-based products that we sell to customers through our direct sales organization, a network of independent sales representatives, and distributors.  We generate revenue from customers located within and outside the U.S. In addition to sales to customers, we generate royalty revenue under a royalty agreement with one semiconductor manufacturer.

 

Direct Product Costs and Gross Profit

 

Direct Product Costs.  Our direct product costs consist of actual direct product expenses, salaries and related expenses, overhead, third-party services vendors, and depreciation expense related to the equipment and information technology costs incurred directly in the Company’s revenue-generating activities.

 

Gross Profit.  Our gross profit is calculated by subtracting our cost of revenues from revenues.  Gross margin is expressed as a percentage of total revenues.  Our gross profit may fluctuate from period to period as revenues fluctuate due to the mix of products we sell to customers, royalty revenue volume, operational efficiencies, and changes to our technology expenses and customer support.

 

We plan to focus on and grow the sales volume of new and existing products with the highest gross margin.  We intend to continue investing additional resources in our engineering and design capabilities, which drive our research and development efforts and, in turn, drive additional revenue streams and enable us to improve our gross margin over time.  The level and timing of investment in these areas could affect our cost of revenues in the future.

 

Operating Expenses

 

Operating expenses consist primarily of research and development expenses, sales and marketing expenses, and employee compensation costs for operations management, finance, accounting, information technology, compliance, and human resources personnel.  In addition, general and administrative expenses include non-personnel costs, such as facilities, legal, accounting, and other professional fees, and other supporting corporate expenses not allocated to other departments.  We expect our general and administrative expenses will increase in absolute dollars as our business grows, but we expect general and administrative expenses to decrease as a percent of revenues in the coming years.

 

Research and development expenses consist of costs for the design, development, testing, and enhancement of our products and are generally expensed as incurred.  These costs consist primarily of personnel costs, including salaries, benefits, bonuses, and share-based compensation for our product development personnel.  Research and development expenses also include training costs, product management, third-party partner fees, and third-party consulting fees.  We expect our research and development expenses to increase in absolute dollars as our business grows, but as a percent of revenues, R&D expenses are expected to decrease.

 

Sales and marketing expenses consist primarily of employee compensation costs related to sales and marketing, including salaries, benefits, bonuses, and share-based compensation, costs of general marketing activities and promotional activities, travel-related expenses, and allocated overhead.  Sales and marketing expenses also include costs for advertising and other marketing activities.  Advertising is expensed as incurred.  As we expand our sales and marketing efforts, we expect our sales and marketing expenses will increase in absolute dollars.

 

Non-income taxes include excise taxes, sales and use taxes, capital stock and franchise taxes, and property taxes.  Capital stock and franchise taxes are taxes that States charge the Company for the privilege of incorporating or doing business in a State.

 

Interest Expense

 

Interest expense consists primarily of the interest incurred on our debt obligations, our factoring arrangement expense, the non-cash interest expense associated with the amortization of warrants issued to certain of our equityholders and debtholders that have a contingent beneficial conversion feature related to certain convertible notes payable, and lease expense related to our capital leases.

 

Other Income (Expenses)

 

On April 30, 2020, Guerrilla RF received loan proceeds of $535,800 under the Paycheck Protection Program (“PPP”) established as part of the Coronavirus Aid, Relief and Economic Security Act administered by the Small Business Administration (“SBA”) PPP loans and accrued interest are forgivable after a “covered period” (24 weeks) as long as the borrower maintained its payroll levels and used the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities.  As of December 31, 2020, Guerrilla RF had $535,800 of principal outstanding on its PPP loan together with accrued interest of $3,611, recorded as accounts payable and accrued expenses on our consolidated balance sheet.  On February 17, 2021, Guerrilla RF received notice from the SBA that the $535,800 PPP loan was forgiven, including all accrued interest.

 

On February 19, 2021, Guerrilla RF received a second PPP loan of $833,300 (the 2021 PPP Loan). Guerrilla RF used the 2021 PPP Loan to retain current employees, maintain payroll, and make lease and utility payments.  On August 18, 2021, Guerrilla RF received notice from the SBA that the 2021 PPP Loan, including accrued interest, had been forgiven.

 

 

The following table summarizes the results of our operations for the periods presented:

 

   

Year Ended December 31,

 
   

2022

   

2021

 

Revenues

 

$

11,600,904

   

$

10,479,899

 

Direct product costs

   

4,835,632

     

4,340,292

 

Gross profit

   

6,765,272

     

6,139,607

 

Operating expenses:

               

Research and development

   

8,114,377

     

4,592,879

 

Sales and marketing

   

4,634,012

     

2,752,153

 

General and administrative

   

5,138,410

     

2,464,295

 

Total operating expenses

   

17,886,799

     

9,809,327

 

Operating loss

   

(11,121,527

)

   

(3,669,720

)

Other income (expenses):

               

Interest expense

   

(874,713

)

   

(551,495

)

Other income (expenses)

   

(30,526

)

   

1,384,060

 

Total other income (expenses), net

   

(905,239

)

   

832,565

 

Net loss

 

$

(12,026,766

)

 

$

(2,837,155

)

 

Comparison for the years ended December 31, 2022 and 2021:

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

Revenues

 

$

11,600,904

   

$

10,479,899

     

1,121,005

     

11

%

 

Revenues increased $1.1 million to $11.6 million for the year ended December 31, 2022, as compared to $10.5 million for the year ended December 31, 2021. The increase in revenue was driven by the growth of product sales to our catalog customers, our repeaters and DSA customers, and our wireless infrastructure customers over a wide breadth of applications and customers. Sales to our catalog customers grew approximately 69% from the previous year. New and established repeater and DSA product revenue also expanded 34% from 2021 to 2022. Our overall number of product offerings and the number of customers we ship to in volume continue to contribute to increased sales. Our increased sales were driven by market share increases and rebounding volumes in markets recovering from supply chain difficulties, in part due to COVID pandemic-related interruptions in worldwide manufacturing. Royalty and non-recurring engineering revenue grew 60% to $0.8 million in 2022. Recent agreements for aerospace engineering consulting and development have been a key contributor to the increase in our nonproduct revenue.

 

We generate revenue from customers located within and outside the U.S.  While we have several large customers, we define major customers as those responsible for more than 10% of Guerrilla RF’s annual product shipment revenue.  Using this definition, Guerrilla RF had one major customer, Richardson RFPD, Inc. ("RFPD"), during the years ended December 31, 2022, and December 31, 2021.  RFPD, a large product distributor serving numerous end customers, generated 81% of product shipment revenue for the years ended December 31, 2022 and 2021.

 

Nonproduct (royalty and non-recurring engineering (“NRE”)) revenues increased 60% for the year ended December 31, 2022, compared to December 31, 2021, from $0.7 million to $1.1 million, as our royalty revenues flattened while NRE revenues grew. We continued to develop and sell new products into our markets, and new product sales grew from $0.7 million for the year ended December 31, 2021 to $0.9 million for the year ended December 31, 2022, or 36%. Also, our existing product sales continued to increase from $9.2 million for the year ended December 31, 2021 to $9.7 million for the year ended December 31, 2022, or 5%. 

 

International shipments amounted to $7.8 million (approximately 70% of product revenue) and $6.5 million (approximately 66% of product revenue) for the years ended December 31, 2022, and December 31, 2021, respectively.

 

Direct Product Costs and Gross Profit

 

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

Direct product costs

 

$

4,835,632

   

$

4,340,292

     

495,340

     

11

%

Gross profit

 

$

6,765,272

   

$

6,139,607

     

625,665

     

10

%

 

Direct product costs increased $0.5 million to $4.8 million for the year ended December 31, 2022, compared to $4.3 million for the year ended December 31, 2021.  The 11% increase in direct product cost was driven by a product sales volume increase of 11% (excluding royalty and NRE revenue).  This increase was partially offset by increased fixed overhead costs (Quality staffing and related costs).  Year-over-year gross profit was consistent with the percent change of direct product costs increasing 10% from 2021 to 2022.

 

Research and Development Expenses

 

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

Research and development

 

$

8,114,377

   

$

4,592,879

     

3,521,498

     

77

%

 

Research and development expenses increased $3.5 million to $8.1 million for the year ended December 31, 2022, compared to $3.6 million for the year ended December 31, 2021.  The increase was attributable to $1.4 million of employee additions in our engineering department, and $2.1 million was attributable to product development costs including prototype material and laboratory costs.

 

 

Sales and Marketing Expenses

 

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

Sales and marketing

 

$

4,634,012

   

$

2,752,153

     

1,881,859

     

68

%

 

Sales and marketing expenses increased $1.9 million to $4.6 million for the year ended December 31, 2022, compared to $2.8 million for the year ended December 31, 2021.  The 68% increase year over year was driven predominantly by employee additions at the executive level in customer support and inside sales.

 

General and Administrative Expenses

 

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

General and administrative expenses

 

$

5,138,410

   

$

2,464,295

     

2,674,115

     

109

%

 

General and administrative expenses increased $2.6 million to $5.1 million for the year ended December 31, 2022, compared to $2.5 million for the year ended December 31, 2021.  The increase was primarily related to increases in wages and benefits of $1.6 million, $0.7 million of legal and professional fees, and $0.3 million related to insurance. The increase in wages, benefits, and professional fees was driven by headcount additions within our information technology and accounting departments, and expenses required of being a public company.

 

Other Income (Expenses)

 

   

Year Ended

December 31,

                 
   

2022

   

2021

   

$ Change

   

% Change

 

Interest expense

 

$

(874,713

)

 

$

(551,495

)

 

$

(323,218

)

   

59

%

Other income (expense)

   

(30,526

)

   

1,384,060

   

$

(1,414,586

)

   

(102

)%

Total other income (expenses), net

 

$

(905,239

)

 

$

832,565

   

$

(1,737,804

)

   

(209

)%

 

Interest expense increased approximately $0.3 million to $0.9 million for the year ended December 31, 2022, compared to $0.6 million for the year ended December 31, 2021.  The increase was attributable to two debt vehicles Guerrilla RF entered into in 2022.  The first was an asset-based loan with a total available draw of up to $3 million secured by inventory and accounts receivables.  The second was a $8 million commercial line of credit of which Guerrilla RF has drawn $5 million.

 

Other income decreased $1.4 million for the year ended December 31, 2022 to $.03 million other expense for the year ended December 31, 2022.  The driver of the other income in 2021 was due to both PPP loans being forgiven in 2021.  There was no PPP loan forgiveness in 2022.

 

 

Liquidity and Capital Resources

 

Our primary source of liquidity is cash raised from private placements and debt financing. As of December 31, 2022, we had cash resources of $4.3 million. We also have two loan facilities, one of which is for up to $3.0 million with a specialty lender (referred to as the Spectrum Loan Facility, described in Note 5 to our consolidated financial statements), and the other of which is for up to $8.0 million with a different lender (referred to as the Salem Loan Facility, also described in Note 5 to our consolidated financial statements). As of December 31, 2022, we had drawn down $0.72 million under the Spectrum Loan Facility and $5.0 million under the Salem Loan Facility. The Company raised gross proceeds of approximately $9.2 million in a private placement offering with the final closing on February 28, 2023, including $4.2 million after December 31, 2022, to further support its current and future liquidity needs. The Company believes that its existing cash and cash equivalents will provide sufficient resources to support operations through the second quarter of 2023. Potentially, the Company could draw down additional funds under the Spectrum Loan Facility; however, its ability to do so is dependent upon the value of eligible accounts receivable assigned to Spectrum as security for advances under the Spectrum Loan Facility, which value fluctuates from time to time and is ultimately outside of the Company’s control. In addition, the Company anticipates seeking permission from Salem to draw down up to an additional $3.0 million of the $8.0 million Salem Loan Facility; however, Salem has the discretion to, and may, decline the Company’s request. The Company is also pursuing additional funding opportunities, including planning for a further capital raise in the second quarter of 2023 in connection with its planned uplisting to the Nasdaq Capital Market or another national securities exchange. In the event the Company is unable to secure these or other funding sources, it may be unable to fund ongoing operations and pay its obligations as they become due after the second quarter of 2023.

 

As described in Note 1 to our consolidated financial statements, we have incurred recurring losses and negative cash flows from operations since inception and have an accumulated deficit at December 31, 2022 of $27.1 million. We expect losses and negative cash flows to continue in the near term, primarily due to continued investment in research and development, sales and marketing efforts, and increased administration expenses as our Company grows. We plan to continue to invest in the implementation of our long-term strategic plan and we anticipate that we will require additional funding in fiscal 2023. We will be actively pursuing additional funding as part of our ongoing strategic planning. There is no assurance that appropriate funding will be available on terms, which are acceptable to us, or at all. This requirement for additional funding raises substantial doubt about our ability to continue as a going concern.

 

The Company moved into its new corporate headquarters, located in Greensboro, North Carolina, in the first quarter of 2023. As of December 31, 2022, the Company owed the new landlord $2.5 million related to agreed-upon excess construction costs, deferral fees, and interest for the new facilities as construction-in-progress. The Company remitted the payment to the landlord for these costs in January 2023. The Company anticipates at least another $0.7 million of excess construction costs and related interest and deferral fees for which it will be responsible, and they will become due in the first half of 2023.

 

Initial building asset addition financing related to furniture for the new headquarter facilities was completed in April 2022 and is further discussed in Note 5 to our consolidated financial statements as of December 31, 2022. The Company will not make any scheduled lease payments for the new headquarter building until the second quarter of 2023, but it will begin recognizing associated lease expense in the first quarter of 2023. The Company anticipates annual building lease payments of approximately $1.1 million, with the first annual lease payment period commencing in the second quarter of 2023.

 

The following table summarizes our sources and uses of cash for each of the periods presented.

 

Cash (used in) provided by:

 

   

Year Ended December 31,

 
   

2022

   

2021

 

Operating activities

 

$

(9,248,403

)

 

$

(4,819,376

)

Investing activities

   

(549,850

)

   

(393,359

)

Financing activities

   

8,824,675

     

10,099,451

 

Net increase (decrease) in cash

 

$

(973,578

)

 

$

4,886,716

 

 

Operating Activities

 

Cash used in operating activities was $9.2 million and $4.8 million for the years ended December 31, 2022 and 2021, respectively.  Cash used in operating activities for the year ended December 31, 2022 principally resulted from our net loss of $12.0 million, with uses offset by non-cash depreciation and amortization of $1.4 million as well as $0.6 million in share-based compensation.  There was also $0.2 million provided from the decrease of prepaid expenses of $0.9 million, a decrease of accounts receivable of $0.5 million, and a decrease in operating lease expense of $1.2 million.   In addition, there was a $0.8 million increase in accounts payable and accrued expenses and a $0.2 million increase in inventory. 

 

Cash used in operating activities for the year ended December 31, 2021, principally resulted from our net loss of $2.8 million.  Moderate increases in our accounts receivable and inventories were partially offset by moderate increases in accounts payable and a small decrease in our prepaid expenses.

 

Investing Activities

 

Cash used in investing activities was $0.5 million and $0.4 million for the years ended December 31, 2022 and 2021, respectively.   Cash used in investing activities resulted from capital expenditures on property and equipment for all periods presented.  

 

 

Financing Activities

 

Cash provided by financing activities during the year ended December 31, 2022, of $8.8 million was principally attributable to $5.1 million in net proceeds from two debt transactions noted above as well as total net proceeds from the first close of the private placement of Common Stock of $4.8 million.  Principal payments on capital leases reduced total cash provided by financing by $1.0 million.

 

Contractual Obligations and Commitments

 

The following summarizes our significant contractual obligations as of December 31, 2022.  As mentioned above associated with the move of our business headquarters in the first quarter of 2023, the Company anticipates at least another $0.7 million of excess construction costs and related interest and deferral fees for which it will be responsible and they will become due in the first half of 2023.  We anticipate an annual lease expense of approximately $1.1 million over the 10-year and two-month term of the building lease.

 

   

Payments due by period

 
   

Total

   

Less than

1 year

   

1 – 3 years

   

4 – 5 years

   

More than 5 years

 

Purchase order obligations

 

$

313,322

   

$

313,322

   

$

   

$

   

$

 

Long-term notes (excluding interest)

   

4,564,564

     

     

     

4,564,564

     

 

Short-term debt

   

959,803

     

959,803

     

     

     

 

Operating lease obligations

   

10,577,574

     

838,419

     

2,223,852

     

2,163,201

     

5,352,102

 

Finance lease obligations

   

4,063,124

     

1,078,506

     

2,010,168

     

974,450

     

 

Total

 

$

20,478,387

   

$

3,190,050

   

$

4,234,020

   

$

7,702,215

   

$

5,352,102

 

 

Off-Balance Sheet Arrangements

 

As of December 31, 2022 and 2021, we do not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or variable interest entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.

 

Critical Accounting Policies and Estimates

 

The preparation of consolidated financial statements in conformity with U.S. GAAP requires us to make certain estimates and assumptions.  These estimates and assumptions affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities as of the balance sheet date and reported amounts of revenue and expenses during the reporting period.  Our most significant estimates and judgments involve the valuation of our share-based compensation, including the underlying estimated fair value of our Common Stock.  Accordingly, actual results may differ from these estimates.  To the extent that there are differences between our estimates and actual results, our future consolidated financial statement presentation, financial condition, results of operations, and cash flows will be affected.

 

Other than as described under Note 2 to our audited consolidated financial statements, the Critical Accounting Policies and Significant Judgments and Estimates included in our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the U.S. Securities and Exchange Commission on April 1, 2022, have not materially changed.

 

We believe that the accounting policies described below involve a greater degree of judgment and complexity.  Accordingly, these are the policies we think are the most critical to aid in fully understanding and evaluating our financial condition and results of operations.

 

Liquidity and Going Concern

 

Our recurring operating losses and our current operating plans raise substantial doubt about our ability to continue as a going concern for the next twelve months. Our independent registered public accounting firm issued their audit report on our consolidated financial statements for the years ended December 31, 2022 and 2021, which included an explanatory paragraph as to our ability to continue as a going concern. While we believe that our existing cash and cash equivalents will be sufficient to fund our current operating plans through the second quarter of 2023, we have based these estimates on assumptions that may prove to be wrong, and we could spend our available financial resources much faster than we currently expect and need to raise additional funds sooner than we anticipate.

 

Our ability to continue as a going concern will depend on us being able to raise additional capital and/or secure additional loans to fund our operations and achieve our business objectives. Our cash balance stood at $4.3 million on December 31, 2022; however, we have recorded a net loss of $12.0 million for the year ended December 31, 2022, or approximately $1.0 million per month. On February 28, 2023, we completed a private placement offering, raising gross proceeds of $9.2 million, including $5.0 million in an initial closing in late December 2022 and $4.2 million in January and February 2023.

 

Potentially, we could draw down additional funds under our existing Spectrum Loan Facility; however, our ability to do so is dependent upon the value of eligible accounts receivable assigned to Spectrum as security for advances under the Spectrum Loan Facility, which value fluctuates from time to time and is ultimately outside of our control. We anticipate seeking permission from Salem to draw down up to an additional $3.0 million of our $8.0 million Salem Loan Facility; however, Salem has the discretion to, and may, decline our request. We are also pursuing additional funding opportunities, including planning for a further capital raise in the second quarter of 2023 in connection with our planned uplisting to the Nasdaq Capital Market or another national securities exchange. The ongoing inflationary economic environment and related capital market effects caused by the lingering effects of the COVID-19 pandemic, including its impact on the supply chain, cannot be predicted with certainty and may make it more difficult or preclude us from raising additional capital, increase our costs of capital and otherwise adversely affect our business, results of operations, financial condition, and liquidity. Our failure to do any of the aforementioned things could harm our business, financial condition and results of operations. Ultimately, if we do not secure additional financing in a timely manner, we will be unable to fund ongoing operations and pay our obligations as they become due, affecting our ability to continue as a going concern. 

 

 

Share-Based Compensation

 

We recognize the grant-date fair value of share-based awards issued as compensation expense on a straight-line basis over the requisite service period, which is generally the vesting period of the award.  To date, we have not issued awards where vesting is subject to performance or market conditions.  The fair value of stock options is estimated at the time of grant using the Black-Scholes option pricing model, which requires the use of inputs and assumptions such as the estimated fair value of the underlying common stock, exercise price of the option, expected term, risk-free interest rate, expected volatility and dividend yield, the most critical of which is the estimated fair value of our Common Stock.

 

The estimated fair value of each grant and modification of stock options awarded during fiscal 2022 and fiscal 2021 was determined using the following methods and assumptions:

 

 

Estimated fair value of Common Stock.  As our Common Stock was not publicly traded prior to May 13, 2022, and subsequently has only experienced limited trading volumes, our board of directors periodically estimated the fair value of our Common Stock considering, among other things, contemporaneous valuations of our preferred and Common Stock prepared by an independent third-party valuation firm in accordance with the guidance provided by the American Institute of Certified Public Accountants 2013 Practice Aid, Valuation of Privately-Held-Company Equity Securities Issued as Compensation.

 

 

Expected term.  Due to the lack of a large public market for the trading of our Common Stock and the lack of sufficient company-specific historical data, the expected term of employee stock options is determined using the “simplified” method, as prescribed in SEC Staff Accounting Bulletin (“SAB”) No.107 (SAB 107), Share-Based Payment, whereby the expected life equals the arithmetic average of the vesting term and the original contractual term of the option.

 

 

Risk-free interest rate.  The risk-free interest rate is based on the interest rate payable on U.S. Treasury securities in effect at the time of grant for a period that is commensurate with the assumed expected term.

 

 

Expected volatility.  The expected volatility is based on historical volatilities of peer companies within our industry which were commensurate with the expected term assumption, as described in SAB 107.

 

 

Dividend yield.  We assume a dividend yield of 0% because we have never paid, and for the foreseeable future do not expect to pay, a dividend on our Common Stock.

 

The inputs and assumptions used to estimate the fair value of share-based payment awards represent management’s best estimates and involve inherent uncertainties and the application of management’s judgment.  As a result, if factors change and management uses different inputs and assumptions, our share-based compensation expense could be materially different for future awards.

 

In valuing our common and preferred stock, our board of directors determined the equity value of our business by taking a combination of the income and market approaches.

 

The income approach estimates the fair value of a company based on the present value of its future estimated cash flows and the residual value of the company beyond the forecast period.  These future values are discounted to their present values using a discount rate which is derived from an analysis of the cost of capital of comparable publicly-traded companies in the same industry or similar lines of business as of each valuation date and is adjusted to reflect the risks inherent in us achieving these estimated cash flows.  For the market approach, we utilized the guideline company method by analyzing a population of comparable companies and selected those semiconductor companies that we considered to be the most comparable to us in terms of product offerings, revenue, margins, and growth.  We then used these guideline companies to develop relevant market multiples and ratios, which are then applied to our corresponding financial metrics to estimate our equity value.

 

The enterprise values determined by the income and market approaches were then allocated to our Common Stock using the Option Pricing Method, or OPM.

 

The OPM treats common stock and preferred stock as call options on a company’s enterprise value, with exercise prices based on the liquidation preferences of the preferred stock.  Therefore, the common stock has value only if the funds available for distribution to the stockholders exceed the value of the liquidation preference at the time of an assumed liquidity event such as a merger, sale, or initial public offering.  The common stock is modeled as a call option with a claim on the enterprise at an exercise price equal to the remaining value immediately after the preferred stock is liquidated.  The OPM uses the Black-Scholes option-pricing model to determine the price of the call option.  The OPM is appropriate to use when the range of possible future outcomes is so difficult to predict that forecasts would be highly speculative.

 

 

Given the limited public trading market for our capital stock as of December 31, 2022, our board of directors exercised reasonable judgment and considered a number of subjective factors to determine the best estimate of the fair value of our Common Stock, including:

 

 

our business, financial condition and results of operations, including related industry trends affecting our operations;

 

 

the likelihood of achieving a liquidity event, such as an initial public offering or the sale of the Company, given prevailing market conditions;

 

 

the lack of marketability of our preferred and Common Stock;

 

 

the market performance of comparable publicly traded companies; and,

 

 

U.S. and global economic and capital market conditions and outlook.

 

Our Common Stock became quoted on the OTCQX, an OTC Markets Group trading platform, on May 13, 2022.  We began using our quoted Common Stock price as a fair value estimation factor to value our Common Stock once it achieved sufficient trading volume during the year ended December 31, 2022.  In addition, as all of Guerrilla RF’s preferred stock was converted into Common Stock in October 2021, we will no longer need to estimate the fair value of preferred stock as there was no issued or outstanding preferred stock as of December 31, 2022.

 

JOBS Act Accounting Election

 

We are an emerging growth company, as defined in the JOBS Act.  Under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards issued subsequent to the enactment of the JOBS Act until such time as those standards apply to private companies.  We have elected to use this extended transition period for complying with new or revised accounting standards that have different effective dates for public and private companies until the earlier of the date that we are no longer an emerging growth company, or affirmatively and irrevocably opt out of the extended transition period provided in the JOBS Act.  We have not elected to early adopt certain new accounting standards, as described in Note 2 of our consolidated financial statements.  As a result, our consolidated financial statements may not be comparable to companies that comply with the new or revised accounting pronouncements as of public company effective dates.

 

Recently Issued Accounting Pronouncements

 

A description of recently issued accounting pronouncements that may potentially impact our financial position and results of operations is disclosed in Note 2 to our audited consolidated financial statements appearing elsewhere in this prospectus.

 

Quantitative and Qualitative Disclosures About Market Risk

 

We are a smaller reporting company as defined by Rule 12b-2 of the Exchange Act and are not required to provide the information required under this item.

 

 

MANAGEMENT

 

Executive Officers and Directors

 

The following table provides information regarding our executive officers and directors as of March 1, 2023:

 

Name

 

Age

 

Positions

Executive Officers

       

Ryan Pratt

 

45

 

Chief Executive Officer and Director

John Berg

 

62

 

Chief Financial Officer

Mark Mason

 

49

 

Chief Operating Officer

Kellie Chong

 

59

 

Chief Business Officer

Non-Employee Directors

       

Susan Barkal

 

60

 

Director

David Bell

 

66

 

Director

James (Jed) E. Dunn

 

62

 

Director

William J. Pratt

 

80

 

Director

Gary Smith

 

64

 

Director

Virginia Summerell

 

64

 

Director

Greg Thompson

 

60

 

Director

 

Executive Officers

 

Ryan Pratt is the founder of the Company and has served as its Chief Executive Officer and a member of the board of directors since 2014. Prior to founding the Company, Mr. Pratt served as Director of Engineering at Skyworks, Greensboro Design Center from June 2008 to February 2013. Prior to that, Mr. Pratt served in various roles at RF Micro Devices, Inc. (“RFMD”), a global company providing wireless communication products, now named Qorvo, Inc., including as Senior Design Engineer from January 2004 to May 2006, and as Design Engineering Manager from May 2006 to June 2008. Mr. Pratt holds a Bachelor of Science degree in Electrical Engineering from North Carolina State University and has 11 patents. We believe that Mr. Pratt is qualified to serve on our board of directors because he is the founder and Chief Executive Officer of the Company and due to his extensive business and technical experience in the radio frequency (“RF”) semiconductor industry.

 

John Berg has served as Chief Financial Officer of the Company since 2016. From December 1999 to March 2014, Dr. Berg served as Director of Finance at RFMD. Prior to joining RFMD, Dr. Berg served as Corporate Controller for Sara Lee Branded Apparel from 1985 to 1999. Dr. Berg holds a Bachelor of Science degree in Accounting from the University of North Carolina at Greensboro, an MBA from High Point University, a Master of Science degree in Accounting from the University of Connecticut, and a DBA from Northcentral University.

 

Mark Mason has served as Chief Operating Officer of the Company since July 2019. From February 2011 until July 2019, he was Vice President of Operations at Triad Semiconductor. Prior to joining Triad Semiconductor, Mr. Mason spent 14 years at RFMD, most recently as the Manager of the Production Test Development Multi-Market Products Group. Mr. Mason holds a Bachelor of Science degree in Electrical Engineering from West Virginia University.

 

 

Kellie Chong joined the Company in January 2022 as a Chief Business Officer. She has 35 years of industry experience, including over 29 years at RFMD. Ms. Chong started as an integrated Circuit (IC) designer in 1992, served as a Director of Corporate Engineering in 1996, transitioned to oversee Global Positioning System (GPS) product line in 2003 to a Director of Filter Technology in 2006, a Director of Infrastructure and Standard Products in 2009, and lastly as the Director of the Broadband Product line in 2013 before leaving to join the Company. Earlier in her career, Ms. Chong worked as a test engineer at ASEA Brown Boveri and a design engineer for high-speed Analog to Digital Converter at Addacon (Micro Networks). Ms. Chong holds a Bachelor of Science degree in Electrical Engineering from the North Carolina State University and an Executive Management Masters certificate from the University of North Carolina at Greensboro.

 

Non-Employee Directors

 

Susan Barkal has served as a member of the board of directors since September 2022. Since 2021, she has served as the Senior Vice President of Quality, Supply Chain Executive, Chief Compliance Officer, and CFIUS Security Officer at Yageo Corporation, an electronic component manufacturing company.  From 1999 until YAGEO’s acquisition of KEMET Corporation in 2020, Ms. Barkal served in various roles at KEMET, including as Senior Vice President of Quality and Chief Compliance Officer from 2009 to 2021. Ms. Barkal served as an Inside Board Director for the KEMET / TOKIN Electronics Joint Venture from 2014 to 2017. Ms. Barkal holds a Bachelor of Science degree in Chemical Engineering from Clarkson University and a Master of Science degree in Mechanical Engineering from California Polytechnic State University. We believe that Ms. Barkal is qualified to serve on our board of directors due to her extensive experience in the technology sector, particularly in global quality and compliance, portfolio management strategies, and new product development.

 

David Bell has served as a member of the board of directors since 2020. Mr. Bell has 40 years of technology development experience. Mr. Bell co-founded Actev Motors, Inc. in December 2014, a company now focused on UVC ultraviolet light disinfection. He has served as Actev Motor’s Chief Executive Officer since its founding. Prior to co-founding Actev Motors, Mr. Bell served as President and Chief Operating Officer, then President and Chief Executive Officer at Intersil Corporation from 2007 to 2012. From 1994 to 2007, Mr. Bell served in various roles at Linear Technology Corporation, including as President from 2003 to 2007. Mr. Bell holds a degree in Electrical Engineering from the Massachusetts Institute of Technology. We believe that Mr. Bell is qualified to serve on our board of directors due to his experience as an entrepreneur and substantial operational experience, business acumen, and expertise in technology development.

 

James (Jed) E. Dunn has served as a member of the board of directors since 2016. Since 2013, Mr. Dunn has served as Managing Director at Newport LLC, a business advisory company assisting middle market companies focus on strategy and growth, where he is the co-lead of the mergers and acquisition practice at the firm. Prior to Newport, Mr. Dunn served as the Chief Executive Officer at Piedmont Hematology-Oncology Associates, PLLC, from 2008 to 2012. From 1988 to 2007, Mr. Dunn was the Owner and Chief Executive Officer at Coleman Resources, a contract supplier of design, printing, fulfillment, and logistics services. Earlier in his career, Mr. Dunn served as a corporate lender at First Union Bank. Mr. Dunn currently serves as a director of Triad Growth Partners, Inc., a provider of technology commercialization services. He previously served on a number of boards, including the Board of Trustees for Washington and Lee University. Mr. Dunn holds a Bachelor of Arts degree in Economics from Washington and Lee University. We believe that Mr. Dunn is qualified to serve on our board of directors due to his experience as an entrepreneur and business advisor to middle market and start-up companies.

 

William J. Pratt has served as a member of the board of directors since 2014. In 1991, Mr. Pratt co-founded RFMD. He retired in 2008 as RFMD’s Chief Technology Officer. Mr. Pratt served as chairman of the board of directors of RFMD from 1991 until 2002. Mr. Pratt earned a Bachelor of Science degree in Electrical Engineering from Villanova University and brings significant experience as a semiconductors and technology professional. We believe that Mr. Pratt is qualified to serve on our board of directors due to his more than 30 years of experience in the wireless communications industry and his deep understanding of the challenges and issues facing semiconductor companies gained from his experience as co-founder and Chief Technology Officer of RFMD.

 

Gary Smith has served as a member of the board of directors since August 2020. Since August 2018, Mr. Smith has served as President at AMB Investments, LLC. Before joining AMB Investments, Mr. Smith served as President and Chief Executive Officer of North State Aviation, LLC, an aviation MRO, from September 2016 through July 2018, and as Vice President and General Manager of the Elastomers Group at Wabtec Corporation from January 2014 to September 2016. Earlier in his career, Mr. Smith served as Executive Vice President and Chief Financial Officer at Longwood Industries from 2011 to 2013, Kinetic Systems Inc. from 2008 to 2011, International Textile Group, Inc. from 2004 to 2008, and Cone Mills Corporation from 1999 to 2004. Mr. Smith holds a Bachelor of Science degree in Accounting and Finance from the University of North Carolina at Greensboro and an MBA from the Bryan School of Business, University of North Carolina at Greensboro. We believe that Mr. Smith is qualified to serve on our board of directors due to his extensive experience in global operations and financial leadership.

 

Virginia Summerell has served as a member of the board of directors since February 2023. From 1992 until 2021, Ms. Summerell served in various finance roles at Tanger Factory Outlet Centers, Inc., including as Senior Vice President of Finance and Treasurer from 2011 to 2021, contributing to the development of finance and treasury functions. Ms. Summerell helped the company navigate from a family-owned real estate development firm to a successful publicly traded Real Estate Investment Trust. Previously, she served in various roles in corporate, commercial and real estate banking at Bank of America and its predecessors. Ms. Summerell holds a Bachelor of Arts degree in Economics from Davidson College and an MBA from the Babcock School at Wake Forest University. We believe that Ms. Summerell is qualified to serve on our board of directors because of her substantial experience in finance, treasury and capital markets, in addition to broad experience in general management.

 

Greg Thompson has served as a member of the board of directors since 2019. Since 2013, Mr. Thompson has served as Director of Regional Sales and Business Development at pSemi Corporation, a Murata company, a manufacturer of high-performance RF CMOS integrated circuits. Prior to joining pSemi Corporation, Mr. Thompson was Vice President of Sales at RFMD from 1993 to 2011. Mr. Thompson holds a Bachelor of Science degree in Engineering and Management from Clarkson University and an MBA from Pepperdine University. We believe that Mr. Thompson is qualified to serve on our board of directors due to his substantial experience in the semiconductor and wireless communications industry, including broad operating experience in sales.

 

 

Corporate Governance

 

Board Composition

 

Our board of directors currently consists of eight members:  Ryan Pratt, Susan Barkal, David Bell, James (Jed) E. Dunn, William J. Pratt, Gary Smith, Virginia Summerell, and Greg Thompson.

 

Classified Board of Directors

 

Our board of directors is divided into three classes of directors, designated Class I, Class II, and Class III, with staggered three-year terms. Ordinarily, one class of directors is elected at each annual meeting of stockholders, with the other classes continuing for the remainder of their respective terms. Each director’s term will continue until the end of such director’s term and the election and qualification of his or her successor, or his or her earlier death, resignation, disqualification, or removal. Our current directors are divided among the three classes as follows:

 

 

Ryan Pratt, Gary Smith and Greg Thompson are the Class I directors.  Their terms will expire at the 2025 annual meeting of stockholders;

 

 

David Bell and Susan Barkal are the Class II directors.  Their terms will expire at the 2026 annual meeting of stockholders; and

 

 

James (Jed) E. Dunn, William J. Pratt and Virginia Summerell are the Class III directors.  Their terms will expire at the 2024 annual meeting of stockholders.

 

Each director’s term continues until the election and qualification of his or her successor, or his or her earlier death, resignation or removal. Our amended and restated certificate of incorporation and amended and restated bylaws authorize only our board of directors to fill vacancies on the board of directors. Any increase or decrease in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. This classification of our board of directors may have the effect of delaying or preventing changes in control of our company.

 

Director Independence

 

For independence purposes, we use the definition of independence applied by Nasdaq, given the possibility of our potential uplisting to the Nasdaq Capital Market. Under the rules of Nasdaq, a listed company’s board of directors must be comprised of a majority of independent directors. A director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.

 

The board of directors has determined that all members of the board of directors other than Ryan Pratt and William J. Pratt are independent directors, as defined under applicable Nasdaq rules. In making such independence determination, the board of directors reviewed and discussed information provided by the directors and us with regard to each director’s business and personal activities and current and prior relationships as they may relate to us and our management, including the association of any of our non-employee directors with the holders of more than 5% of our Common Stock.

 

Family Relationships

 

There is one family relationship to note among the directors and executive officers.  Ryan Pratt, our Chief Executive Officer, is the son of William J. Pratt, a director.

 

Code of Business Conduct and Ethics

 

The board of directors has adopted a Code of Business Conduct and Ethics (the “General Code”) which applies to all of our employees, officers, and directors, and the Executive Officer Code of Business Conduct and Ethics (the “Officer Code”), which applies to our Chief Executive Officer, Chief Financial Officer and our senior financial and accounting officers. The General Code outlines many standards, including those related to addressing compliance with laws, regulations, policies, and procedures; conflicts of interest; confidentiality; accuracy of financial statements and other records; and procedures for reporting violations of the General Code or any illegal or unethical business or workplace conduct. The Officer Code imposes additional standards on our Chief Executive Officer, Chief Financial Officer, and senior financial and accounting officers concerning our accounting and financial reporting. Generally, the Officer Code requires those individuals to bring to the attention of the Chief Executive Officer and, in certain circumstances, the Audit Committee, any material information which comes to their attention that (i) affects disclosures made by the Company in our public filings; (ii) demonstrates significant deficiencies in our internal controls; (iii) concerns fraud or a violation of the Officer Code or General Code by management or employees who have a significant role in financial reporting, disclosure, and internal controls; or (iv) involves a material violation of law, including securities laws. Under the Officer Code, the board of directors or its designee, determines the appropriate actions to be taken in the event the Officer Code or General Code is violated by our Chief Executive Officer, Chief Financial Officer, or our senior financial and accounting officers, which actions may include termination of employment. The General Code and the Officer Code outline appropriate behavior for all employees. The full text of the General Code and the Officer Code are available on our website by going to www.guerrilla-rf.com, under the heading Investor Relations. We intend to disclose any amendments to our General Code and the Officer Code, or waivers of their requirements, on our website.

 

 

Board Leadership Structure and Role in Risk Oversight

 

The ultimate authority to oversee the business of the Company rests with the board of directors. Our executive officers are appointed by, and serve at the discretion of, our board of directors. The Company’s officers have responsibility for the management of the Company’s operations.

 

Our founder, Ryan Pratt, serves as Chief Executive Officer and as Chairman of the board of directors. The board of directors believes that it is in the best interest of the Company for Mr. Pratt to hold both positions at the present time due to our early stage of development and his unique knowledge of our history and goals, which we believe complement both the officer and chairman positions.

 

One of the key functions of the board of directors is informed oversight of our risk management process. The board of directors administers its risk oversight function directly through the board of directors as a whole and through various standing committees of the board that address risks inherent in their respective areas of oversight. Significant risk oversight matters considered by the committees are reported to and considered by the board of directors. Some significant risk oversight matters are reported directly to the board of directors, including matters not falling within the area of responsibility of any committee.

 

Directors keep themselves informed of the activities and condition of the Company and of the risk environment in which it operates by regularly attending board and assigned board committee meetings, and by review of meeting materials, and auditors’ findings and recommendations. Directors stay current on general industry trends and any statutory and regulatory developments pertinent to us by periodic briefings by executive management, counsel, auditors, or other consultants.

 

The board of directors oversees the conduct of our business and administers the risk management function by: 

 

 

selecting, evaluating, and retaining competent executive management;

 

 

establishing, with executive management, our long- and short-term business objectives;

 

 

monitoring operations to ensure that they are controlled adequately and are in compliance with laws and policies; and

 

 

overseeing our business performance.

 

The board of directors has established committees to effectively divide risk monitoring responsibilities and capabilities. The Committees include Audit, Compensation, and Corporate Governance and Nominating Committees. The Audit Committee, charged by the board of directors with the primary oversight responsibility for risk management, also oversees the integrity of financial reporting, compliance with laws and regulations, and the structure of internal control. The Compensation Committee provides oversight of executive compensation, administers and implements the Company’s incentive compensation and equity-based plans, and establishes our overall compensation philosophy. The Corporate Governance and Nominating Committee recommends persons to serve as members of our board of directors, establishes principles for the Company, and provides leadership on corporate governance matters.

 

In the day-to-day management of risk, management has established and implemented appropriate policies, procedures, risk assessment tools, and a defined organization and reporting structure. With respect to the organization and reporting structure, a hierarchy has been created which divides responsibility along functional lines of authority and further divides responsibilities efficiently and effectively into specific processes.

 

The board of directors believes that the foundation for risk management is well-established and understood throughout the Company at the board level and throughout the organization.

 

 

Diversity of the Board

 

Although the Governance and Nominating Committee does not maintain a specific policy with respect to board diversity, the board of directors believes that the board of directors should be a diverse body. Diversity in experiences, perspectives, and backgrounds is just one of many factors considered by the Governance and Nominating Committee in considering director nominees. In August 2021, the SEC adopted Nasdaq’s proposal that requires listed companies to provide statistical information about their boards of directors, in the form of a matrix chart. The below Diversity Matrix reports self-identified diversity statistics for the board of directors in the format required by Nasdaq’s rules.

 

Board Diversity Matrix (as of March 1, 2023)  

 

Total Number of Directors         

8

 

Female

Male

Non-Binary

Did Not Disclose

Gender

Gender Identity

       

Directors

2

5

1

Demographic Background

       

African American or Black

Alaskan Native or Native American

Asian

Hispanic or Latinx

Native Hawaiian or Pacific Islander

White

2

5

Two or More Races or Ethnicities

LGBTQ+

Did Not Disclose Demographic Background

1

 

Related Party Matters

 

The Audit Committee is charged with reviewing and approving all related party transactions of the Company and our directors, executive officers, and employees. All material facts of such transactions and the employee’s or the director’s interest are discussed by all disinterested directors, and a decision is made as to whether the transaction is fair to the Company. A majority vote of all disinterested directors is required to approve a related party transaction. The board of directors believes that all related party transactions with officers and directors are on terms comparable to those which would have been reached with unaffiliated parties at the time such transactions were made.

 

 

Board Committees 

 

The board of directors has three standing committees: the Audit Committee, Compensation Committee, and Corporate Governance and Nominating Committee, each of which, pursuant to its respective charter, has the composition and responsibilities described below. Members serve on these committees until their resignation or until otherwise determined by the board of directors. The following table provides the current committee membership for each of the board committees.

 

Name

 

Audit

 

Compensation

 

Corporate Governance and Nominating

Susan Barkal

         

X

David Bell

 

 

 

X

   

James (Jed) E. Dunn

 

X

     

X (Chair)

William J. Pratt

           

Ryan Pratt

           

Gary Smith

 

X (Chair)

       

Virginia Summerell

  X        

Greg Thompson

     

X (Chair)

   

 

Audit Committee. Each member of the Audit Committee is financially literate. The board of directors has determined that each member of the Audit Committee is independent within the meaning of the Nasdaq director independence standards and applicable rules of the SEC for audit committee members. The board of directors has also determined that Mr. Smith qualifies as an “audit committee financial expert” under the rules of the SEC. The Audit Committee’s principal functions are to assist our board of directors in its oversight of:

 

 

overseeing the process by which the board of directors is informed regarding any significant legal and regulatory compliance risks facing the Company and coordinating with the Company’s legal counsel to ensure the board of directors receives regular legal and regulatory compliance updates from management;

 

 

selecting a firm to serve as our independent registered public accounting firm to audit the Company’s financial statements;

 

 

ensuring the independence of the independent registered public accounting firm;

 

 

discussing the scope, timing, and results of the audit with the independent registered public accounting firm, and reviewing, with management and that firm, our interim and year-end operating results;

 

 

reviewing the adequacy of the Company’s system of internal controls;

 

 

in consultation with management, periodically reviewing the adequacy of the Company’s disclosure controls and procedures;

 

 

reviewing related-party transactions that are material or otherwise implicate disclosure requirements;

 

 

providing the audit committee report for inclusion in our proxy statement for our annual meeting for stockholders; and

 

 

approving or pre-approving all audit and non-audit services to be performed by the independent registered public accounting firm.

 

A current copy of the Audit Committee charter is available on our website, www.guerrilla-rf.com, under the heading Investor Relations.

 

 

Corporate Governance and Nominating Committee. Our Corporate Governance and Nominating Committee’s principal functions include, among other things:

 

 

recommending to our board of directors persons to serve as members of the board of directors and as members and chairpersons of the committees of our board of directors;

 

 

reviewing the size and composition of our board of directors and recommending to our board of directors any changes it deems advisable;

 

 

reviewing and recommending to our board of directors any changes to our corporate governance principles;

 

 

overseeing the process of evaluating the performance of our board of directors; and

 

 

advising our board of directors on corporate governance matters.

 

Our Corporate Governance and Nominating Committee has a written charter and Corporate Governance Guidelines. The Governance Guidelines contain various provisions related to the functions of the board of directors, including: (i) the composition and size of the board of directors; (ii) meeting attendance, meeting preparation requirements, and other responsibilities of directors; (iii) the composition of board committees; (iv) the role of the board of directors with respect to management; (v) director orientation and continuing professional development; (vi) periodic evaluations of corporate guidelines; and (vii) annual self-evaluations with the Governance Committee to determine whether the board of directors and its committees are functioning effectively and in compliance with the Governance Guidelines.

 

The board of directors has determined that each member of our Corporate Governance and Nominating Committee is an independent director as determined in accordance with Nasdaq’s director independence guidelines.

 

A current copy of the Corporate Governance Guidelines and Corporate Governance and Nominating Committee charter is available on our website, www.guerrilla-rf.com, under the heading Investor Relations.

 

Compensation Committee. The Compensation Committee is responsible for, among other things:

 

 

reviewing and approving the compensation of our chief executive officer;

 

 

reviewing and recommending to our board of directors, the compensation of our directors;

 

 

reviewing our executive compensation programs;

 

 

administering and implementing the Company’s incentive compensation plans and equity-based plans; and

 

 

establishing our overall compensation philosophy.

 

Each member of the Compensation Committee is a non-employee director as defined in Rule 16b-3 of the Exchange Act.  The board of directors has also determined that each member of the Compensation Committee is also an independent director within the meanings of Nasdaq’s director independence standards and applicable SEC rules.

 

A current copy of the Compensation Committee charter is available on our website, www.guerrilla-rf.com, under the heading Investor Relations.

 

The Compensation Committee administers the Company’s 2014 Long Term Stock Incentive Plan (the “2014 Plan”), which was adopted in 2014 and most recently amended in 2021. No additional awards may be made under the 2014 Plan. The Compensation Committee also administers the Company’s 2021 Equity Incentive Plan (the “2021 Plan,” and together with the 2014 Plan, the “Stock Incentive Plans”), which was adopted in 2021 to replace the 2014 Plan. Subject to the terms and conditions of the Stock Incentive Plans, the Compensation Committee has the authority, among other things, to select the persons to whom awards may be granted, construe and interpret the Stock Incentive Plans as well as determine the terms of such awards and prescribe, amend, and rescind the rules and regulations relating to the Stock Incentive Plans or any award granted thereunder. The Stock Incentive Plans provide that the Compensation Committee may delegate its authority, including the authority to grant awards, to one or more officers to the extent permitted by applicable law, provided that awards granted to non-employee directors may only be determined by our board of directors.

 

 

Compensation Committee Interlocks and Insider Participation

 

None of the members of the Compensation Committee is currently, or has been at any time, one of our officers or employees. In addition, none of our executive officers has served as a member of the board of directors, or as a member of the compensation or similar committee, of any entity that has one or more executive officers who served on our board of directors or Compensation Committee during fiscal 2022.

 

Non-Employee Director Compensation

 

We have not established a formal policy to provide cash or equity compensation to our non-employee directors for their service on our board of directors or committees of our board of directors. The following table shows, for the year ended December 31, 2022, the compensation earned by or awarded to the Company’s non-employee directors.

 

Name

 

Year

 

Fees Earned
or Paid
in Cash
($)

 

Option
Awards
($)

 

Equity
Awards
($)(1)

 

Total
($)

Susan Barkal

 

2022

 

 

 

37,250

 

37,250

David Bell

 

2022

 

20,000

 

 

37,250

 

57,250

James (Jed) E. Dunn

 

2022

 

32,500

 

 

37,250

 

69,750

Sam Funchess(2)

 

2022

 

 

 

 

William J. Pratt

 

2022

 

20,000

 

 

37,250

 

57,250

Gary Smith

 

2022

 

32,500

 

 

37,250

 

69,750

Virginia Summerell

 

2022

 

 

 

 

Greg Thompson

 

2022

 

32,500

 

 

37,250

 

69,750

___________________

(1)

Amounts represent the grant date fair value of the RSU awards granted to the non-employee directors for services provided in 2022, disregarding estimates of forfeitures related to service-based vesting conditions. The grant date fair value is calculated using the price of $1.49 per share. Note that the amounts reported in this column reflect the accounting cost for these equity awards and do not correspond to the actual economic value that our non-employee directors may receive from any future disposition of the Common Stock.

 

(2)

Mr. Funchess resigned as a director effective January 1, 2022.

 

 

EXECUTIVE COMPENSATION

 

The following tables and accompanying narrative set forth information about the compensation provided to our principal executive officer and the three most highly compensated executive officers (other than our principal executive officer) who were serving as executive officers as of December 31, 2022. These executive officers were Ryan Pratt, our Chief Executive Officer, Kellie Chong, our Chief Business Officer, Mark Mason, our Chief Operating Officer, and John Berg, our Chief Financial Officer, whom we refer to in this section as our “named executive officers.”

 

Summary Compensation Table. The following table shows, for the fiscal years indicated, the cash compensation we paid, as well as certain other compensation paid or accrued for those years, to our named executive officers for services in all capacities.

 

Name and Principal Position

 

Year

   

Salary

   

Bonus

 

Option
Awards(1)

 

Equity
Awards(2)

   

All Other
Compensation(3)

 

Total

Ryan Pratt,

 

2022

 

$

299,077

 

$

115,040

 

 

$

300,000

 

$

58,819

 

$

772,936

Chief Executive Officer

 

2021

 

$

251,815

 

$

250,000

 

 

$

50,000

 

$

52,577

 

$

604,392

                                       

Mark Mason,

 

2022

 

$

306,404

   

 

 

$

24,660

 

$

48,478

 

$

379,542

Chief Operating Officer

 

2021

 

$

223,431

 

$

7,500

 

 

$

26,000

 

$

43,284

 

$

274,215

                                       

John Berg,

 

2022

 

$

300,000

   

 

 

$

23,497

 

$

32,512

 

$

356,009

Chief Financial Officer

 

2021

 

$

215,192

 

$

7,500

 

 

$

26,000

 

$

41,876

 

$

264,568

                                       

Kellie Chong,

 

2022

 

$

306,923

   

$

164,190

   

 

$

30,461

 

$

501,574

Chief Business Officer

 

2021

   

   

 

   

   

   

___________________

(1)

Amounts represent the aggregate grant date fair value of the stock options awarded to the named executive officer during 2022 in accordance with FASB Accounting Standards Codification Topic 718. Such grant-date fair market value does not take into account any forfeitures related to service-based vesting conditions that may occur. Note that the amounts reported in this column reflect the accounting cost for these stock options and do not correspond to the actual economic value that may be received by our named executive officers from the stock options.

(2)

Amount represents the aggregate grant date fair value of RSUs awarded to the named executive officer in 2022 for services rendered in 2021 as a named executive officer and chair of the board of directors. Such grant-date fair market value does not take into account any forfeitures related to service-based vesting conditions as the amount reported has a three-year service-based vesting condition. Note that the amounts reported in this column reflect the accounting cost for these RSUs and does not correspond to the actual economic value that may be received by our named executive officers from the RSUs.

(3)

The amounts reported in “All Other Compensation” are comprised of the items listed in the following table:

 

Name and Principal Position

 

Year

 

Employer
401(k) Match

 

Premiums Paid
on Short and
Long Term
Disability
Insurance

 

Premiums Paid
on Group Life
Insurance

 

Premiums
Paid on
Group Health
Insurance

Ryan Pratt,

 

2022

 

$

16,963

 

$

854

 

$

2,254

 

$

38,748

Chief Executive Officer

 

2021

 

$

15,570

 

$

828

 

$

2,071

 

$

34,108

                             

Mark Mason,

 

2022

 

$

11,771

 

$

827

 

$

1,908

 

$

33,972

Chief Operating Officer

 

2021

 

$

9,609

 

$

785

 

$

1,657

 

$

31,233

                             

John Berg,

 

2022

 

$

11,654

 

$

816

 

$

5,722

 

$

14,320

Chief Financial Officer

 

2021

 

$

9,252

 

$

767

 

$

4,843

 

$

27,014

                             

Kellie Chong,

 

2022

 

10,615

 

$

784

 

5,043

 

14,019

Chief Business Officer

 

2021

   

-

   

-

   

-

   

-

 

 

Equity Compensation

 

From time to time, we grant equity awards to our named executive officers, which are generally subject to vesting based on each named executive officer’s continued service with us. As of December 31, 2022, all of our named executive officers held equity awards that were granted under the Stock Incentive Plans, as set forth in the table below titled “Outstanding Equity Awards at 2022 Fiscal Year-End.”

 

Outstanding Equity Awards at 2022 Fiscal Year-End. The following table presents information regarding outstanding equity awards for each of our named executive officers as of December 31, 2022.

 

Equity Awards

   

Option Awards

Stock Awards

   

Number of Securities Underlying Unexercised Options(1)

   

Name

 

Grant
Date

 

Exercisable
(#)

 

Unexercisable
(#)

 

Option Exercise Price
($)

 

Option Expiration
Date

Number of RSUs that have not vested (#)

Market value of RSUs that have not vested ($)

Ryan Pratt

 

 

 

   

 

175,000

260,750

Mark Mason

 

9/11/2019

 

110,781

 

36,926

 

$

0.37

 

9/11/2029

   

10/30/2020

 

7,090

 

3,545

 

$

0.53

 

10/30/2030

29,550

44,030

John Berg

 

12/5/2016

 

36,926

 

 

$

0.24

 

12/5/2026

   

9/25/2018

 

25,604

 

 

$

0.32

 

9/25/2028

28,770

42,867

   

9/11/2019

 

12,407

 

 

$

0.37

 

9/11/2029

   

10/30/2020

 

5,908

 

2,954

 

$

0.53

 

10/30/2030

Kellie Chong

 

2/21/2022

 

 

130,000

 

$

2.00

 

2/21/2032

___________________

(1)  Adjusted to reflect the number and the exercise price following the closing of the Merger.

 

Employment Agreement

 

In 2020, we entered into an employment agreement with Ryan Pratt, our Chief Executive Officer and a member of our board of directors. The employment agreement supersedes an earlier agreement and provides for an initial annual base salary of $240,000. The employment agreement does not have a fixed employment term and provides that Mr. Pratt is an at-will employee, meaning that either he or we may terminate the employment relationship at any time, with or without cause, and with or without notice. Under the terms of the employment agreement, Mr. Pratt is entitled to participate in all employee benefits to the extent generally available to our other similarly situated employees, including, without limitation, benefits such as medical, life insurance, 401(k) plan, and paid time off. The employment agreement also restricts him from competing against us, soliciting our customers or employees, or interfering with our relationships with our vendors, consultants, and independent contractors, in each case for a period of one year following a termination of employment. The employment agreement also includes invention assignment and confidentiality provisions.

 

Offer Letters

 

We have entered into offer letters with Messrs. Mason and Berg, and Ms. Chong. In addition, each of our named executive officers has executed our form of standard employee invention assignment and confidentiality agreement.

 

Mark Mason

 

In 2019, we entered into an offer letter with Mr. Mason, our Chief Operating Officer. This offer letter provided for an initial annual base salary of $201,600 and an award of 50,000 stock options. Mr. Mason is an at-will employee and does not have a fixed employment term. He is eligible to participate in our employee benefit plans, including medical, dental, vision, disability, and life insurance benefits.

 

John Berg

 

In 2016, we entered into an offer letter with Mr. Berg, our Chief Financial Officer. This offer letter provided for an initial annual base salary of $36,000 and an award of 50,000 stock options. Mr. Berg is an at-will employee and does not have a fixed employment term. He is eligible to participate in our employee benefit plans, including medical, dental, vision, disability, and life insurance benefits.

 

Kellie Chong

 

In 2022, we entered into an offer letter with Ms. Chong, our Chief Business Officer. This offer letter provided for an initial annual base salary of $201,600 and an award of 50,000 stock options. Ms. Chong is an at-will employee and does not have a fixed employment term. She is eligible to participate in our employee benefit plans, including medical, dental, vision, disability, and life insurance benefits.

 

 

Potential Payments upon Termination or Change in Control

 

We have entered into an employment agreement with Mr. Pratt and offer letters with Messrs. Mason and Berg and Ms. Chong, which provide for the following benefits upon certain terminations as provided below:

 

Ryan Pratt

 

If Mr. Pratt is terminated by us without cause (as such term is defined in his employment agreement), he will be eligible to continue to receive his base salary for 12 months following termination, in exchange for executing a customary release of claims and his continued compliance with the restrictive covenants contained in his employment agreement.

 

Mark Mason

 

If Mr. Mason is terminated for any reason, he is not entitled to any severance.

 

John Berg

 

If Mr. Berg is terminated for any reason, he is not entitled to any severance.

 

Kellie Chong

 

If Ms. Chong is terminated for any reason, she is not entitled to any severance.

 

Stock Incentive Plans

 

The purpose of the Stock Incentive Plans is to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to employees, directors, and consultants, and to promote the success of our business.

 

2014 Plan

 

In connection with the Merger, we assumed Guerrilla RF’s 2014 Plan, and options issued and outstanding under the 2014 Plan were assumed and converted into options to purchase our Common Stock. Effective October 22, 2021, participation in the 2014 Plan was frozen, and no new awards will be made under the 2014 Plan. The 2014 Plan provides for the grant of incentive stock options and non-statutory stock options to purchase shares of our Common Stock, each at a stated exercise price. The 2014 Plan also allows for the grant of restricted stock awards, with terms as generally determined by the Compensation Committee (in accordance with the 2014 Plan) and to be set forth in an award agreement. We have not granted any shares of restricted stock under the 2014 Plan. As of March 1, 2023, options to purchase 3,017,565 shares remained outstanding under the 2014 Plan, with a weighted-average exercise price of $0.38 per share.

 

2021 Plan

 

The Company currently grants equity awards to our employees, directors, and consultants under the 2021 Plan, which was adopted in connection with the Merger. Under the 2021 Plan, the Company is permitted to award stock options and other types of equity incentive awards, such as restricted stock awards, SARs, RSUs, performance awards, cash awards, and stock bonus awards. We initially reserved 222,991 shares of our Common Stock, plus any reserved shares not issued or subject to outstanding grants under the 2014 Plan on the effective date of the 2021 Plan, for issuance pursuant to awards granted under our 2021 Plan. In addition, the number of shares reserved for issuance under our 2021 Plan increased automatically by 1,657,359 shares on January 1, 2022 and 1,863,361 shares on January 1, 2023, and will continue to automatically increase annually through January 1, 2031 by the number of shares equal to the lesser of 5% of the total number of outstanding shares of Common Stock as of the immediately preceding December 31, or such number as is determined by our board of directors. As of March 1, 2023, 2,130,338 shares were available for future awards under the 2021 Plan.

 

The maximum permitted term of options granted under both the 2014 Plan and the 2021 Plan is ten years from the date of grant, except that the maximum permitted term of incentive stock options granted to an individual who holds more than 10% of the total combined voting power of all classes of our capital stock is five years from the date of grant. All awards under the 2021 Plan will be subject to clawback or recoupment pursuant to any compensation clawback or recoupment policy adopted by the board of directors or required by law to the extent set forth in such policy or applicable agreement. Except in limited circumstances, awards granted under our Stock Incentive Plans may generally not be transferred in any manner prior to vesting other than by will or by the laws of descent and distribution.

 

401(k) Plan

 

We sponsor a retirement plan intended to qualify for favorable tax treatment under Section 401(a) of the Code, containing a cash or deferred feature that is intended to meet the requirements of Section 401(k) of the Code. All of our employees are eligible to participate in the plan on the first day of the month following their date of hire. Participants may make pre-tax contributions to the plan from their eligible earnings up to the statutorily prescribed annual limit on contributions under the Code. Participant contributions are held in trust as required by law. We contribute 3% of each employee’s eligible earnings to the plan, and also make matching contributions, equal to 1% of each employee’s pre-tax contributions up to 1% of each employee’s eligible earnings, subject to vesting conditions.

 

 

Limitations on Liability and Indemnification Matters

 

Our amended and restated certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted by the DGCL. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:

 

 

any breach of the director’s duty of loyalty to us or our stockholders;

 

 

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

 

unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or

 

 

any transaction from which the director derived an improper personal benefit.

 

Our amended and restated certificate of incorporation and our amended and restated bylaws require us to indemnify our directors and officers to the maximum extent not prohibited by the DGCL and allow us to indemnify other employees and agents as set forth in the DGCL. Subject to certain limitations, our amended and restated bylaws also require us to advance expenses incurred by our directors and officers for the defense of any action for which indemnification is required or permitted, subject to very limited exceptions.

 

We have entered, and intend to continue to enter, into separate indemnification agreements with our directors, officers, and certain of our other employees. These agreements, among other things, require us to indemnify our directors, officers, and key employees for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts actually and reasonably incurred by such director, officer, or key employee in any action or proceeding arising out of their service to us or any of our subsidiaries or any other company or enterprise to which the person provides services at our request. Subject to certain limitations, our indemnification agreements also require us to advance expenses incurred by our directors, officers, and key employees for the defense of any action for which indemnification is required or permitted.

 

We believe that these provisions in our amended and restated certificate of incorporation and indemnification agreements are necessary to attract and retain qualified persons such as directors, officers, and key employees. We also maintain directors’ and officers’ liability insurance.

 

The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors and officers for breaches of their fiduciary duties. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.

 

At present, we are not aware of any pending litigation or proceeding arising out of any indemnitee’s service to us or any of our subsidiaries or any other company or enterprise to which the person provides services at our request, involving any person who is or was one of our directors, officers, employees, or other agents or is or was serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, executive officers, or persons controlling us, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

 

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

 

Described below are all transactions occurring since January 1, 2021, in which the amounts involved exceeded or will exceed $120,000, and any of our directors, executive officers or holders of more than 5% of our Common Stock, or an affiliate or immediate family member thereof, had or will have a direct or indirect material interest. Other than as described below, there have not been transactions to which we have been a party other than compensation arrangements, which are described under “Executive Compensation.”

 

2019 Notes

 

In March 2019, Guerrilla RF sold in a private placement an aggregate of $1.75 million of term notes at an interest rate of 12% per annum (each, a “2019 Note” and collectively, the “2019 Notes”). Prior to the Merger, and in anticipation of the Merger and the associated private placement that we conducted in October and November 2021 (the “APO”), all of the 2019 Notes were amended to cause the principal amount to convert to shares of our Common Stock at $1.70 per share, and at the time of the APO, the principal amounts owed under the 2019 Notes were converted under those terms, and accrued interest owed under such 2019 Notes was paid. The following table sets forth the principal amount of the 2019 Notes, and the number of shares of our Common Stock into which they were converted upon the closing of the Merger, sold to our directors, executive officers or holders of more than 5% of our Common Stock, or an affiliate or immediate family member thereof.

 

Name of Stockholder

 

Principal
Amount

 

Number of Shares of
Common Stock Issued
Upon Mandatory
Conversion

AMB Investments, LLC

 

$

575,000

 

338,235

Jeanne Pratt

 

$

250,000

 

147,059

William H. Pratt

 

$

50,000

 

29,412

Sam Funchess

 

$

100,000

 

58,824

 

 

AMB Notes

 

Guerrilla RF previously issued several promissory notes (the “AMB Notes”) to AMB Investments LLC, which holds more than 5% of our Common Stock. Certain of the AMB Notes were originally issued to Al Bodford, and each AMB Note originally issued to Al Bodford was assigned by him to AMB Investments in September 2021. The AMB Notes and their original terms are as follows: (i) Non-Negotiable Note dated March 27, 2017 issued to Al Bodford in the principal amount of $333,333 accruing interest at the rate of 8% per annum; (ii) Non-Negotiable Note dated March 12, 2018 issued to Al Bodford in the principal amount of $1,000,000 accruing interest at the rate of 8% per annum; (iii) Term Note dated March 31, 2019 issued to Al Bodford in the principal amount of $175,000 accruing interest at the rate of 12% per annum (a 2019 Note, discussed above); (iv) Term Note dated April 15, 2020 issued to AMB Investments in the principal amount of $500,000 accruing interest at the rate of 12% per annum; and (v) Term Note dated April 2, 2019 issued to CML Microcircuits (USA) Inc. (f/k/a CML Microsystems, Inc.) in the principal amount of $400,000 and assigned to AMB Investments on October 15, 2021 (a 2019 Note, discussed above). Prior to the Merger, and in anticipation of the Merger and the APO, all of the AMB Notes were amended to cause the principal amount to convert to shares of our Common Stock at $1.70 per share, and upon the closing of the APO, the principal amount owed under the AMB Notes was converted under those terms, and accrued interest owed under such AMB Notes was paid.

 

Thompson Note

 

In July 2020, Guerrilla RF issued an unsecured Term Note (the “Thompson Note”) to Greg Thompson, a member of our board of directors, in the principal amount of $250,000 accruing interest at the rate of 12% per annum. Prior to the Merger, and in anticipation of the Merger and the APO, the Thompson Note was amended to cause the principal amount to convert to shares of our Common Stock at $1.70 per share, and upon the closing of the APO, the principal amount owed under the Thompson Note was converted under those terms, and accrued interest owed thereunder was paid.

 

2021 Convertible Debt Financing

 

Between July 15, 2021 and October 1, 2021, Guerrilla RF sold an aggregate of $1,488,600 of convertible promissory notes to ten accredited investors at an interest rate of 6% per annum (each, a “Convertible Note” and collectively, the “Convertible Notes”). The corresponding note purchase agreements provided for the mandatory conversion of the Convertible Notes into shares of our Common Stock upon the closing of the Merger and the APO at the APO price ($2.00 per share).

 

The following table sets forth the principal amount of the Convertible Notes, and the number of shares of our Common Stock into which they were converted upon the closing of the Merger, sold to our directors, executive officers or holders of more than 5% of our Common Stock, or an affiliate or immediate family member thereof.

 

Name of Stockholder

 

Principal
Amount

 

Number of Shares of
Common Stock issued
upon Mandatory
Conversion

William J. Pratt

 

$

100,000

 

50,000

Jeanne Pratt

 

$

100,000

 

50,000

William H. Pratt

 

$

100,000

 

50,000

 

2021 Promissory Notes to Warrant Holders

 

In August 2021, Guerrilla RF issued promissory notes for an aggregate principal amount of approximately $300,000 to the holders of its outstanding warrants (the “2021 Notes”). The 2021 Notes accrued interest at the rate of 6% per annum. Immediately prior to the closing of the Merger, the warrants were exercised and the warrant exercise price paid in exchange for the cancelation of the 2021 Notes. The following table sets forth the principal amount of the 2021 Notes.

 

Name of Stockholder

 

Principal
Amount

AMB Investments LLC

 

$

233,333

David Reich

 

$

50,000

Jason Bodford

 

$

16,666

 

Participation in the APO

 

Certain of Guerrilla RF’s stockholders, including investors affiliated with certain of our directors and officers, purchased an aggregate of 1,294,000 shares of our Common Stock in the APO, for an aggregate gross purchase price of $2,588,000. Such purchases were made on the same terms as the shares that were sold to other investors in the APO and not pursuant to any pre-existing contractual rights or obligations.

 

Participation in the 2022/23 Offering

 

Certain existing stockholders, including investors affiliated with certain of our directors and officers, purchased an aggregate of 80,000 Units in the 2022/23 Offering, for an aggregate gross purchase price of $104,000. Such purchases were made on the same terms as the Units that were sold to other investors in the 2022/23 Offering and not pursuant to any pre-existing contractual rights or obligations.

 

 

Other Transactions

 

We have granted stock options and RSUs to certain executive officers and directors. For a description of these equity awards, see the sections titled “Summary Compensation Table” and “Non-Employee Director Compensation.”

 

Indemnification Agreements

 

We have entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements and our bylaws will require us to indemnify our directors and officers to the fullest extent not prohibited by applicable law. Subject to very limited exceptions, our bylaws will also require us to advance expenses incurred by our directors and officers.

 

Policies and Procedures for Related Party Transactions

 

The Audit Committee adopted a charter in the fourth quarter of 2021, which requires that any transaction with a related person and any other potential conflict of interest situation must be reviewed, approved, and monitored by our Audit Committee.

 

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

The following table sets forth information as of March 1, 2023, concerning the beneficial ownership of shares of each director and each named executive officer who held office during 2022 and by all of our current directors and named executive officers as a group. According to rules promulgated by the SEC, a person is the “beneficial owner” of securities if the person has or shares the power to vote them or to direct their investment, or has the right to acquire ownership of such securities within 60 days through the exercise of an option, warrant, right of conversion of a security, or otherwise.

 

We have determined beneficial ownership in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Except as indicated by the footnotes below, we believe, based on information furnished to us, that the persons and entities named in the table below have sole voting and sole investment power with respect to all shares of Common Stock that they beneficially owned, subject to applicable community property laws.

 

The percentage of shares beneficially owned is computed on the basis of 40,550,624 shares of Common Stock outstanding as of March 1, 2023. Shares of common stock that a person has the right to acquire within 60 days of March 1, 2023 are deemed outstanding for purposes of computing the percentage ownership of the person holding such rights, but are not deemed outstanding for purposes of computing the percentage ownership of any other person, except with respect to the percentage ownership of all directors and executive officers as a group. Unless otherwise indicated, the address of each beneficial owner in the table below is c/o Guerrilla RF, Inc., 2000 Pisgah Church Road, Greensboro, North Carolina 27455.

 

 

BENEFICIAL OWNERSHIP TABLE

 

Name

 

Shares of
Common Stock
Beneficially
Owned

 

Percentage of
Common Stock
Beneficially
Owned

Directors and named executive officers

         

Susan Barkal(1)

 

40,000

 

*

 

David Bell(2)

 

34,656

 

*

 

John Berg(3)

 

248,759

 

*

 

Kellie Chong(4)

 

61,319

 

*

 

James (Jed) E. Dunn(5)

 

121,335

 

*

 

Mark Mason(6)

 

132,204

 

*

 

Ryan Pratt(7)

 

5,403,215

 

13.3

%

William J. Pratt(8)

 

654,105

 

1.6

%

Gary Smith(9)

 

34,656

 

*

 

Virginia Summerell

 

--

 

*

 

Greg Thompson(10)

 

279,446

 

*

 

Directors and named executive officers as a group (11 persons)(11)

 

7,009,695

 

17.1

%

___________________

Unless otherwise noted, all shares are owned directly of record by the named persons, their spouses and minor children, or by other entities controlled by the named persons.

 

*  Represents beneficial ownership of less than one percent.

(1)  Consists of 40,000 shares of Common Stock.

(2)  Consists of (i) 12,500 shares of Common Stock, and (ii) options to purchase 22,156 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(3)  Consists of (i) 163,581 shares of Common Stock, (ii) options to purchase 80,845 shares of Common Stock that are exercisable within 60 days of March 1, 2023, and (iii) 4,333 restricted stock units (“RSUs”) that are exercisable within 60 days of March 1, 2023.

(4)  Consists of (i) 28,819 shares of Common Stock, and (ii) options to purchase 32,500 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(5)  Consists of (i) 51,912 shares of Common Stock, and (ii) options to purchase 69,423 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(6)  Consists of (i) 10,000 shares of Common Stock, (ii) options to purchase 117,871 shares of Common Stock that are exercisable within 60 days of March 1, 2023, and (iii) 4,333 RSUs that are exercisable within 60 days of March 1, 2023.

(7)  Consists of (i) 5,317,467 shares of Common Stock, (ii) options to purchase 26,882 shares of Common Stock that are exercisable within 60 days of March 1, 2023, and (iii) 58,866 RSUs that are vested and exercisable within 60 days of March 1, 2023.

(8)  Consists of (i) 600,929 shares of Common Stock, and (ii) options to purchase 53,176 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(9)  Consists of (i) 12,500 shares of Common Stock and (ii) options to purchase 22,156 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(10)  Consists of (i) 238,088 shares of Common Stock and (ii) options to purchase 41,358 shares of Common Stock that are exercisable within 60 days of March 1, 2023.

(11)  Consists of (i) 6,475,796 shares of Common Stock, (ii) options to purchase 466,367 shares of Common Stock, and (iii) 67,532 RSUs that are vested and exercisable within 60 days of March 1, 2023.

 

Security Ownership of Certain Beneficial Owners

 

The Exchange Act requires that any person who acquires the beneficial ownership of more than 5% of our Common Stock notify the SEC and us. Set forth below is certain information, as of March 1, 2023, regarding all persons or “groups,” as defined in the Exchange Act, who held of record or who are known to us to own beneficially more than 5% of our shares.

 

Name

 

Shares of
Common Stock
Beneficially
Owned

 

Percentage of
Common Stock
Beneficially
Owned

5% stockholders

         

Al Bodford(1)

 

7,985,427

 

19.7

%

Jason Bodford(2)

 

1,941,154

 

4.8

%

Ryan Pratt

 

5,403,215

 

13.3

%

Mark Tompkins(3)

 

2,892,296

 

7.1

%

___________________

Unless otherwise noted, all shares are owned directly of record by the named persons, their spouses and minor children, or by other entities controlled by the named persons.

 

(1)  Mr.  Bodford holds these shares in the name of his company, AMB Investments, LLC. The address of Mr. Bodford and AMB Investments, LLC is 1501 Highwoods Boulevard, Suite 302, Greensboro, NC 27410.

(2)  The address of Mr. J. Bodford is 1501 Highwoods Boulevard, Suite 302, Greensboro, NC 27410.

(3)  Based on a Schedule 13 G/A filed by Mr. Tompkins on February 14, 2023. The address of Mr. Tompkins is App. 1, Via Guidino 23, 6900 Lugano-Paradiso, Switzerland.

 

 

SELLING STOCKHOLDERS

 

This prospectus covers the resale by the selling stockholders identified below of up to an aggregate of 11,930,190 shares of our Common Stock. Except as otherwise noted, the selling stockholders acquired our securities in connection with the APO and the 2022/23 Offering. The registration of the Common Stock of the selling stockholders through this prospectus constitutes a secondary offering and is not an offering by or on behalf of the Company. We will not receive any proceeds from the resale of the Common Stock by the selling stockholders.

 

Except as disclosed in the footnotes below, none of the selling stockholders has been an officer or director of ours or any of our predecessors or affiliates within the past three years. Except as disclosed in the footnotes below, no selling stockholder had a material relationship with us or any of our affiliates within the last three years.

 

The following table and the accompanying footnotes are based in part on information supplied to us by the selling stockholders. The table and footnotes assume that the selling stockholders will sell all of the shares listed. However, because the selling stockholders may sell all or some of their shares under this prospectus from time to time, or in another permitted manner, we cannot assure you as to the actual number of shares that will be sold by the selling stockholders or that will be held by the selling stockholders after completion of any sales. We do not know how long the selling stockholders will hold the shares before selling them.

 

The inclusion of any shares in this table does not constitute an admission of beneficial ownership by the persons named below. Unless otherwise indicated, based on the information supplied to us by or on behalf of the selling stockholders, no selling stockholder is a broker-dealer or an affiliate of a broker-dealer.

 

Name of Selling Stockholder

  Shares Owned Before the Offering   Shares Being Offered(1)(2)(3)   Shares Owned After the Offering(%)(1)(2)

Accent Capital GmbH

 

40,000

 

60,000

 

*

Albert Pezone

 

19,250

 

15,175(4)

 

*

Alexander Pratto

 

23,000

 

34,500

 

*

Andrew B Ciampichini

 

 --

 

260(4)

 

*

Andrew P Finn

 

19,230

 

28,845

 

*

Andrew Greg Withers

 

19,230

 

28,845

 

*

Andy Horan

 

46,153

 

69,230

 

*

Anne Stefurak & Stephan Stefurak

 

113,462

 

57,693

 

*

Antony Paul Henshaw

 

19,231

 

28,847

 

*

APPLIED FOOD SCIENCES INC

 

76,923

 

115,385

 

*

Ara Tokatlian

 

19,230

 

28,845

 

*

Bank Leumi Le-Israel business center-Afek 707, 4 Sutin st. Pethach-Tkiva, Israel, account no. 135800/92

 

25,532

 

38,298

 

*

Barry Shemaria

 

70,001

 

60,002

 

*

Barry Spencer Frank

 

15,000

 

22,500

 

*

Bart Kendzierski Living Trust DTD 12/02/2014 Bart Thomas Kendzierski TTEE

 

11,000

 

16,500

 

*

Blane A. Woodfin, Jr.

 

38,461

 

57,692

 

*

Benjamin Cone, Jr.

 

40,000

 

60,000

 

*

Brooke Ann Siegler & Nathaniel Richard Siegler JTWROS

 

40,000

 

60,000

 

*

Bruce Haverberg & Donna Haverberg

 

32,500

 

30,000

 

*

Buff Trust

 

 --

 

135,693(4)

 

*

Carl R. Ohlsson

 

40,000

 

60,000

 

*

Carol Mctee Roach & Christopher Roach JTWROS

 

19,230

 

28,845

 

*

Casimir S. Skrzypczak

 

32,000

 

18,000

 

*

Charles Gambino

 

40,000

 

60,000

 

*

Charles A & Angel L Little JTWROS

 

13,000

 

19,500

 

*

Christopher Fiore(5)

 

403,847

 

230,771

 

*

Christopher Lee Hill

 

45,000

 

30,000

 

*

Colin S Dunn

 

40,000

 

60,000

 

*

Daniel W. Hazlett

 

20,000

 

30,000

 

*

Daniel P Wikel

 

57,693

 

86,540

 

*

 

 

Name of Selling Stockholder   Shares Owned Before the Offering   Shares Being Offered(1)(2)(3)   Shares Owned After the Offering(%)(1)(2)

David Landskowsky

 

128,009

 

48,148(4)

 

*

DeLoach LS Investments LLC

 

45,000

 

30,000

 

*

Devin McCabe

 

 --

 

7,269(4)

 

*

Diana B & David J Freshwater Rev Liv Trust DTD 1/20/2004

 

38,461

 

57,692

 

*

Donald E Garlikov

 

1,000,000

 

1,500,000

 

*

Douglas E Jasek

 

19,230

 

28,845

 

*

Dr Joshua J Gooden & Janeen Gooden JTWROS

 

19,230

 

28,845

 

*

Due Mondi Investments LTD

 

31,731

 

28,847

 

*

Dwayne Rowland

 

30,000

 

45,000

 

*

Eric Rubenstein

 

115,509

 

48,148(4)

 

*

Ernest W. Moody Revocable Trust

 

100,000

 

150,000

 

*

Eugenio M. Proenza Michelle L. Proenza JTWROS

 

57,692

 

86,538

 

*

Francis R Smith

 

 --

 

50,000(4)

 

*

Frankie Derek Necaise & Marsha M Necaise JTWROS

 

9,615

 

14,423

 

*

Franklin G Hall & Phyllis G Hall JTWROS

 

10,000

 

15,000

 

*

Frederick B. Epstein

 

15,385

 

23,078

 

*

Garnet Trust

 

 --

 

135,693(4)

 

*

George Hoyle and Kathleen Kelly

 

100,000

 

150,000

 

*

George A Parmer

 

100,000

 

150,000

 

*

Gilbert S. Omenn Revocable Trust

 

50,000

 

75,000

 

*

Gregg Klingenberg & Michelle Klingenberg JTWROS

 

19,230

 

28,845

 

*

Gubbay Investments, LLC

 

46,924

 

40,386

 

*

Gunnar Stolze

 

19,230

 

28,845

 

*

H. Investment Company, LLC

 

38,000

 

19,500

 

*

Harry P Keenan

 

19,206

 

28,809

 

*

Henry Oliver McCormack

 

 --

 

4,725(4)

 

*

Howard Kalka & Susan Kalka

 

20,000

 

30,000

 

*

Hugh J Marasa Jr

 

 --

 

5,262(4)

 

*

Hugh Regan

 

 --

 

100,000(4)

 

*

IRTH Communications, LLC(11)

 

66,578

 

66,578

 

*

Jacques Vermeulen

 

19,230

 

28,845

 

*

James Ahern

 

 --

 

100,000(4)

 

*

James E Dunn Jr Restated 1985 Revocable Trust(6)

 

10,000

 

15,000

 

*

James Ott

 

40,000

 

60,000

 

*

James J Regan

 

19,230

 

28,845

 

*

James Wiesenberg

 

20,000

 

30,000

 

*

Jason Russo TOD

 

 --

 

21,644(4)

 

*

Jeff L Stevens

 

29,231

 

43,847

 

*

Jeffrey R Glazer

 

 --

 

865(4)

 

*

Jeffrey Segal

 

40,000

 

60,000

 

*

Jeremy Allan Fennema

 

60,000

 

45,000

 

*

Joan L Bonanno TTE U/A DTD 12/05/2002 By Joan L Bonanno

 

100,000

 

37,500

 

*

Joel L. Hochman Revocable Trust UAD 12/8/1994

 

20,000

 

30,000

 

*

John Berg(7)

 

163,581

 

30,000

 

*

John F Ciraulo

 

38,462

 

57,693

 

*

 

 

Name of Selling Stockholder   Shares Owned Before the Offering   Shares Being Offered(1)(2)(3)   Shares Owned After the Offering(%)(1)(2)

John Robert Hepburn

 

275,637

 

45,000

 

*

John Molter

 

19,230

 

28,845

 

*

John Staley TOD

 

7,692

 

11,538

 

*

John-Paul Eitner

 

 --

 

4,725(4)

 

*

Joseph O. Manzi

 

44,231

 

28,847

 

*

Joseph M Rice & Denise A Rice JTWROS

 

155,000

 

232,500

 

*

Karl K. Grass and Kathy L. P. Grass Revocable Trust

 

562,762

 

75,000

 

1.20%

Kendall FLP

 

30,000

 

15,000

 

*

Kevin York

 

153,847

 

230,771

 

*

Kira Young-Hee Haverkamp

 

38,400

 

57,600

 

*

Kirby Frank

 

21,000

 

15,000

 

*

Lee E Cleveland

 

40,000

 

60,000

 

*

Lexecon Pension Trust

 

76,923

 

115,385

 

*

Loretta Zapp

 

46,152

 

69,228

 

*

Luc Lissoir

 

38,461

 

57,692

 

*

Luis Marquez

 

 --

 

5,538(4)

 

*

Luke Kottke

 

 --

 

100,000(4)

 

*

Margaret St. Pierre & Michael St. Pierre

 

50,000

 

75,000

 

*

Mark Mason(8)

 

10,000

 

15,000

 

*

Mark Tompkins(9)

 

2,892,296

 

288,444

 

6.42%

Matthew D Eitner

 

 --

 

100,000(4)

 

*

Michael J Ahern

 

 --

 

289(4)

 

*

Michael B Carroll & Sheila J Carroll JTWROS

 

76,922

 

115,383

 

*

Michael Murray

 

 --

 

4,038(4)

 

*

Narendra M Patel - Individual - TOD (Fidelity Investments)

 

192,307

 

288,461

 

*

Northlea Partners LLLP

 

28,366

 

14,424

 

*

OHB Family Trust

 

32,500

 

30,000

 

*

Patricia Lynn Potter LLC

 

10,000

 

15,000

 

*

Paul J Van Der Merwe

 

19,230

 

28,845

 

*

Phillip Ainsworth

 

769,653

 

1,154,480

 

*

Philip M. Cannella

 

20,000

 

30,000

 

*

R. Timothy Rice

 

316,863

 

45,000

 

*

Randal J Dirlam

 

19,230

 

28,845

 

*

Raymond J Bonnanno TTE U/A DTD 12/05/2002 By Raymond J Bonanno

 

100,000

 

37,500

 

*

Raymond T VanHoy III and Kristi W VanHoy JTWROS

 

10,000

 

15,000

 

*

Richard Kingston & Mary Leslie Kingston

 

31,000

 

46,500

 

*

Richard G Michalski

 

 --

 

4,327(4)

 

*

Richard Stites

 

20,000

 

30,000

 

*

RIFCO HOLDINGS, LLC

 

75,000

 

112,500

 

*

Robert Caione

 

65,000

 

60,000

 

*

Robert C. Payne, Jr.

 

186,133

 

60,000

 

*

Robert M Pinato

 

40,000

 

60,000

 

*

Robert D Warnock

 

80,000

 

120,000

 

*

Rosemarie Palma

 

10,000

 

15,000

 

*

Russell R. Myers

 

200,000

 

300,000

 

*

 

 

Name of Selling Stockholder   Shares Owned Before the Offering   Shares Being Offered(1)(2)(3)   Shares Owned After the Offering(%)(1)(2)

Ryan Turcotte

 

 --

 

46,115(4)

 

*

Salem Investment Partners V, Limited Partnership (12)

 

726,925

 

1,015,388

 

*

Samuel Funchess, Sr. (10)

 

121,324

 

75,000

 

*

Sarbjit Johl

 

38,460

 

57,690

 

*

Schoenlein Trucking Salvage

 

38,461

 

57,692

 

*

Scott McCall

 

20,000

 

30,000

 

*

Sean W Meitner & Claudia Meitner JTWROS

 

11,538

 

17,307

 

*

Stephen E Klee and Leigh Ann Klee JTWROS

 

30,000

 

45,000

 

*

Stephen L. Mabe

 

20,000

 

30,000

 

*

Stephen R. Mut

 

22,116

 

14,424

 

*

Stephen T Presley & Jacqueline C Presley JTWROS

 

7,692

 

11,538

 

*

Steven A Hobbs

 

29,230

 

43,845

 

*

Strata Trust FBO Narendra Patel Roth IRA

 

192,307

 

288,461

 

*

Sungjin Cho

 

23,000

 

34,500

 

*

Susan Berish Barkal & Paul Barkal Jr. JTWROS(13)

 

40,000

 

60,000

 

*

Sydney Nelson

 

 --

 

2,015(4)

 

*

Thomas Goodwin & Mary Ellen Goodwin

 

31,731

 

28,847

 

*

Tim Herrmann

 

23,126

 

49,728(4)

 

*

Timothy Mark Harvey

 

48,000

 

45,000

 

*

Tim M Lowney

 

15,384

 

23,076

 

*

Todd Cirella TOD

 

 --

 

21,644(4)

 

*

Todd Harrigan

 

1,606

 

53,571(4)

 

*

Tyler and Nicole Davis

 

25,000

 

37,500

 

*

Viken Manoukian

 

40,000

 

60,000

 

*

Walter Wohlmuth

 

180,000

 

120,000

 

*

William J Attenborough

 

76,923

 

115,385

 

*

William S. Pearson Trustee for William S. Pearson Revocable Living Trust

 

20,000

 

30,000

 

*

William Erick Augustus Sowder

 

10,000

 

15,000

 

*

William N. Strawbridge

 

22,500

 

15,000

 

*

Wolsonovich SEF, LLC

 

40,385

 

23,078

 

*

Zamarom Limited Partnership

 

20,000

 

30,000

 

*

__________________

*

Less than 1%

(1)

Applicable percentage ownership is based on 40,550,624 shares of our common stock outstanding as of March 1, 2023.

(2)

Assumes the sale of all shares offered in this prospectus.

(3)

Includes shares of common stock issuable upon exercise of warrants held by selling stockholder issued in connection with the 2022/23 Offering.

(4)

Represents shares of common stock issuable upon exercise of warrants held by selling stockholder and issued as compensation for placement agent services rendered in connection with the 2022/23 Offering. The selling stockholder has advised us that he is an affiliate of a broker-dealer, and has also represented to us that he acquired the securities in the ordinary course of business and, at the time of purchase, had no agreements or understandings, directly or indirectly, with any other person to distribute such securities.

(5)

The selling stockholder has advised us that he is an affiliate of a broker-dealer, and has also represented to us that he acquired the securities in the ordinary course of business and, at the time of purchase, had no agreements or understandings, directly or indirectly, with any other person to distribute such securities.

(6)

James (Jed) E. Dunn is a member of our board of directors.

(7)

Dr. John Berg is our Chief Financial Officer.

(8)

Mark Mason is our Chief Operating Officer.

(9)

Mark Tompkins is a former director of Laffin Acquisition Corp., our predecessor.

(10)

Samuel Funchess, Sr. was a member of our board of directors. In January 2022, Mr. Funchess resigned from the board and became Vice President-Investor Relations for the Company.

(11)

On February 7, 2023, we issued 66,578 shares of common stock to IRTH Communications, LLC (“IRTH”) pursuant to a services agreement by and between IRTH and the Company, and in exchange for consulting services valued at $100,000.

(12)

On August 11, 2022, the Company issued 150,000 shares of common stock to Salem Investment Partners V, Limited Partnership (“Salem”) pursuant to the terms of a loan agreement by and between Salem and the Company, and in exchange for Salem’s agreement to provide a $5.0 million loan facility to the Company.

(13)

Susan Barkal is a member of our board of directors.

 

 

PLAN OF DISTRIBUTION

 

The selling stockholders and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of Common Stock covered hereby on the principal market or stock exchange on which the Common Stock is listed or quoted for trading or any other stock exchange, market or trading facility on which the Common Stock is traded or in private transactions. These sales may be at fixed or negotiated prices.

 

The selling stockholders may use any one or more of the following methods when selling the shares:

 

 

ordinary brokerage transactions and transactions in which the broker‑dealer solicits purchasers;

 

 

block trades in which the broker‑dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

 

 

purchases by a broker‑dealer as principal and resale by the broker‑dealer for its account;

 

 

an exchange distribution in accordance with the rules of the applicable exchange;

 

 

privately negotiated transactions;

 

 

settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;

 

 

in transactions through broker‑dealers that agree with the selling stockholders to sell a specified number of such shares of Common Stock at a stipulated price per security;

 

 

through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;

 

 

a combination of any such methods of sale; or

 

 

any other method permitted pursuant to applicable law.

 

The selling stockholders may also sell the shares of Common Stock under Rule 144 under the Securities Act, if available, rather than under this prospectus.

 

Broker‑dealers engaged by the selling stockholders may arrange for other brokers‑dealers to participate in sales. Broker‑dealers may receive commissions or discounts from the selling stockholders (or, if any broker‑dealer acts as agent for the purchaser of the shares or interests therein, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.

 

In connection with the sale of our Common Stock, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the Common Stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our Common Stock short and deliver these securities to close out their short positions, or loan or pledge the Common Stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into options or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of the shares of Common Stock offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

 

The selling stockholders and any broker-dealers or agents that are involved in selling the Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder in this offering has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the shares of Common Stock.

 

We are required to pay certain fees and expenses incurred by us incident to the registration of the Common Stock. We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.

 

Because selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act, they will be subject to the prospectus delivery requirements of the Securities Act including Rule 172 thereunder. In addition, any shares of Common Stock covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus. The selling stockholders have advised us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the resale shares by the Selling Stockholders.

 

 

We have agreed to keep this prospectus effective until the earliest of (i) one (1) year from the date this Registration Statement is declared effective by the SEC, (ii) the date on which the shares of Common Stock may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect, or (iii) the date on which all of the shares of Common Stock have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale shares covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.

 

Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the shares of Common Stock by the selling stockholders or any other person. We will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).

 

 

DESCRIPTION OF CAPITAL STOCK

 

The following description summarizes the most important terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description, you should refer to our amended and restated certificate of incorporation and amended and restated bylaws, and to the applicable provisions of Delaware law.

 

We have authorized capital stock consisting of 300 million shares of Common Stock and 10 million shares of preferred stock. Except as otherwise provided in the certificate of designation of any series of preferred stock we may issue, the number of authorized shares of Common Stock or preferred stock may from time to time be increased or decreased (but not below the number of shares of such class outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding shares of our capital stock.

 

As of March 1, 2023, we had 40,550,624 shares of Common Stock issued and outstanding, and no shares of preferred stock issued and outstanding. Unless stated otherwise, the following discussion summarizes the term and provisions of our amended and restated certificate of incorporation and our amended and restated bylaws.

 

Common Stock

 

Dividend Rights

 

Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our Common Stock are entitled to receive dividends out of assets or funds legally available for the payment of dividends if our board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that our board of directors may determine.

 

Voting Rights

 

Holders of our Common Stock are entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders. We have not provided for cumulative voting for the election of directors in our amended and restated certificate of incorporation. Accordingly, holders of a majority of the shares of our Common Stock will be able to elect all of our directors. Our amended and restated certificate of incorporation establishes a classified board of directors, divided into three classes with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms.

 

No Preemptive or Similar Rights

 

Our Common Stock is not entitled to preemptive rights, and is not subject to redemption or sinking fund provisions.

 

Right to Receive Liquidation Distributions

 

Upon our liquidation, dissolution, or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of our Common Stock, subject to prior satisfaction of all outstanding debt and liabilities.

 

Preferred Stock

 

Our board of directors is authorized, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series, and to fix the designation, powers, preferences, and rights of the shares of each series and any of its qualifications, limitations, or restrictions, in each case without further vote or action by our stockholders. Our board of directors can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our Common Stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, or preventing a change in our control and might adversely affect the market price of our Common Stock and the voting and other rights of the holders of our Common Stock. We have no current plan to issue any shares of preferred stock.

 

Stock Options

 

As of March 1, 2023, we had outstanding stock options to purchase an aggregate of 3,017,565 shares of our Common Stock, with a weighted-average exercise price of $0.38 per share under the 2014 Plan, and outstanding stock options to purchase an aggregate of 496,125 shares of our Common Stock, with a weighted-average exercise price of $2.10 per share under the 2021 Plan.

 

 

Stock Appreciation Rights

 

As of March 1, 2023, we had no outstanding stock appreciation rights under the 2021 Plan.

 

Restricted Stock Units (RSUs)

 

As of March 1, 2023, we had 1,237,187 RSUs outstanding under the 2021 Plan.

 

Warrants Associated with the APO

 

As of March 1, 2023, we had outstanding warrants to purchase an aggregate of 331,580 shares of our Common Stock, with an exercise price of $2.00 per share and a term of five years from the applicable grant date. All of the warrants were granted in connection with the APO, with our placement agent and its affiliates receiving warrants at each of the first three closings, i.e. 183,100 warrants on October 22, 2021, 85,480 warrants on November 5, 2021, and 63,000 warrants on November 12, 2021. The warrants have a cashless exercise feature and are subject to customary adjustments in the event of a stock split or reverse stock split, the reclassification, capital reorganization or other change in the capital stock of the Company.

 

Warrants Associated with the 2022/23 Offering

 

In connection with the 2022/23 Offering, we issued warrants to investors to purchase an aggregate of 3,549,588 shares of Common Stock. The investor warrants have an exercise price of $2.00 per share and a term of five years. Also in connection with the 2022/23 Offering, our placement agent, its selected dealer and their affiliates received warrants to purchase an aggregate of 1,064,872 shares at an exercise price of $1.30 per share and a term of five years.

 

Registration Rights Agreements

 

In connection with the Merger and the APO, we entered into a registration rights agreement (the “APO Registration Rights Agreement”), pursuant to which we agreed to file, subject to customary exceptions, a registration statement (the “APO Registration Statement”) with the SEC, together with additional filings needed to maintain the effectiveness of the APO Registration Statement, covering (i) the shares of our Common Stock issued in the APO, (ii) the shares of Common Stock issuable upon exercise of the placement agent warrants issued in the APO, (iii) the shares of our Common Stock issued as a result of the Share Conversion, (iv) 2,975,000 shares of our Common Stock held by persons who purchased or received such shares for services rendered to Laffin Acquisition Corp. prior to the Merger, and (v) 275,000 shares of our Common Stock issued to our placement agents in connection with the APO ((i)-(v) collectively referred to as the “APO Registrable Securities”). The APO Registration Statement was declared effective by the SEC on February 11, 2022, and subsequently amended by a post-effective amendment declared effective by the SEC on March 21, 2023.

 

Subject to customary exceptions, if (i) we fail to maintain the effectiveness of the APO Registration Statement, (ii) the holders of APO Registrable Securities cannot use the APO Registration Statement to resell the APO Registrable Securities for a period of more than 15 consecutive trading days (except for suspension of the use of the APO Registration Statement during certain Blackout Period (as defined below)), or (iii) following the listing or inclusion for quotation on the OTC Markets, the Nasdaq Stock Market, the New York Stock Exchange (“NYSE”) or the NYSE American, trading of our Common Stock is suspended or halted for more than three full, consecutive trading days ((i)-(iii) collectively, “APO Registration Events”), we will make payments to each holder of APO Registrable Securities as monetary penalties at a rate equal to 12% per annum of the total value of APO Registrable Securities held or purchased by such holder and affected during the period, based on the offering price of $2.00 per share; provided that the maximum amount of monetary penalties paid by us will not exceed 8% of such total value.

 

We must use commercially reasonable efforts to keep the APO Registration Statement effective for five years from the date it is declared effective by the SEC or until the date on which no APO Registrable Securities are outstanding.

 

We will pay all expenses in connection with the registration obligations provided in the APO Registration Rights Agreement, including, without limitation, all registration, filing, and stock exchange fees, printing expenses, all fees and expenses of complying with applicable securities laws, the fees and disbursements of our counsel and of our independent accountants, and the reasonable fees and disbursements of a single counsel to the holders of the APO Registrable Securities, not to exceed $35,000 in the aggregate. Each holder will be responsible for its own sales commissions, if any, transfer taxes and the expenses of any other attorney or advisor such holder decides to employ.

 

In connection with the 2022/23 Offering, we entered into a registration rights agreement (the “2022/23 Registration Rights Agreement”, and together with the APO Registration Rights Agreement, the “Registration Rights Agreements”), pursuant to which we agreed to prepare and file, subject to customary exceptions, a registration statement with the SEC (the “2022/23 Registration Statement”), covering (i) the shares of our Common Stock issued in the 2022/23 Offering, (ii) the shares of Common Stock issuable upon exercise of the warrants issued to investors in the 2022/23 Offering, and (iii) the shares of our Common Stock issuable upon exercise of the placement agent and selected dealer warrants issued in the 2022/23 Offering to our placement agent, its selected dealer and their affiliates in the 2022/23 Offering ((i)-(iii) collectively referred to as the “2022/23 Registrable Securities”). We are required to use our reasonable best efforts to cause the 2022/23 Registration Statement to be declared effective no later than June 28, 2023.

 

Subject to customary exceptions, if (i) we are late in filing the 2022/23 Registration Statement, (ii) the 2022/23 Registration Statement is not declared effective by June 28, 2023 (provided that such failure of the 2022/23 Registration Statement to be declared effective by such date is the result of any action or failure to act on our part), (iii) we fail to maintain the effectiveness of the 2022/23 Registration Statement, or (iv) the holders of 2022/23 Registrable Securities cannot use the 2022/23 Registration Statement to resell the 2022/23 Registrable Securities for a period of more than 10 consecutive calendar days or more than an aggregate of 15 calendar days during a 12-month period consecutive trading days ((i)-(iv) collectively, “2022/23 Registration Events”), we will pay to each investor in the 2022/23 Offering a cash fee equal to 1% of the aggregate purchase price paid by such investor; provided that we shall not be required to pay any such liquidated damages if the applicable failure occurred at such time that the 2022/23 Registrable Securities are eligible for resale pursuant to Rule 144 (without volume restrictions or current public information requirements); and provided, further, that we shall not be obligated to pay any such liquidated damages if we are unable to fulfill our registration obligations as a result of rules, regulations, positions or releases issued or actions taken by the SEC pursuant to its authority with respect to Rule 415. The maximum aggregate liquidated damages paid by us will not exceed 6% of the aggregate amount invested by such investor.

 

 

Anti-Takeover Provisions

 

The provisions of the DGCL, our amended and restated certificate of incorporation, and our amended and restated bylaws following the APO could have the effect of delaying, deferring, or discouraging another person from acquiring control of our Company.

 

These provisions, summarized below, are expected to discourage certain types of coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of our Company to first negotiate with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.

 

Section 203 of the DGCL

 

We are subject to the provisions of Section 203 of the DGCL regulating corporate takeovers. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time such person becomes an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:

 

 

before the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

 

 

upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers, and (ii) employee stock plans in some instances; or

 

 

at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.

 

Section 203 defines a business combination to include:

 

 

any merger or consolidation involving the corporation and the interested stockholder;

 

 

any sale, transfer, lease, pledge, or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;

 

 

subject to exceptions, any transaction that results in the issuance of transfer by the corporation of any stock of the corporation to the interested stockholder;

 

 

subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; and

 

 

the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.

 

In general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.

 

Amended and Restated Certificate of Incorporation and Amended and Restated Bylaw Provisions

 

Our amended and restated certificate of incorporation and our amended and restated bylaws include a number of provisions that may have the effect of deterring hostile takeovers, or delaying or preventing changes in control of our management team or changes in our board of directors or our governance or policy, including the following:

 

 

Board Vacancies.    Our amended and restated bylaws and certificate of incorporation authorize generally only our board of directors to fill vacant directorships resulting from any cause or created by the expansion of our board of directors. In addition, the number of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors. These provisions prevent a stockholder from increasing the size of our board of directors and gaining control of our board of directors by filling the resulting vacancies with its own nominees.

 

 

Classified Board.    Our amended and restated certificate of incorporation and amended and restated bylaws provide that our board of directors is classified into three classes of directors. The existence of a classified board of directors could delay a successful tender offeror from obtaining majority control of our board of directors, and the prospect of that delay might deter a potential offeror. See the section titled “Management — Executive Officers and Directors — Classified Board of Directors” for additional information.

 

 

Directors Removed Only for Cause.    Our amended and restated certificate of incorporation provide that stockholders may only remove a director for cause, and removal of our directors for cause will require a supermajority (66 ⅔%) stockholder vote.

 

 

Supermajority Requirements for Amendments of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws.    Our amended and restated certificate of incorporation further provide that the affirmative vote of holders of at least 66 ⅔% of our outstanding Common Stock will be required to amend certain provisions of our amended and restated certificate of incorporation, including provisions relating to the classified board, the size of the board of directors, removal of directors, special meetings, actions by written consent, and designation of our preferred stock. The affirmative vote of holders of at least 66 ⅔% of our outstanding Common Stock required to amend or repeal our amended and restated bylaws, although our amended and restated bylaws may be amended by a simple majority vote of our board of directors.

 

 

 

Elimination of Stockholder Action by Written Consent; Special Meetings of Stockholders.    Our amended and restated certificate of incorporation provide that our stockholders may not take action by written consent but may only take action at annual or special meetings of our stockholders. As a result, holders of our capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our stockholders called in accordance with our amended and restated bylaws. Our amended and restated bylaws provide that a special meeting of stockholders may be called only by a majority of our board of directors, the chairman of our board of directors, or our chief executive officer, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders to take any action, including the removal of directors.

 

 

Advance Notice Requirements for Stockholder Proposals and Director Nominations.    Our amended and restated bylaws establish advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our amended and restated bylaws also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders. We expect that these provisions might also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our Company.

 

 

No Cumulative Voting.    The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting.

 

 

Issuance of Undesignated Preferred Stock.    Our board of directors has the authority, without further action by the stockholders, to issue up to 10 million shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or otherwise.

 

 

Choice of Forum.    Our amended and restated certificate of incorporation provides that, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware will 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 or officers to the company or our stockholders; (iii) any action asserting a claim against our company arising pursuant to the DGCL or our amended and restated certificate of incorporation or our amended and restated bylaws; (iv) any action to interpret, apply, enforce or determine the validity of our amended and restated certificate of incorporation or our amended and restated bylaws; or (v) any action asserting a claim against our company that is governed by the internal affairs doctrine. Our amended and restated bylaws provide that the federal district courts of the United States of America will, to the fullest extent permitted by law, be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, which we refer to as a Federal Forum Provision. Our decision to adopt a Federal Forum Provision followed a decision by the Supreme Court of the State of Delaware holding that such provisions are facially valid under Delaware law. Although there can be no assurance that federal courts or state courts will follow the holding of the Delaware Supreme Court or determine that the Federal Forum Provision should be enforced in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in state court. Although neither the exclusive forum provision nor the Federal Forum Provision applies to suits brought to enforce any duty or liability created by the Exchange Act, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder also must be brought in federal court. Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the regulations promulgated thereunder. Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision. These provisions may limit a stockholder’s ability to bring a claim in a judicial forum of their choosing for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers, and other employees.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our Common Stock is VStock Transfer, LLC. The transfer agent’s address is 18 Lafayette Place, Woodmere, NY 11598, and its telephone number is (212) 828-8436.

 

Limitations of Liability and Indemnification Matters

 

For a discussion of liability and indemnification, see the section titled “Directors, Executive Officers, Promoters and Control Persons — Limitation on Liability and Indemnification Matters.”

 

 

SHARES ELIGIBLE FOR FUTURE SALE

 

Prior to the Merger, there was no public market for our Common Stock. Currently, there is a limited public market for our Common Stock. We cannot predict the effect, if any, that future sales of our Common Stock, or the availability for future sale of shares of our Common Stock, will have on the prevailing price for our Common Stock from time to time. The sale of substantial amounts of shares of our Common Stock in the public market, or the perception that such sales may occur, could cause the prevailing price for our Common Stock to fall or impair our ability to raise equity capital in the future.

 

As of March 1, 2023, we had 40,550,624 shares of Common Stock outstanding, of which our directors and executive officers beneficially own an aggregate of 7,009,695 shares. 

 

Lock-up Agreements

 

In connection with the initial closing of the APO, holders of approximately 21,483,584 shares of our Common Stock agreed, subject to certain exceptions, not to dispose of or hedge any shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock during the period from the date of the lock-up agreement continuing through the date 12 months after the first date on which our Common Stock was first quoted on the OTCQX market. Our Common Stock was first quoted on the OTCQX on May 13, 2022.

 

Following the lock-up period described above, and assuming that no parties are released from these agreements and that there is no extension of the lock-up period, shares of our Common Stock will be eligible for sale in the public market in compliance with Rule 144 or another exemption under the Securities Act or pursuant to the previously mentioned registration statement.

 

Sale of Restricted Shares

 

Of the 40,550,624 shares of Common Stock outstanding upon the completion of the Merger, the APO and the 2022/23 Offering, all of such shares are “restricted securities” as such term is defined in Rule 144. These restricted securities were issued and sold by us in private transactions and are eligible for public sale only if registered under the Securities Act or if they qualify for an exemption from registration under the Securities Act, including the exemption provided by Rule 144, which rule is summarized below.

 

 

Rule 144

 

In general, Rule 144 provides that (i) any of our non-affiliates that has held restricted Common Stock for at least 12 months is thereafter entitled to sell its restricted stock freely and without restriction, provided that we remain compliant and current with our SEC reporting obligations, and (ii) any of our affiliates, which includes our directors, executive officers and other person in control of U.S., that has held restricted Common Stock for at least 12 months is thereafter entitled to sell its restricted stock subject to the following restrictions: (a) we are compliant and current with our SEC reporting obligations, (b) certain manner of sale provisions are satisfied, (c) a Form 144 is filed with the SEC, and (d) certain volume limitations are satisfied, which limit the sale of shares within any three-month period to a number of shares that does not exceed 1% of the total number of outstanding shares or, if our Common Stock is then listed or quoted for trading on a national securities exchange, then the greater of 1% of the total number of outstanding shares and the average weekly trading volume of our Common Stock during the four calendar weeks preceding the filing of the Form 144 with respect to the sale. A person who has ceased to be an affiliate at least three months immediately preceding the sale and who has owned such shares of Common Stock for at least one year is entitled to sell the shares under Rule 144 without regard to any of the limitations described above.

 

Regulation S

 

Regulation S under the Securities Act provides that shares owned by any person may be sold without registration in the U.S., provided that the sale is effected in an offshore transaction and no directed selling efforts are made in the U.S. (as these terms are defined in Regulation S), subject to certain other conditions. In general, this means that our shares of Common Stock may be sold in some other manner outside the United States without requiring registration in the United States.

 

Registration Rights

 

In connection with the Merger and the APO, we entered into the APO Registration Rights Agreement, pursuant to which we agreed to file, subject to customary exceptions, the APO Registration Statement, covering the APO Registrable Securities. The APO Registration Statement was declared effective by the SEC on February 11, 2022, and subsequently amended by a post-effective amendment declared effective by the SEC on March 21, 2023.

 

Subject to customary exceptions, if any APO Registration Event occurs, we will make payments to each holder of APO Registrable Securities as monetary penalties at a rate equal to 12% per annum of the total value of Registrable Securities held or purchased by such holder and affected during the period, based on the APO price ($2.00 per share); provided that the maximum amount of monetary penalties paid by us will not exceed 8% of such total value.

 

We must use commercially reasonable efforts to keep the APO Registration Statement effective for five years from the date it is declared effective by the SEC or until the date on which all APO Registrable Securities have been transferred other than to certain enumerated permitted assignees under the APO Registration Rights Agreement.

 

We will pay all expenses in connection with the registration obligations provided in the APO Registration Rights Agreement, including, without limitation, all registration, filing, and stock exchange fees, printing expenses, all fees and expenses of complying with applicable securities laws, the fees and disbursements of our counsel and of our independent accountants, and the reasonable fees and disbursements of a single counsel to the holders of the APO Registrable Securities, not to exceed $35,000 in the aggregate. Each holder will be responsible for its own sales commissions, if any, transfer taxes and the expenses of any other attorney or advisor such holder decides to employ.

 

In connection with the 2022/23 Offering, we entered into the 2022/23 Registration Rights Agreement, pursuant to which we agreed to prepare and file, subject to customary exceptions, the 2022/23 Registration Statement with the SEC, covering the 2022/23 Registrable Securities. We are required to use our reasonable best efforts to cause the 2022/23 Registration Statement to be declared effective no later than June 28, 2023.

 

Subject to customary exceptions, if any 2022/23 Registration Event occurs, we will pay to each investor in the 2022/23 Offering a cash fee equal to 1% of the aggregate purchase price paid by such investor; provided that we shall not be required to pay any such liquidated damages if the applicable failure occurred at such time that the 2022/23 Registrable Securities are eligible for resale pursuant to Rule 144 (without volume restrictions or current public information requirements); and provided, further, that we shall not be obligated to pay any such liquidated damages if we are unable to fulfill our registration obligations as a result of rules, regulations, positions or releases issued or actions taken by the SEC pursuant to its authority with respect to Rule 415. The maximum aggregate liquidated damages paid by us will not exceed 6% of the aggregate amount invested by such investor.

 

Stock Plans

 

On February 25, 2022, we filed with the SEC a Registration Statement on Form S-8 covering the shares of Common Stock that are outstanding or reserved for issuance under the 2014 Plan and 2021 Plan. Accordingly, shares registered under our Form S-8 registration statement are available for sale in the open market, subject to the lock-up agreements described above, if applicable.

 

 

LEGAL MATTERS

 

The validity of the shares of the Common Stock being offered in this prospectus will be passed upon for us by Brooks, Pierce, McLendon, Humphrey and Leonard L.L.P., Greensboro, North Carolina.

 

EXPERTS

 

The consolidated financial statements of the Company as of December 31, 2022 and 2021, and for each of the years in the two-year period ended December 31, 2022, have been audited by FORVIS, LLP (formerly, Dixon Hughes Goodman LLP), independent registered public accounting firm, as set forth in their report included in this Registration Statement. Their report contains an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern. Their report also contains an explanatory paragraph describing a change in accounting principle for leases due to the adoption of Financial Accounting Standards Board’s Accounting Standards Codification 842, Leases. Such consolidated financial statements have been included herein in reliance upon such report given on the authority of said firm as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We have filed with the SEC this Registration Statement on Form S-1 under the Securities Act with respect to the shares of Common Stock being offered by this prospectus. This prospectus, which constitutes a part of this Registration Statement, does not contain all of the information in this Registration Statement and its exhibits. For further information with respect to us and the Common Stock offered by this prospectus, you should refer to this Registration Statement and the exhibits filed as part of this document. Statements contained in this prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer you to the copy of the contract or other document filed as an exhibit to this Registration Statement. Each of these statements is qualified in all respects by this reference.

 

We are subject to the informational requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read our SEC filings, including this Registration Statement, over the Internet on the SEC’s website at http://www.sec.gov. You may also request a copy of these filings, at no cost, by writing or telephoning us at: Guerrilla RF, Inc. 2000 Pisgah Church Road, Greensboro, NC 27455, (336) 510-7840.

 

INCORPORATION BY REFERENCE

 

The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents filed separately with the SEC. The information that we incorporate by reference in this prospectus is considered to be a part of this prospectus. This prospectus incorporates by reference the documents listed below (other than any portions of such documents that are not deemed “filed” under the Exchange Act in accordance with the Exchange Act and applicable SEC rules):

 

 

our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 3, 2023;

 

 

our Definitive Proxy Statement filed with the SEC on March 9, 2023; and

 

 

our Current Reports on Form 8-K filed with the SEC on January 3, 2023, February 16, 2023, February 23, 2023, March 1, 2023, March 13, 2023, and April 6, 2023.

 

Any statement contained in a previously filed document that is incorporated by reference will be deemed to be modified or superseded for all purposes to the extent that a statement contained in a later document or in this prospectus modifies or is contrary to that previous statement. Any statement so modified or superseded will not be deemed a part of this prospectus except as so modified or superseded.

 

You may request a copy of any of the documents incorporated by reference in this prospectus, at no cost, by writing or telephoning us at the following address or telephone number:

 

Guerrilla RF, Inc.

2000 Pisgah Church Road

Greensboro, North Carolina 27455

Attention: Investor Relations

(336) 579-5320

[email protected]

 

You may also access the documents incorporated by reference into this prospectus through our website at www.guerrilla-rf.com. Except for the specific incorporated documents listed above, information available on, or that can be accessible through, our website does not constitute a part of, and is not incorporated by reference in, this prospectus.

 

 

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

Guerrilla RF, Inc.

 

 

Page

Report of Independent Registered Public Accounting Firm

F-2

Consolidated Balance Sheets

F-3

Consolidated Statements of Operations

F-4

Consolidated Statements of Changes in Stockholders Equity (Deficit)

F-5

Consolidated Statements of Cash Flows

F-6

Notes to Consolidated Financial Statements

F-7

 

 

Report of Independent Registered Public Accounting Firm

 

To the Shareholders and Audit Committee of Guerrilla RF, Inc.:

 

Opinion on the Consolidated Financial Statements

We have audited the accompanying consolidated balance sheets of Guerrilla RF, Inc. (the “Company”) as of December 31, 2022 and 2021, the related consolidated statements of operations, changes in stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2022, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and cash flows for each of the two years in the period ended December 31, 2022, in conformity with accounting principles generally accepted in the United States of America.

 

Substantial Doubt about the Companys Ability to Continue as a Going Concern

The accompanying consolidated financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has suffered recurring losses from operations and has an accumulated deficit that raises substantial doubt about the Company’s ability to continue as a going concern. Management’s plans regarding these matters are also described in Note 1 to the consolidated financial statements. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

Change in Accounting Principle

As discussed in Note 2 to the consolidated financial statements, effective January 1, 2022, the Company changed its method of accounting for leases, effective January 1, 2022 due to the adoption of Financial Accounting Standards Board’s Accounting Standards Codification 842, Leases.

 

Basis for Opinion

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting.  Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

/s/ FORVIS, LLP
(Formerly, Dixon Hughes Goodman LLP)

 

We have served as the Company’s auditor since 2021.

 

Raleigh, NC

March 3, 2023

 

 

Guerrilla RF, Inc.

Consolidated Balance Sheets

December 31, 2022 and 2021


 

 

December 31, 2022

 

December 31, 2021

 

Assets

           

Cash

$

4,340,407

 

$

5,313,985

 

Accounts receivable, net

 

1,124,971

   

1,667,006

 

Inventories, net

 

1,672,925

   

1,439,014

 

Prepaid expenses

 

643,401

   

1,187,418

 

Total Current Assets

 

7,781,704

   

9,607,423

 
             

Prepaid expenses and other

 

3,574,746

   

-

 

Operating lease right-of-use assets

 

209,669

   

-

 

Property, plant, and equipment, net

 

5,098,097

   

1,027,312

 

Total Assets

$

16,664,216

 

$

10,634,735

 
             

Liabilities and Stockholders' Equity

           

Short-term debt

$

959,803

 

$

5,117

 

Operating lease, current portion

 

139,794

   

-

 

Finance lease, current portion

 

1,078,506

   

118,420

 

Accounts payable and accrued expenses

 

4,466,045

   

1,186,443

 

Total Current Liabilities

 

6,644,148

   

1,309,980

 
             

Long-term debt

 

44,279

   

-

 

Operating lease

 

71,714

   

-

 

Finance lease

 

2,984,618

   

264,347

 

Notes payable

 

4,564,564

   

144,783

 

Total Liabilities

 

14,309,323

   

1,719,110

 
             

Preferred stock, $0.0001 par value, 10,000,000 shares authorized, no shares issued and outstanding as of December 31, 2022 and 2021

 

-

   

-

 

Common stock, $0.0001 par value, 300,000,000 shares authorized, 37,267,237 and 33,222,192 shares issued and outstanding as of December 31, 2022 and 2021, respectively

 

3,727

   

3,322

 

Additional paid-in-capital

 

29,424,334

   

23,958,705

 

Accumulated deficit

 

(27,073,168

)

 

(15,046,402

)

Total Stockholders' Equity

 

2,354,893

   

8,915,625

 

Total Liabilities and Stockholders' Equity

$

16,664,216

 

$

10,634,735

 

 

 

Guerrilla RF, Inc.

Consolidated Statements of Operations

For the Years Ended December 31, 2022 and 2021


 

   

Year Ended December 31,

 
   

2022

   

2021

 

Product

 

$

10,558,570

   

$

9,827,817

 

Royalties and non-recurring engineering

   

1,042,334

     

652,082

 

Total

   

11,600,904

     

10,479,899

 
                 

Direct product costs

   

4,835,632

     

4,340,292

 
                 

Gross Profit

   

6,765,272

     

6,139,607

 
                 

Operating Expenses:

               

Research and development

   

8,114,377

     

4,592,879

 

Sales and marketing

   

4,634,012

     

2,752,153

 

General and administrative

   

5,138,410

     

2,464,295

 

Total Operating Expenses

   

17,886,799

     

9,809,327

 
                 

Operating Loss

   

(11,121,527

)

   

(3,669,720

)

                 

Interest expense

   

(874,713

)

   

(551,495

)

Other income (expenses)

   

(30,526

)

   

1,384,060

 

Total Other Income (Expenses), net

   

(905,239

)

   

832,565

 

Net Loss

 

$

(12,026,766

)

 

$

(2,837,155

)

                 

Net loss per share - basic and diluted

 

$

(0.36

)

 

$

(0.24

)

                 

Weighted average common shares outstanding - basic and diluted

   

33,302,237

   

$

11,704,201

 

 

 

Guerrilla RF, Inc.

Consolidated Statements of Change in Stockholders' Equity (Deficit)

For the Years Ended December 31, 2022 and 2021


 

   

Preferred Stock

   

Common Stock

   

Additional Paid-In-Capital

   

Accumulated Deficit

   

Total Stockholders' Equity (Deficit)

 

December 31, 2020

 

$

4,852

   

$

2,261

   

$

9,076,840

   

$

(12,209,247

)

 

$

(3,125,294

)

Net loss

   

-

     

-

     

-

     

(2,837,155

)

   

(2,837,155

)

Stock options exercised

           

247

     

36,748

     

-

     

36,995

 

Conversion of convertible preferred stock to common stock

   

(4,852.00

)

   

1,432

     

300,000

     

-

     

296,580

 

Change in par value of common stock

   

-

     

(1,767

)

   

-

     

-

     

(1,767

)

Conversion of promissory notes to common stock

   

-

     

340

     

5,988,262

     

-

     

5,988,602

 

Issuance of common stock to former stockholders of Laffin Corporation

   

-

     

270

     

-

     

-

     

270

 

Sale of common stock in private placement, net of issuance costs

   

-

     

532

     

8,382,294

     

-

     

8,382,826

 

Repurchase of common stock from an unaccredited investor upon consummation of the merger

   

-

     

-

     

(1,477

)

   

-

     

(1,477

)

Share-based compensation

   

-

     

7

     

176,038

     

-

     

176,045

 

December 31, 2021

   

-

     

3,322

     

23,958,705

     

(15,046,402

)

   

8,915,625

 

Net loss

   

-

     

-

     

-

     

(12,026,766

)

   

(12,026,766

)

Stock options exercised

   

-

     

1

     

5,231

     

-

     

5,232

 

Conversion of promissory notes to common stock

   

-

     

4

     

51,996

     

-

     

52,000

 

Equity financing, net of issuance costs

   

-

     

400

     

4,764,832

     

-

     

4,765,232

 

Share-based compensation

   

-

     

-

     

643,570

     

-

     

643,570

 

December 31, 2022

 

$

-

   

$

3,727

   

$

29,424,334

   

$

(27,073,168

)

 

$

2,354,893

 

 

 

Guerrilla RF, Inc.

Consolidated Statements of Cash Flows

For the Years Ended December 31, 2022 and 2021


 

     

Year Ended December 31,

   

2022

   

2021

 

Cash flows from operating activities

               

Net loss

 

$

(12,026,766

)

 

$

(2,837,155

)

                 

Adjustment to reconcile net loss to net cash used in operating activities

               

Depreciation and amortization

   

1,357,571

     

371,435

 

Share-based compensation

   

643,570

     

176,045

 

Accretion of notes payables

   

48,070

     

-

 

Warrant amortization

   

-

     

45,527

 

PPP loan forgiveness

   

-

     

(1,369,100

)

Gain on extinguishment of debt

   

-

     

(14,960

)

Inventory allowance

   

-

     

12,794

 
                 

Changes in assets and liabilities:

               

Accounts receivable

   

542,035

     

(13,201

)

Inventories

   

(233,911

)

   

(458,175

)

Prepaid expenses

   

862,375

     

(1,086,971

)

Accounts payable and accrued expenses

   

761,948

     

354,385

 

Operating leases

   

(1,203,295

)

   

-

 

Net cash used in operating activities

   

(9,248,403

)

   

(4,819,376

)

                 

Cash flows from investing activities

               

Purchases of property, plant, and equipment

   

(549,850

)

   

(393,359

)

Net cash used in investing activities

   

(549,850

)

   

(393,359

)

                 

Cash flows from financing activities

               

Proceeds from notes payable and factoring agreement

   

9,070,726

     

5,097,870

 

Proceeds from equity financing

   

4,765,232

     

-

 

Proceeds from exercise of stock options

   

5,232

     

36,995

 

Principal payment of notes payable and recourse factoring agreement

   

(3,977,778

)

   

(4,150,701

)

Principal payment on finance lease

   

(985,622

)

   

(100,839

)

Repayment of finance insurance premiums

   

(53,115

)

       

Proceeds from the APO

   

-

     

8,382,826

 

Proceeds from PPP loan

   

-

     

833,300

 

Net cash provided by financing activities

   

8,824,675

     

10,099,451

 
                 

Net decrease in cash

   

(973,578

)

   

4,886,716

 
                 

Cash, beginning of period

   

5,313,985

     

427,269

 

Cash, end of period

 

$

4,340,407

   

$

5,313,985

 
                 

Noncash transactions:

               

Property and equipment financed through finance leases

 

$

4,745,311

   

$

144,177

 

Other long-term asset additions included in accounts payable

 

$

2,369,612

   

$

-

 

Financing of insurance premiums and software

 

$

382,843

   

$

-

 

Right-of-use assets obtained through operating lease

 

$

327,400

   

$

-

 

Conversion of promissory notes to common stock

 

$

52,000

   

$

5,988,602

 

Property and equipment additions included in accounts payable

 

$

15,873

   

$

50,625

 

 

 

Guerrilla RF, Inc.

Notes to Consolidated Financial Statements

December 31, 2022 and 2021


 

1. Organization and Nature of Business

 

Guerrilla RF, Inc. (formerly known as Laffin Acquisition Corp., the “Company”) was incorporated in the State of Delaware on November 9, 2020.  On October 22, 2021, the Company's wholly-owned subsidiary, Guerrilla RF Acquisition Corp., a corporation formed in the State of Delaware on October 20, 2021 (“Acquisition Sub”) and privately held Guerrilla RF Operating Corporation (formerly known as Guerrilla RF, Inc.) entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”).  Pursuant to the terms of the Merger Agreement, on October 22, 2021 (the “Closing Date”), Acquisition Sub merged with and into Guerrilla RF Operating Corporation with Guerrilla RF Operating Corporation continuing as the surviving corporation and a wholly-owned subsidiary of the Company (the “Merger”). 

 

Prior to the Merger, Laffin Acquisition Corp. was a “shell” company registered under the Exchange Act, with no specific business plan or purpose until it began operating the business of Guerrilla RF Operating Corporation following the closing of the Merger.

 

All references in these Consolidated Financial Statements to “Guerrilla RF” refer to Guerrilla RF Operating Corporation, our direct, wholly-owned subsidiary.  Unless otherwise stated or the context otherwise indicates, references to the “Company”, “we”, “our”, “us” or similar terms refer to Guerrilla RF, Inc. (formerly known as Laffin Acquisition Corp.) together with its wholly-owned subsidiary, Guerrilla RF.  Guerrilla RF holds all material assets and conducts all business activities and operations of the Company.  Accordingly, throughout these Consolidated Financial Statements, there are frequent references to Guerrilla RF. 

 

Guerrilla RF designs and manufactures high‐performance Monolithic Microwave Integrated Circuits (MMICs) for the wireless infrastructure market.  Guerrilla RF primarily focuses on researching and developing its existing products and building an infrastructure to handle a global distribution network; therefore, it has incurred significant start‐up losses. 

 

The Merger was accounted for as a “reverse acquisition” since, immediately following the consummation of the Merger, Guerrilla RF effectively controlled the Company. For accounting purposes, Guerrilla RF was deemed to be the accounting acquirer in the Merger and, consequently, the Merger is treated as a recapitalization of Guerrilla RF (i.e., a capital transaction involving the issuance of shares by the Company for the shares of Guerrilla RF). Accordingly, the assets, liabilities, and results of operations of Guerrilla RF became the historical consolidated financial statements of the Company, and the Company’s assets, liabilities, and results of operations were consolidated with Guerrilla RF beginning at the Closing Date.  No step-up in basis or intangible assets or goodwill were recorded in the Merger.

 

Liquidity and Going Concern

 

Per Accounting Standards Update (“ASU”) No. 2014-15, Disclosure of Uncertainties about an Entitys Ability to Continue as a Going Concern (Subtopic 205-40), the Company has evaluated whether there are conditions and events, considered in the aggregate, that raise substantial doubt about the Company’s ability to continue as a going concern within one year after the date that the consolidated financial statements are issued.

 

The accompanying consolidated financial statements have been presented on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the ordinary course of business.  The Company has historically financed its activities principally from common and preferred equity securities and debt issuance.

 

The Company has incurred substantial negative cash flows from operations in nearly every fiscal period since inception.  For the year ended December 31, 2022, the Company incurred a net loss of $12.0 million and used $9.2 million in cash to fund operations.  As a result, the Company had an accumulated deficit of $27.1 million as of December 31, 2022.  The Company's cash as of December 31, 2022 was $4.3 million.  We expect losses and negative cash flows to continue in the near term, primarily due to continued investment in research and development, sales and marketing efforts, and increased administration expenses as our Company grows.  We plan to continue to invest in the implementation of our long-term strategic plan and we anticipate that we will require additional funding in fiscal 2023.  There is no assurance that appropriate funding will be available on terms, which are acceptable to us, or at all.  This requirement for additional funding raises substantial doubt about our ability to continue as a going concern.

 

Our primary source of liquidity is cash raised from private placements and debt financing.  We also have two loan facilities, one of which is for up to $3.0 million with a specialty lender (referred to as the Spectrum Loan Facility, described in Note 5 to our consolidated financial statements), and the other of which is for up to $8.0 million with a different lender (referred to as the Salem Loan Facility, also described in Note 5 to our consolidated financial statements).  As of December 31, 2022, we had drawn down $0.72 million under the Spectrum Loan Facility and $5.0 million under the Salem Loan Facility.  The Company raised gross proceeds of approximately $9.2 million in a private placement offering with the final closing on February 28, 2023, including $4.2 million after December 31, 2022, to further support its current and future liquidity needs.  The Company believes that its existing cash and cash equivalents will provide sufficient resources to support operations through the second quarter of 2023.  Potentially, the Company could draw down additional funds under the Spectrum Loan Facility; however, its ability to do so is dependent upon the value of eligible accounts receivable assigned to Spectrum as security for advances under the Spectrum Loan Facility, which value fluctuates from time to time and is ultimately outside of the Company’s control.  In addition, the Company anticipates seeking permission from Salem to draw down up to an additional $3.0 million of the $8.0 million Salem Loan Facility; however, Salem has discretion to, and may, decline the Company’s request.  The Company is also pursuing additional funding opportunities, including planning for a further capital raise in the second quarter of 2023 in connection with its planned uplisting to the Nasdaq Capital Market or another national securities exchange.  In the event the Company is unable to secure these or other funding sources, it may be unable to fund ongoing operations and pay its obligations as they become due after the second quarter of 2023. 

 

The Company will require additional funds to respond to business challenges, including developing new solutions or enhancing existing solutions, enhancing our operating infrastructure, expanding our sales and marketing capabilities, and acquiring complementary businesses, technologies, or assets.  We plan to engage in additional equity or debt financing to secure the necessary funds; however, equity and debt financing might not be available when needed or, if available, might not be available on terms satisfactory to us.  If we raise additional funds through equity financing, our stockholders may experience dilution.  Debt financing, if available, may involve covenants restricting our operations or our ability to incur additional debt.  If we are unable to obtain adequate financing or financing on terms satisfactory to us in the future, our ability to continue as a going concern, to support our business growth, and to respond to business challenges could be significantly limited as we may have to delay, reduce the scope of, or eliminate some or all of our initiatives, which could harm our operating results.

 

 

Risks and Uncertainties

 

The Company is subject to several risks associated with companies at a similar stage, including dependence on key individuals, competition from similar products and larger companies, volatility of the industry, ability to obtain adequate financing to support growth, the ability to attract and retain additional qualified personnel to manage the anticipated growth of the Company, and general economic conditions.

 

2. Basis of Presentation and Summary of Significant Accounting Policies

 

Basis of Presentation and Principles of Consolidation

 

The accompanying consolidated financial statements have been prepared in accordance with GAAP and with the rules and regulations for reporting the Annual Report on Form 10-K (“Form 10-K”), and are presented in U.S. dollars.  Accordingly, they do not include all of the information and notes required by GAAP for annual consolidated financial statements.  Any reference in these Notes to applicable guidance is meant to refer to the authoritative GAAP as found in the Accounting Standards Codification (“ASC”) and as amended by Accounting Standards Updates (“ASU”) of the Financial Accounting Standards Board (“FASB”).  The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiary, Guerrilla RF.  All intercompany accounts and transactions have been eliminated in consolidation.

 

Emerging Growth Company

 

The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act of 1933, as amended (the "Securities Act"), as modified by the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), and it may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.

 

Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable.  The Company has elected not to opt out of the extended transition period, which means that when a standard is issued or revised and it has different application dates for public and private companies, the Company, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard.  This may make comparison of the Company’s financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.

 

Use of Estimates

 

The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and reported amounts of revenue and expenses during the reporting period. In addition, the Company’s significant estimates and judgments involve the identification of performance obligations in revenue recognition and the valuation of share-based compensation, including the underlying fair value of the common stock. Accordingly, actual results could differ from those estimates.

 

Segment Information

 

Operating segments are defined as components of an enterprise about which separate discrete information is available for evaluation by the chief operating decision-maker, or decision-making group, in deciding how to allocate resources and in assessing performance.  The Company views its operations and manages its business in one segment.

 

Concentrations of Credit Risk and Major Customers

 

Financial instruments at December 31, 2022 and 2021 that potentially subject the Company to concentration of credit risk consist primarily of cash and accounts receivable.

 

The Company’s cash is deposited with major financial institutions in the U.S. At times, deposits in financial institutions located in the U.S. may be in excess of the amount of insurance provided on such deposits by the Federal Deposit Insurance Corporation (FDIC). To date, the Company has not experienced any losses on its cash deposits.

 

The Company’s accounts receivable are derived from revenue earned from customers located in and outside of the U.S. Major customers are defined as those generating revenue in excess of 10% of the Company’s annual product shipment revenue. The Company had one major customer during the years ended December 31, 2022 and 2021. Revenues from the major customer accounted for 81% of product shipment revenue for both the years ended December 31, 2022 and 2021.  Accounts receivable from our major customer represented 76% of accounts receivable at December 31, 2022, and 78% of accounts receivable at December 31, 2021.

 

 

Accounts Receivable

 

Accounts receivable primarily relate to amounts due from customers, which are typically due within 30 to 45 days. Accounts receivable also include royalty revenue from our one royalty agreement. The Company provides credit to its customers in the ordinary course of business and evaluates the need for allowances for potential credit losses.  The Company does not require collateral or other security for accounts receivable. To reduce credit risk with accounts receivable, the Company performs ongoing evaluations of its customers’ financial condition.  The Company establishes an allowance for expected credit losses and other customer claims.  Historically, such losses have been immaterial and within management's expectations.  

 

The Company had a factoring agreement that provided advance payments on up to 85% of invoices issued to RFPD, its largest distributor, with receivables less than 90 days outstanding secured by the remaining 15%.  As of December 31, 2021, the Company had $0 of factored invoices.  The Company terminated this factoring agreement in the second quarter of 2022.

 

On June 1, 2022,  the Company established a new loan facility (the Spectrum Loan Facility) with Spectrum.  The Spectrum Loan Facility provides for advance payments up to $3 million, calculated, in part, based on the value of eligible accounts receivable assigned to Spectrum as security for advances under the Spectrum Loan Facility.  As of December 31, 2022, there were $0.7 million of advances under the Spectrum Loan Facility.  At December 31, 2022, $0.1 million of excess collateral was due from Spectrum, which is included in accounts receivable on the consolidated balance sheets.  See Note 5 for additional discussion on the Spectrum Loan Facility.

 

Property and Equipment

 

Property and equipment are stated at cost, less accumulated depreciation and amortization. The Company depreciates computer hardware, software, production and computer equipment, and lab equipment using the straight-line method over their estimated useful lives, ranging from three to five years. The Company depreciates furniture and fixtures using the straight-line method over their estimated useful lives of seven years. Leasehold improvements are amortized over the shorter of the asset’s useful life or the remaining lease term. Repairs and maintenance are expensed as incurred by the Company.

 

Impairment of Long-Lived Assets

 

The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate the carrying amount of an asset may not be recoverable. The recoverability of assets held and used is measured by comparing the carrying amount of an asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets, less costs to sell. The Company evaluated its long-lived assets for impairment in the year ended December 31, 2022 and determined a small subset of its production mask sets and one laptop were impaired and recorded an asset impairment expense.  See Note 4 for further information. The Company did not record any expense related to asset impairment in 2021.

 

Deferred Offering Costs

 

The Company has not capitalized legal, professional, accounting, and other third-party fees directly associated with common equity financings as deferred offering costs as these acquisition costs are immaterial in relation to the financing and as a portion of our consolidated balance sheet.  Transaction costs consisting of legal, accounting, financial advisory, and other professional fees incurred as part of the Merger mentioned in Note 1, and the private placements mentioned in Note 6 were offset against the total proceeds from the Merger and private placements in the accompanying consolidated financial statements for both the years ended December 31, 2022 and 2021.

 

Convertible Preferred Stock Warrants

 

Accounting standards require that freestanding warrants and similar instruments, with certain settlement features of the financial instruments, should be accounted for as a preferred stock warrant liability even though the underlying shares of capital stock may be classified as equity. Such warrants would be measured and recognized at fair value and subject to re-measurement at each balance sheet date.  All of the Company’s convertible preferred stock warrants were previously classified as equity (see Note 1 for further discussion of the equity conversion as part of the Merger).  The Company did not have any convertible preferred stock warrants as of December 31, 2022 and 2021.

 

Revenue Recognition

 

The Company recognizes product revenue when it satisfies a performance obligation by transferring a product or service to its customers in an amount that reflects the consideration the Company expects to be entitled to in exchange for those products and services. Sales and other taxes the Company collects concurrent with revenue-producing activities are excluded from revenue. Shipping and handling fees charged to customers are reported within revenue. The Company does not have any significant financing components as payment is received at or shortly after the point of sale. The Company provides an assurance-type warranty to its customers as part of its contracts' standard terms and conditions, which does not include a right of return for properly functioning products not deemed obsolete. These warranties do not provide an additional distinct service to the customer and are not deemed a separate performance obligation. Royalty revenue is recognized at the later of when the subsequent sale or usage occurs, or the performance obligation to which some or all the sales-based royalties have been allocated are satisfied.

 

As of December 31, 2022 and 2021, the Company had $250 thousand and $0, respectively, of revenue from contracts with customers to be recognized over time as the services are delivered to the customer.  Certain nonrecurring engineering service revenues are recognized over time as the services are delivered to the customer.  During the year ended December 31, 2022, the Company recognized $0 of revenue that was deferred as of December 31, 2021.  As of December 31, 2022 and 2021, the Company did not have any contract liabilities where performance obligations have not yet been satisfied.  During the years ended December 31, 2022 and 2021, there was no revenue recognized from performance obligations satisfied (or partially satisfied) in previous periods.

 

The costs incurred by the Company for shipping and handling are classified as cost of revenue in the consolidated statements of operations. Any incidental items that are immaterial in the context of a sale to a customer are recognized as expense.

 

 

Direct Product Costs

 

The Company’s direct product costs consist primarily of salaries and related expenses, overhead, third-party services vendors, shipping and handling, and depreciation expense related to the equipment and information technology costs incurred directly in the Company’s revenue-generating activities.

 

Share-Based Compensation

 

The Company measures and recognizes compensation expense for all stock options awarded to employees and nonemployees based on the estimated fair market value of the award on the grant date. The Company uses the Black-Scholes option pricing model to value its stock option awards. The Company recognizes compensation expense on a straight-line basis over the requisite service period, which is generally the award's vesting period. In addition, the Company accounts for forfeitures of stock options as they occur.

 

Estimating the fair market value of options requires the input of subjective assumptions, including the estimated fair value of the Company’s common stock, the expected life of the options, stock price volatility, the risk-free interest rate, and expected dividends. Therefore, the assumptions used in the Company’s Black-Scholes option-pricing model represent management’s best estimates and involve many variables, uncertainties, and assumptions, and the application of management’s judgment, as they are inherently subjective.

 

Research and Development Costs

 

Research and development costs are expensed as incurred and consist primarily of personnel-related engineering and technical staff wages and benefits, prototype costs, and other direct expenses.

 

Advertising Costs

 

All advertising costs are expensed as incurred and included in sales and marketing expenses. Advertising expenses for the years ended December 31, 2022 and 2021 were $39,219 and $18,108, respectively.

 

Inventories

 

Inventories are valued at the lower of cost and net realizable value. Cost is determined by the first‐in, first‐out (FIFO) method.  The Company analyzes its product portfolio and inventory aging in determining whether an inventory allowance is needed.  Historically, such allowances have been immaterial and within management's expectations.  

 

Income Taxes

 

Income taxes are accounted for under the asset and liability method as required by FASB ASC Topic 740, Income Taxes (“ASC 740”). Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the consolidated financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period corresponding to the enactment date. Under ASC 740, a valuation allowance is required when it is more likely than not all or some portion of the deferred tax assets will not be realized through generating sufficient future taxable income.

 

FASB ASC Subtopic 740 10, Accounting for Uncertainty of Income Taxes, (“ASC 740 10”) defines the criterion upon which an individual tax position must meet for any part of the benefit of the tax position to be recognized in consolidated financial statements prepared in conformity with GAAP. The Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not such tax position will be sustained on examination by the taxing authorities, based solely on the technical merits of the respective tax position. The tax benefits recognized in the consolidated financial statements from such a tax position should be measured based on the largest benefit having a greater than 50% likelihood of being realized upon ultimate settlement with the tax authority. In accordance with the disclosure requirements of ASC 740 10, the Company’s policy on the statement of operations classification of interest and penalties related to income tax obligations is to include such items as part of total income tax expense.

 

 

Net Loss Per Share

 

Basic net loss per share of common stock is computed by dividing net loss by the weighted average number of common stock outstanding during each period. Diluted net loss per common stock includes the effect, if any, from the potential exercise or conversion of securities, such as options and warrants, which would result in the issuance of incremental common stock. For periods prior to the Merger mentioned in Note 1, each of Guerrilla RF’s shares of capital stock issued and outstanding immediately prior to the closing of the Merger was retrospectively converted into approximately 2.95 shares of the Company's common stock.  In computing basic and diluted net loss per share, the weighted average number of shares is the same for both calculations because a net loss existed for the years ended December 31, 2022 and 2021. As such, all preferred stock, warrants, and options were excluded from the calculation of net loss per share for the years ended December 31, 2022 and 2021.

 

The following potentially dilutive securities have been excluded from the computation of diluted weighted-average shares of common stock outstanding, as they would be anti-dilutive:

   

2022

   

2021

 

Common stock warrants

   

2,855,101

     

331,580

 

Restricted stock units

   

873,820

     

-

 

Stock options

   

3,607,318

     

3,180,882

 
     

7,336,239

     

3,512,462

 

 

Recent Accounting Pronouncements

 

In February 2016, the FASB issued ASC Topic 842, Leases. This standard requires all entities that lease assets with terms of more than 12 months to capitalize the assets and related liabilities on the balance sheet.  In June 2020, the FASB issued ASU 2020-05, which delayed the effective date of Topic 842 until January 1, 2022.  The Company adopted Topic 842 in the fiscal quarter ended March 31, 2022.  See Note 8 for further information related to lease obligations on the consolidated balance sheet upon adopting ASC Topic 842.

 

In June 2016, the FASB issued ASU 2016-13, Financial Instruments - Credit Losses, which requires financial assets measured at amortized cost basis to be presented at the net amount expected to be collected.  This standard is effective for fiscal years beginning after December 15, 2022, and early adoption is permitted.  The Company does not intend to adopt this standard early and is currently evaluating the impact of this standard.

 

In August 2020, the FASB issued ASC Update No. 2020-06, Debt - Debt with Conversion and Other Options (Subtopic 470-20and Derivatives and Hedging - Contracts in Entitys Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entitys Own Equity. The goal of the ASC is to simplify the complexity associated with applying GAAP for certain financial instruments with characteristics of liabilities and equity. More specifically, the amendments focus on the guidance for convertible instruments and derivative scope exception for contracts in an entity’s own equity. The new standard is effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Early adoption is permitted, but no earlier than fiscal years beginning after December 15, 2020, including interim periods within those fiscal years. The Company adopted this accounting guidance in the fiscal quarter ended March 31, 2022, and it did not have a material impact on its consolidated financial statements.

 

Effective January 1, 2022, the Company adopted ASU No. 2019-12, Income Taxes (Topic 740Simplifying the Accounting for Income Taxes.  The amendments in ASU 2019-12 eliminate certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences.  ASU 2019-12 also clarifies and simplifies other aspects of the accounting for income taxes.  The amendments in ASU 2019-12 became effective for the Company as of the beginning of our 2022 fiscal year.  The Company adopted ASU 2019-12 on a prospective basis and the adoption did not have a material impact upon its financial condition or results of operations.

 

In September 2022, the FASB issued ASU No. 2022-04, Liabilities - Supplier Finance Programs (Subtopic 405-50): Disclosure of Supplier Finance Program Obligations.  This guidance requires annual and interim disclosures for entities that use supplier finance programs in connection with the purchase of goods and services.  These amendments are effective for fiscal years beginning after December 15, 2022, except for the amendment on rollforward information, which is effective for fiscal years beginning after December 15, 2023.  The Company is currently assessing the impact of this guidance on our consolidated financial statements.

 

3. Inventories

 

Inventories are summarized as follows:

   

2022

   

2021

 

Raw materials

 

$

696,409

   

$

629,090

 

Work-in-process

   

44,037

     

339,746

 

Finished goods

   

932,479

     

482,972

 

Inventory allowance

   

-

     

(12,794

)

Inventory, net

 

$

1,672,925

   

$

1,439,014

 

 

As of December 31, 2021, there was an inventory allowance of $12,794 made up of potential scrap and obsolete inventory.

 

 

4. Property and Equipment

 

Property and equipment is summarized as follows:

   

2022

   

2021

 

Production assets

 

$

1,849,808

   

$

1,616,308

 

Computer equipment and software

   

809,038

     

647,852

 

Lab equipment

   

3,965,189

     

103,427

 

Office furniture and fixtures

   

1,044,858

     

51,354

 

Leasehold improvements

   

123,109

     

123,109

 

Construction work in progress

   

207,027

     

63,750

 
     

7,999,029

     

2,605,800

 

Less accumulated depreciation

   

(2,900,932

)

   

(1,578,488

)

   

$

5,098,097

   

$

1,027,312

 

 

Depreciation expense was $1,357,571 and $371,435 for the years ended December 31, 2022 and 2021, respectively.

 

Impairment of Long-Lived Assets

 

The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the asset’s carrying amount may not be recoverable.  The Company conducts its long-lived asset impairment analyses in accordance with ASC 360-10, Property, Plant, and Equipment.  ASC 360-10 requires the Company to group assets and liabilities at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities and evaluate the asset group against the sum of the undiscounted future cash flows.  If the undiscounted cash flows do not indicate the carrying amount of the asset is recoverable, an impairment charge is measured as the amount by which the carrying amount of the asset group exceeds its fair value based on discounted cash flow analysis or appraisals.

 

In fiscal 2022, the Company concluded the undiscounted future cash flows associated with certain of its long-lived assets, specifically mask sets used in the production of a small subset of Company products and information technology equipment, indicated the carrying amount of those items was not recoverable.  As a result, the Company reviewed the long-lived assets for impairment and recorded a $20 thousand impairment charge included in General and Administrative expenses on the consolidated statement of operations.  The impairment was measured under an income approach utilizing forecasted discounted cash flows to determine fair values of the impairment assets.  The inputs utilized in the analyses are classified as Level 3 inputs within the fair value hierarchy as defined in ASC 820, Fair Value Measurement.

 

At  December 31, 2022, the Company concluded it did not have any other triggering events requiring assessment of impairment of its long-lived assets.  

 

5. Debt

 

Factoring Arrangement

 

The Company previously had an accounts receivable factoring arrangement with a financial institution (the “Factor”), which ended in the second quarter of 2022.  Under the terms of the agreement, the Company, from time to time, sold to the Factor certain of its accounts receivable balances on a recourse basis for credit-approved accounts.  The Factor remitted 85% of the domestic accounts receivable balance to the Company (the “Advance Amount”), with the remaining balance, less fees to be paid to the Company once the Factor collected the entire accounts receivable balance from the customer.  The factoring fee was 0.98 % of the invoice’s face value factored for the first 30 days required to collect the invoice and prorated on a per diem basis at 0.0327 % each day thereafter.  The minimum invoice fee for any factored invoices was $1.50.  The Company included the cost of factoring in interest expense.

 

As stated previously, the Company factored the accounts receivable on a recourse basis.  Therefore, if the Factor could not collect the factored accounts receivable, the Company had to refund the Advance Amount remitted to it for any uncollected accounts receivable.  Accordingly, the Company recorded the liability of having to refund the Advance Amount as short-term debt when the factoring arrangement was utilized.  The Company terminated the factoring arrangement as of June 1, 2022.  As of December 31, 2022, and 2021 there were no advances or other liabilities outstanding under the factoring arrangement. 

 

The cost of factoring was as follows:

   

Year Ended December 31, 2022

   

Year Ended December 31, 2021

 

Factoring Fees

 

$

-

   

$

87,122

 

 

 

Spectrum Loan Facility

 

The Company entered into the Spectrum Loan Facility with Spectrum pursuant to the terms of the General Credit and Security Agreement (the "Credit Agreement"), the Company may borrow monies to purchase eligible equipment in an amount equal to the lesser of (i) 75% of the cost of such eligible equipment and (ii) $500,000; provided that this maximum eligibility will automatically be reduced by 1/48th each month during the term of the facility. The Credit Agreement also allows for additional borrowing in an amount equal to the lesser of (i) 50% of the net amount of eligible inventory (as defined in the Credit Agreement), (ii) $350,000, and (iii) 50% of the purchased accounts receivable outstanding under the related Assignment of Accounts and Security Agreement (the “AR Agreement”).

 

Under the terms of the AR Agreement, Spectrum has agreed to advance funds equal to approximately 85% of eligible accounts receivable that are collected by Spectrum under a “lock box” arrangement.  The maximum amount that may be advanced under the AR Agreement is $3,000,000 less any amounts loaned under the Credit Agreement.

 

The scheduled term of the Spectrum Loan Facility is 24 months from the Spectrum Effective Date, unless earlier terminated as per the terms of the Spectrum Loan Facility.  The term of the facility will automatically renew unless either party provides at least 60 days’ notice prior to the scheduled expiration date.  In the event of an early termination of the AR Agreement by the Company or resulting from the Company’s default or other circumstances impacting the Company (including bankruptcy, reorganization, sale of assets, and cessation of business), the Company will be required to pay a prepayment fee.

 

The Company’s obligations under the Spectrum Loan Facility are secured by first-priority liens on essentially all of the Company’s assets; provided, however, that the Company is permitted to grant purchase money security interests on certain equipment, furniture and similar tangible assets financed by a third party.

 

In addition to annual facility fees of $30,000 and other quarterly and transaction fees payable to Spectrum, interest accrues on amounts owed under the Spectrum Loan Facility at the prime rate as quoted by the Wall Street Journal plus 3.5%, but in no event lower than 7.0%.

 

The Spectrum Loan Facility contains various covenants and restrictions on the Company's financial and business operations including restrictions on the purchase or redemption of any Company shares and the declaration or payment of any dividends on the Company's stock.  For the year ended December 31, 2022, the Company maintained compliance with these covenants and restrictions.

 

The Company has borrowed $0.7 million under the Spectrum Loan Facility as of December 31, 2022.  The Company includes the interest expense of the Spectrum Loan Facility ($66 thousand) as part of its interest expense on its consolidated statements of operations, and the total amount of $0.7 million borrowed under the Spectrum Loan Facility is included as short-term debt on the consolidated balance sheet as of December 31, 2022.

 

Salem Loan Facility

 

On August 11, 2022 (the “ Salem Effective Date”), the Company entered into the Salem Loan Facility with Salem.  The Salem Loan Facility provides for a loan facility in the aggregate amount of up to $8.0 million.

 

The Salem Loan Facility provided for an initial advance of $5.0 million, and additional advances over the next twelve months from the Salem Effective Date of up to $3.0 million at Salem’s discretion.  The Salem Loan Facility has a five-year term, is secured by a second-priority lien on essentially all of the Company’s assets and provides for aggregate interest payments of 13.0% per annum, with 11.0% payable in cash and 2.0% paid-in-kind, with the principal and outstanding interest due in  August 2027.  In addition to a 2.0% fee paid prior to closing on the Salem Loan Facility, the Company issued Salem 150,000 shares of common stock as consideration for the Salem Loan Facility.  The Company will issue up to an additional 150,000 shares in the event that Salem advances the additional $3.0 million.

 

The Salem Loan Facility contains various covenants and restrictions on the Company's financial and business operations including restrictions on the purchase or redemption of any Company shares and the declaration or payment of any dividends on the Company's stock.  For the year ended December 31, 2022, the Company maintained compliance with these covenants and restrictions.

 

Should the Company repay the Salem loan during the first three years of the five-year term, it may be required to pay a prepayment premium equal to (i) 3.0% of the prepaid principal during year 1, (ii) 2.0% of the prepaid principal during year 2, and (iii) 1.0% of the prepaid principal during year 3.  The Salem Loan Facility contains customary affirmative and negative covenants that impose restrictions on the Company’s financial and business operations, including limitations on liens, indebtedness, and fundamental changes in the nature of the Company’s business.  In addition, the Salem Loan Facility provides that the Company must maintain compliance with a maximum leverage ratio and a minimum liquidity covenant.

 

On August 11, 2022, in connection with the closing of the Salem Loan Facility, the Company paid off its obligations under its Economic Injury Disaster Loan ("EIDL") loan from the Small Business Administration (see further discussion of the EIDL loan below). 

 

The Company has borrowed $5.0 million under the Salem Loan Facility as of December 31, 2022.  As of December 31, 2022, the Company includes the interest expense of the Salem Loan Facility ($172 thousand) as part of its interest expense on its consolidated statements of operations, the total amount of $5.0 million borrowed as undiscounted long-term debt on its consolidated balance sheets ($4.6 million discounted long-term debt), and the 150,000 shares of common stock issued ($0.5 million) within the consolidated statements of stockholders' equity (deficit) .

 

 

Loans Payable – EIDL

 

In response to COVID-19, the SBA created the EIDL program in March 2020.  The program's purpose was to help small businesses meet financial obligations that could have been met had the COVID-19 pandemic not occurred.  Unlike the Paycheck Protection Program ("PPP"), an EIDL loan is not forgivable in the future but provides favorable interest and payment terms.  The maximum EIDL available was equivalent to six months of a business’s working capital, up to $150,000.  Businesses could use EIDL proceeds for working capital and normal operating expenses.  On June 24, 2020, the Company received loan proceeds of $150,000 under the EIDL program.  As part of the EIDL program, the Company agreed to the SBA collateral conditions and agreed to pay annual interest of 3.75% per annum on the outstanding principal balance.  Monthly installment payments were to commence at the end of the anticipated deferral allowance period in December 2022 for up to a maximum of 30 years from the loan date (thus, 2050).  As mentioned above, in conjunction with closing the Salem Loan Facility on August 11, 2022, the Company repaid the entire outstanding principal ($149,900) and accrued interest ($12 thousand) of the EIDL loan.

 

Loans Payable PPP

 

On April 30, 2020, Guerrilla RF received loan proceeds of $535,800 under the PPP.  Established as part of the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) administered by the SBA. PPP loans and accrued interest are forgivable after a “covered period” (24 weeks) as long as the borrower maintains its payroll levels and uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities. As of December 31, 2020, Guerrilla RF had $535,800 of principal outstanding on the PPP loan together with accrued interest of $3,611 as accounts payable and accrued expenses less $90,000 shown as long-term liability on the consolidated balance sheet.  On February 17, 2021, Guerrilla RF received approval from the SBA that the $535,800 PPP loan was forgiven, including all accrued interest.

 

On February 19, 2021, Guerrilla RF received loan proceeds of $833,300 (the “2021 PPP Loan”) also under the same CARES Act. Guerrilla RF used the 2021 PPP Loan to retain current employees, maintain payroll, and make lease and utility payments.  On August 18, 2021, Guerrilla RF received confirmation from the SBA that the 2021 PPP Loan, including accrued interest, had been forgiven.

 

The Company recorded the forgiveness of both PPP loans and the related accrued interest as a gain in other income (expense) on the consolidated statements of operations.  Accordingly, as of December 31, 2022, the Company had no principal outstanding on the PPP loans or accrued interest.

 

Notes Payable

 

Since its founding, the Company has utilized privately placed funding through equity and unsecured debt instruments.  See Note 6 for details on equity funding.

 

The Company entered into several debt arrangements from capital raise events and bridge loans from existing investors.  These debt arrangements were characterized by interest-only quarterly payments paid in arrears. Per the terms of the debt arrangements, the principal was paid in its entirety at the respective maturity date. In addition, all such debt agreements could be prepaid by the Company without any penalty.

 

From March 2017 through July 2020, the Company entered into debt financings with multiple investors for a total of $4,000,000 in promissory notes with various maturity dates from March 2022 to December 31, 2023.  The debt instruments had interest rates from 8% to 12% per annum.  The outstanding balances of the promissory notes were converted to common stock at the closing of the Merger.

 

On June 1, 2018, the Company entered into a promissory note with an investor for $1,000,000 with a maturity date of May 31, 2020.  In connection with this promissory note and the terms of the related loan agreement, the Company issued two warrants for the purchase of Series E preferred stock of the Company.  On April 15, 2020, the note and warrants were transferred to a related party of the lender.  Following that transfer, the new warrant holder exercised these warrants and purchased shares of preferred stock for a total cash consideration of $500,001 to satisfy $500,000 of the $1,000,000 note payable.  In addition, this new holder of the note payable agreed to refinance the remaining $500,000 of the $1,000,000 note payable, which then had a maturity date of May 31, 2022.  The outstanding balance of this promissory note was converted to common stock at the closing of the Merger.

 

Convertible Promissory Notes 

 

As further described in Note 1, the Company entered into a Merger Agreement effective October 22, 2021.  On October 22, 2021, pursuant to the terms of the Merger Agreement, all of the common stock of Guerrilla RF (including common stock issued upon the conversion of preferred stock and $4.5 million of pre-2021 convertible notes) held by accredited investors was converted into an aggregate of 24,130,642 shares of Company common stock.  These pre-2021 convertible notes were converted into 2,647,059 shares of the Company’s common stock at a price of $1.70 per share.  In addition, in connection with the Merger, the Company issued 744,300 shares of common stock in exchange for $1,488,600 of convertible notes that were issued by Guerrilla RF in contemplation of the Merger.

 

Per the terms of several debt arrangements entered into with new and existing investors prior to the Merger, the principal was to be paid in its entirety at the respective maturity date or upon conversion as a result of the Merger without any penalty.  Upon successful closing of the aforementioned Merger and related financing, all of the outstanding principal amounts of the new notes payable issued just prior to the Merger ($1,488,600) and the above-described existing notes payable ($4.5 million), automatically, without the necessity of any action by the noteholder or the Company, converted into securities of the Company.  All accrued but unpaid interest on the existing and new notes payable as of the effective date of the Merger were paid in cash to the noteholder within fifteen (15) business days following the Merger ($51,627).

 

 

Warrants

 

In connection with some of the debt described above, certain lenders were issued warrants to purchase up to 116,733 pre-Merger shares of Series D and E preferred stock at $2.57 per share.  In April 2018, Guerrilla RF completed a Series E preferred stock convertible note private offering in which 898,542 pre-Merger shares of Series E Preferred Stock were issued at $2.57 per share together with warrants to purchase an additional 77,821 pre-Merger shares of Series E preferred stock.  In consideration of funds advanced pursuant to a $1,000,000 promissory note accruing interest at 8% per annum from an existing investor, Guerrilla RF issued warrants on June 1, 2018, for the purchase of 38,911 pre-Merger shares of Series E Preferred Stock (in total) at $2.57 per share with different termination dates.  All outstanding warrants immediately prior to the October 22, 2021 closing date of the Merger were converted into Company common stock (as further described in Note 1).

 

Long‐term debt is summarized as follows:

   

2022

 

2021

Note payable with monthly interest-only payments at 11%, maturing in August 2027, unsecured, net of loan origination fees

 

4,408,187

 

-

         

Note payable with monthly payments beginning in June 2022 at 3.75% interest, maturing in June 2050, secured by all tangible and intangible property

 

-

 

149,900

         

Finance agreement for directors and officers insurance premium with monthly payments at 4.95% interest, maturing in August 2023

 

216,886

   
         

Finance agreement for software, with monthly payments at various interest rates, and maturity dates

 

216,217

   
         

Recourse factoring

 

727,356

 

-

         

Total notes payable

 

5,568,646

 

149,900

         

Less current portion

 

(959,803)

 

5,117

         
   

$ 4,608,843

 

$ 144,783

 

Debt Maturity

 

Debt is expected to mature as follows:

2023

$

959,803

2024

 

18,360

2025

 

18,861

2026

 

6,092

2027

 

4,565,530

Thereafter

 

-

 

$

5,568,646

 

6. Common Stock and Convertible Preferred Stock

 

Common Stock

 

The Company is authorized to issue 300,000,000 shares of common stock with a par value of $ 0.0001 as of December 31, 2022 and 2021.  Each share of common stock entitles the holder to one vote on all matters submitted to a vote of the Company’s stockholders. Subject to preferences that may apply to any outstanding preferred stock, holders of common stock are entitled to receive ratably any dividends that the Company’s Board of Directors may declare out of funds legally available for that purpose on a non-cumulative basis. No dividends had been declared through December 31, 2022.

 

Following the Effective Time of the Merger, the Company sold 33,147,192 shares of common stock pursuant to a private placement offering at a purchase price of $2.00 per share for aggregate gross proceeds of $11.5 million. The Company incurred issuance costs of $2.1 million, which were offset against the proceeds from this offering and are recorded in the accompanying consolidated financial statements for the year ended December 31, 2021.

 

On December 30, 2022, Guerrilla RF, Inc. the Company completed the initial closing of a private placement of up to $10.0 million in aggregate gross proceeds (the “2022/23 Offering”) as it entered into a Unit Purchase Agreement (the “Unit Purchase Agreement”) with investors (the “Purchasers”) pursuant to which the Company sold 3,882,340 units (the “Units”), each Unit consisting of one share of the Company’s common stock and one warrant to purchase one-half of a share of common stock (the “Warrant”).  The purchase price of each Unit was $1.30 per Unit, resulting in gross proceeds at this initial closing of approximately $5.0 million before the deduction of estimated Offering expenses of approximately $700,200.  Pursuant to the terms of the 2022/23 Offering, the Company continued to accept subscriptions for Units and had additional closings through February 28, 2023. 

 

 

Each full Warrant has an exercise price of $2.00 per whole share of common stock, subject to adjustment, and is exercisable for a period of five years beginning six (6) months from the date of the final closing of the 2022/23 Offering. 

 

In connection with the 2022/23 Offering, the Company also entered into a registration rights agreement (the “2022/23 Registration Rights Agreement”) with the Purchasers, pursuant to which the Company is required to prepare and file a registration statement with the Securities and Exchange Commission (the “SEC”) covering the resale of (i) the shares of common stock issued to the Purchasers in the 2022/23 Offering, and (ii) the shares of common stock issuable upon exercise of the Warrants (the “Warrant Shares”) within 30 days following the final closing of the 2022/23 Offering.  The Company is required to use its reasonable best efforts to cause the registration statement to be declared effective no later than 120 days following the final closing of the 2022/23 Offering.

 

Laidlaw & Company (UK), Ltd. served as the exclusive placement agent and GP Nurmenkari, Inc. served as a selected dealer for the 2022/23 Offering (collectively, the “Placement Agents”).  In addition to an aggregate cash fee of approximately $504,704, representing 10% of the gross proceeds from the initial closing, the Placement Agents will receive warrants (the “Placement Agent Warrants”) to purchase 582,351 shares of Common Stock (the “Placement Agent Warrant Shares”).  The Placement Agent Warrants are exercisable for a period of five years and have an exercise price of $1.30 per share.

 

The aforementioned Units and Warrants have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), but were offered and sold pursuant to an exemption from registration provided by Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder.

 

Common Stock Warrants

 

In October and November 2021, the Company issued warrants to nonemployees to purchase 183,100 and 148,480 shares of common stock, respectively, as payment for services related to the private placement and the Merger.  The warrants have an exercise price of $2.00 per share and are immediately exercisable and expire in October and November 2026, respectively.


The Company determined the warrants to be equity-classified awards and recorded them as issuance costs related to the sale of common stock associated with the private placement and Merger (see Note 1).  As mentioned above, on December 30, 2022, the Company completed the initial closing of its 2022/23 Offering.  Each Unit sold in the 2022/23 Offering includes one warrant to purchase one-half of a share of common stock.  Thus, as of December 31, 2022, Units sold in the 2022/23 Offering include warrants to purchase 2,523,521 shares, which warrants will be issued upon the final closing of the 2022/23 Offering.  The 2,523,521 Warrant Shares comprise 1,941,170 Purchaser Warrant Shares and 582,351 Placement Agent Warrant Shares, each exercisable for a period of five years beginning six months following the final closing of the 2022/23 Offering.

 

Preferred Stock

 

The Company’s Board of Directors is authorized, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series, and to fix the designation, powers, preferences, and rights of the shares of each series.

 

Prior to the Merger Guerrilla RF had utilized convertible preferred share issuances, convertible debt issuances, and convertible warrants from private investors to fund its business operations and growth. No dividend was payable on shares of Guerrilla RF common stock or its classes of preferred stock.  At the closing of the Merger, all Guerrilla RF preferred stock was converted into common shares of the Company.  There is no issued or outstanding preferred stock as of December 31, 2022 and 2021.

 

7. Share-Based Compensation 

 

In 2014, the Company adopted the Long‐Term Stock Incentive Plan (the “2014 Plan”), with 568,000 shares of common stock authorized for issuance under the 2014 Plan.  Subsequently, stockholders approved an increase in the number of shares available under the 2014 Plan to 1,260,000 shares.  Exercise prices range from $0.70 to $1.57 per share, depending on the date of the award.  No further awards may be made under the 2014 Plan.

 

In 2021, the Board adopted the Equity Incentive Plan (the “2021 Plan”), which authorizes the award of stock options, restricted stock awards, stock appreciation rights, restricted stock units (“RSUs”), performance awards, cash awards, and stock bonus awards.  The Company initially reserved 222,991 shares of common stock, plus any reserved shares not issued or subject to outstanding grants under the 2014 Plan on the effective date of the 2021 Plan, for issuance pursuant to awards granted under the 2021 Plan.  The number of shares reserved for issuance under the 2021 Plan will increase automatically on January 1 each year until 2031 by the number of shares equal to the lesser of 5% of the total number of outstanding shares of our common stock as of the immediately preceding December 31, or a number as may be determined by our Board.

 

The general purpose of the 2014 Plan and the 2021 Plan is to allow the Company to attract and motivate key employees and directors to align their interests with those of the Company’s shareholders.

 

Stock Awards

 

On January 1, 2022, the Compensation Committee of the Board awarded 75,000 shares of common stock (valued at $2.00 per share) to the non-employee directors for services provided in 2021.  These common stock awards vested immediately.

 

 

Stock Option Awards

 

The Company measures the fair value of each option award on the date of grant using the Black‐Scholes option-pricing model, which takes into account inputs such as the exercise price, the value of the underlying ordinary shares at the grant date, expected term, expected volatility, risk-free interest rate, and dividend yield. The fair value of each grant of options was determined using the methods and assumptions discussed below:

 

The expected term of employee options is determined using the “simplified” method, as prescribed in the SEC’s Staff Accounting Bulletin (SAB) No. 107, whereby the expected life equals the arithmetic average of the vesting term and the original contractual term of the option due to the Company’s lack of sufficient historical data.

 

The expected volatility is based on the historical volatility of the publicly traded common stock of a peer group of companies.

 

The risk-free interest rate is based on the interest rate payable on U.S. Treasury securities in effect at the time of grant for a period that is commensurate with the assumed expected term.

 

The expected dividend yield is zero because the Company has not historically paid and does not expect to pay a dividend on its common stock for the foreseeable future.

 

For the years ended December 31, 2022 and 2021, the grant date fair value of all option grants was estimated at the time of grant using the Black-Scholes option-pricing model using the following weighted-average assumptions:

   

2022

   

2021

 

Expected term (in years)

   

6.25

     

6.25

 

Expected volatility

   

52

%

   

67

%

Risk-free rate

   

3.96

%

   

0.11

%

Dividend rate

   

     

 

 

The weighted average grant date fair value of stock option awards granted was $1.30 and $0.97 during the years ended December 31, 2022, and 2021, respectively.

 

The value of stock options is recognized as compensation expense by the straight-line method over the vesting period.  Unrecognized compensation costs related to non‐vested options at December 31, 2022 amounted to$496,659, which are expected to be recognized over an average of approximately three years.

 

Stock option activity by share is summarized as follows for the years ended December 31, 2022 and 2021:

   

Number of Shares

   

Weighted-Average Exercise Price Per Option

   

Weighted- Average Remaining Contractual Life (in years)

 

Shares underlying outstanding awards at December 31, 2020

   

3,209,141

   

$

0.67

     

3.65

 

Granted

   

82,716

     

0.97

         

Exercised

   

(110,975

)

   

0.36

         

Shares underlying outstanding awards at December 31, 2021

   

3,180,882

     

0.38

     

5.30

 

Granted

   

472,000

     

1.30

         

Exercised

   

(12,702

)

   

0.41

         

Forfeited

   

(32,862

)

   

0.95

         

Shares underlying outstanding awards at December 31, 2022

   

3,607,318

   

$

0.59

     

4.85

 

Exercisable options at December 31, 2022

   

2,905,460

   

$

0.37

     

4.32

 

 

Each outstanding unexercised stock option at the closing date of the Merger ( October 22, 2021) was converted into the right to purchase approximately 2.95 shares of the Company's common stock.  Pursuant to the Merger Agreement, options to purchase 1,065,067 shares of Guerrilla RF’s common stock issued and outstanding immediately prior to the closing of the Merger under the 2014 Plan were assumed and converted into options to purchase 3,146,366 shares of the Company's common stock.  In conjunction with the modification of the number of shares issuable under the options, the exercise price of the options was also reduced by a corresponding 2.95 factor.

 

In April 2022, the Compensation Committee of the Board granted 248,500 stock options to new employees at an exercise price of $2.00 per share.  These option awards vest equally over four years (25% per year) on the anniversary of the date the recipient started working for the Company.

 

In September 2022, the Compensation Committee of the Board granted 93,500 stock options to new employees at multiple exercise prices between $2.00 and $4.15 per share.  These option awards vest equally over four years (25% per year) on the anniversary of the date the recipient started working for the Company.

 

The number of options exercised during the year ended December 31, 2022 was 12,702.  The aggregate intrinsic value of outstanding options exercisable as of December 31, 2022, was $3.3 million.  As of December 31, 2022, stock-based compensation for unvested options granted of $0.5 million will be recognized over a remaining weighted-average requisite service period of 2.3 years.

 

 

Restricted Stock Unit (RSU) Awards

 

In the year ended December 31, 2022, the Compensation Committee of the Board granted 873,820 RSUs (net of cancellations/forfeitures) to various employees and directors.  The RSU awards made to non-employees (150,000, net of cancellations/forfeitures) vest 100% on the earliest of (i) June 2, 2023, subject to the recipient's continued service to the Company, (ii) the recipient's death, or (iii) the recipient's disability. The RSUs awarded to employees (723,820, net of cancellations/forfeitures) vest over three equal annual installments from the date of the grant.  The RSUs awarded are subject to the recipient’s continued service through the applicable vesting date and the shares not vested are forfeited upon separation from or discontinuation of services to the Company.  The share-based compensation expense to be recognized for these RSUs over the remaining vesting period subsequent to December 31, 2022 is approximately $1.1 million.

 

The employee stock option and RSU grants during the year ended December 31, 2022 were issued from the 2021 Plan.  The fair value of each RSU was estimated on the date of grant, based on the weighted average price of the Company's stock reduced by the present value of the expected dividend stream during the vesting period using the risk-free interest rate.  The Company will issue new shares of common stock to satisfy RSUs upon vesting.  The Company did not make any RSU grants in 2021.  The following table summarizes the RSU activity and weighted averages.

 

The following table summarizes RSU activity:

   

2022

 
   

Number of RSUs

   

Weighted Average Grant Date Fair Value

 

Outstanding at December 31, 2021

   

-

   

$

-

 

Granted

   

903,120

     

1.79

 

Vested

   

-

     

-

 

Canceled/Forfeited

   

(29,300

)

   

2.00

 

Outstanding at December 31, 2022

   

873,820

   

$

1.78

 

 

Pursuant to awards made under the 2014 Plan and the 2021 Plan, the Company recorded stock-based compensation expense in the following expense categories in the consolidated statements of operations for the years ended December 31, 2022 and 2021:

   

2022

   

2021

 

Direct product costs

 

$

21,088

   

$

-

 

Research and development

 

$

181,792

   

$

-

 

Sales and marketing

 

$

108,318

   

$

-

 

General and administrative

 

$

332,372

   

$

176,046

 
   

$

643,570

   

$

176,046

 

 

No income tax benefits have been recognized in the consolidated statements of operations for stock-based compensation arrangements, and no stock-based compensation costs have been capitalized as property and equipment through December 31, 2022.

 

 

8. Commitments and Contingencies

 

Lease Commitments

 

As of January 1, 2022, the Company adopted ASC Topic 842 and selected the transition alternative method with no comparative period adjustment.  The practical expedients elected were no reassessment of lease classification, no re-evaluation of embedded leases, no reassessment of initial direct costs, and short-term lease exemption.  On January 1, 2022, the Company recorded a finance lease asset and liability of $2.6 million and an operating right-of-use asset and liability of $0.3 million. 

 

The Company determines whether an arrangement is an operating lease or financing lease at inception.  Lease assets and obligations are recognized at the lease commencement date based on the present value of lease payments over the term of the lease.  The Company generally uses its incremental borrowing rate, which is based on information available at the lease commencement date, to determine the present value of lease payments.

 

The Company has entered into leases primarily for real estate and equipment used in research and development.  Operating lease expense is recognized in continuing operations by amortizing the amount recorded as an asset on a straight-line basis over the lease term.  Financing lease expense is comprised of both interest expense, which will be recognized using the effective interest method, and amortization of the right-of-use assets.  These expenses are presented consistently with other interest expense and amortization or depreciation of similar assets.  In determining lease asset values, the Company considers fixed and variable payment terms, prepayments, incentives, and options to extend, terminate or purchase.  Renewal, termination, or purchase options affect the lease term used for determining lease asset value only if the option is reasonably certain to be exercised.

 

Balance sheet information related to right-of-use assets and liabilities is as follows:

 

Balance Sheet Location

 

December 31, 2022

 

Operating Leases:

         

Operating lease right-of-use assets

Operating lease right-of-use assets

 

$

209,669

 
           

Current portion of operating lease liabilities

Operating lease, current portion

   

139,794

 

Noncurrent portion of operating lease liabilities

Operating lease

   

71,714

 

Total operating lease liabilities

 

$

211,508

 
           

Finance Leases:

         

Finance lease right-of-use assets

Property, plant, and equipment

 

$

4,124,093

 
           

Current portion of finance lease liabilities

Finance lease, current portion

   

1,078,506

 

Noncurrent portion of finance lease liabilities

Finance lease

   

2,984,618

 

Total finance lease liabilities

 

$

4,063,124

 

 

Lease cost recognized in the consolidated financial statements is summarized as follows:

   

For the Year Ended

December 31, 2022

   

For the Year Ended

December 31, 2022(1)

 

Operating lease cost

 

$

135,842

   

$

131,191

 
                 

Finance lease cost:

               

Amortization of lease assets

   

977,771

     

79,495

 

Interest on lease liabilities

   

251,228

     

21,108

 

Total finance lease costs

 

$

1,228,999

   

$

100,603

 

(1) Represent amounts under ASC 840.

 

Other supplemental information related to leases is summarized as follows:

   

December 31, 2022

 

Weighted average remaining lease term (in years):

       

Operating leases

   

1.48

 

Finance leases

   

3.73

 
         

Weighted average discount rate:

       

Operating leases

   

7.35

%

Finance leases

   

7.05

%

         

Cash paid for amounts included in the measurement of lease liabilities for the year ended December 31, 2022:

       

Operating cash flows from operating leases

 

$

133,637

 

Operating cash flows from finance leases

 

$

251,228

 

Financing cash flows from finance leases

 

$

985,622

 

 

 

The following table summarizes our future minimum payments under contractual obligations for operating and financing liabilities as of December 31, 2022:

   

Payments Due by Period

 
   

2023

   

2024

   

2025

   

2026

   

Thereafter

   

Total

 

Finance leases

 

$

1,329,924

   

$

1,305,620

   

$

984,853

   

$

902,927

   

$

116,018

   

$

4,639,342

 

Less interest

   

251,418

     

176,040

     

104,265

     

42,185

     

2310

     

576,218

 

Finance lease liabilities

 

$

1,078,506

   

$

1,129,580

   

$

880,588

   

$

860,742

   

$

113,708

   

$

4,063,124

 
                                                 

Operating leases

 

$

150,687

   

$

73,193

   

$

-

   

$

-

   

$

-

   

$

223,880

 

Less present value adjustment

   

10,893

     

1,479

     

-

     

-

     

-

     

12,372

 

Operating lease liabilities

 

$

139,794

   

$

71,714

   

$

-

   

$

-

   

$

-

   

$

211,508

 

 

The Company leases its former headquarters office facilities in Greensboro, North Carolina under a lease agreement, which expires in June 2024.  The lease agreement allows for early cancellation, subject to payment of an early cancellation penalty.  Under the lease agreement, the Company is responsible for certain insurance and maintenance expenses.  In addition, the lease agreement contains scheduled rent increases.  The related rent expense for the lease is calculated on a straight-line basis according to the rental terms of the lease.

 

New Headquarters Capital Addition Financing

 

In July 2021, the Company entered into a lease agreement for new headquarters (also in Greensboro, North Carolina), with a lease term of ten (10) years and two months from the date the Company commences occupancy, which occurred in the first quarter of 2023.  Under the lease agreement, the Company is responsible for certain insurance and maintenance expenses, which are not part of the minimum lease payments.  In addition, the lease agreement contains scheduled rent increases.  Upon taking control of the building, the related rent expense for the lease will be calculated on a straight-line basis according to the lease's rental terms.  The Company will commence remitting scheduled lease payments in the second quarter of 2023.  The Company anticipates an annual lease expense of approximately $1.1 million over the term of the lease and lease expense recognition will commence in the first quarter of 2023.  The initial lease payment will be made in the second quarter of 2023.

 

In conjunction with the Company's planned move into expanded office facilities in early 2023, which will become the Company's new headquarters, the Company entered into a lease financing arrangement related to furniture for the new office facilities in April 2022.  The total cost of the furniture financed was $1.1 million, which included tax, freight, interim storage, and installation labor.  The Company was responsible for paying interest-only payments to the financing company related to the furniture procurement order (interest on principal of $496 thousand) placed in April 2022 prior to the first scheduled principal financing payment, which occurred in August 2022 ($246 thousand).  The Company made interest-only payments to the financing company related to the furniture procurement order through August 2022 in the amount of $17 thousand.  Subsequent to August 2022 through December 31, 2022, the Company has paid $96 thousand in principal and $14 thousand in interest.  The total scheduled principal and interest payments to be made after December 31, 2022 are $692 thousand.

 

The Company entered into a lease agreement in July 2021 for its new headquarters.  The new headquarters were renovated in accordance with plans agreed upon with the landlord, and the Company took possession of the building in the first quarter 2023 when all improvements and renovations (the "new building asset additions") were substantially complete.  Initially, the Company anticipated the new building asset additions being completed and taking possession in September 2022; however, the landlord, as the sole improvement and renovation contractor, experienced significant construction delays.  In August 2022, the Company reached an agreement with the landlord over the timing of the payments for the new building asset additions in light of the significant construction delays.  The Company anticipates the total cost of the new building asset additions will be approximately $7.5 million, with the Company being responsible for the balance in excess of the landlord's $3.5 million allowance (the "excess construction costs") plus deferral fees and interest.

 

As part of the aforementioned August 2022 lease amendment, the Company made the landlord an initial payment of $1.3 million towards the excess construction costs and related financing costs.  The August 2022 lease amendment included new financing terms for the excess construction costs, which include a deferral fee (2% per annum) and interest (18% per annum).  Thus, the Company will pay the landlord a 2% deferral fee to be applied to all current and future excess construction costs as invoiced by the landlord.  The Company will also pay 18% interest on all such current and future excess construction costs and deferral fees from the date the landlord invoices them until the Company remits payment.  The initial payment of $1.3 million towards the excess construction costs was applied first to accrued interest, then to the deferral fee, and then to advanced rent payments.  The Company was not required to make any additional payments until after the Company completed an additional capital raise, but no later than December 15, 2022 (and up to December 31, 2022 at the landlord's discretion).  At that time, the Company was required to pay the landlord, in full, all unpaid excess construction costs, deferral fees, and interest then due (the "Capital Raise Payment").  After the Capital Raise Payment, the Company must resume making monthly invoiced payments related to the excess construction costs, including deferral fees and interest.  The Company had the initial closing of its capital raise on December 30, 2022.  The Company has recorded the advanced rent amounts paid and payable to the landlord as long-term prepaid expenses and other on the consolidated balance sheets as of December 31, 2022.  These amounts will be reclassified to the operating lease right-of-use asset upon lease commencement in the first quarter of 2023.  The Company remitted the Capital Raise Payment to the landlord on January 3, 2023 for $2.5 million.

 

Legal

 

In the ordinary course of business, the Company may become involved in legal disputes.  In the opinion of management, any potential liabilities resulting from any disputes would not have a material adverse effect on the Company’s consolidated financial statements.  As a result, no liability related to any such disputes has been recorded at December 31, 2022 or 2021.

 

 

Indemnification Agreements

 

From time to time, in the ordinary course of business, the Company may indemnify other parties when it enters into contractual relationships, including members of the Board of Directors, employees, customers, lessors, lenders, and parties to other transactions with the Company.  In addition, the Company may agree to hold other parties harmless against specific losses, such as those that could arise from a breach of representation, covenant, or third-party infringement claims. It may not be possible to determine the maximum potential amount of liability under such indemnification agreements due to the unique facts and circumstances likely to be involved in each particular claim and indemnification provision.  Management believes any liability arising from these agreements will not be material to the consolidated financial statements.  As a result, no liability for these agreements has been recorded at December 31, 2022 or 2021.

 

Employment Agreement

 

The Company has entered into an employment agreement with one executive.  This employment agreement was entered into effective as of January 1, 2020.  The Company desired the assurance of the executive's continued association and services to retain the executive's experience, skills, abilities, background, and knowledge. The employment is at-will, and the Company may terminate the employment relationship at any time, with or without cause, and with or without notice.  The terms of the agreement stipulate compensation, benefits, specific restrictive covenants, and Company obligations upon termination of the employment agreement, including severance pay calculated as twelve monthly payments of the executive's monthly base salary.

 

9. Income Taxes

 

The Company did not have any income tax expense for the years ended December 31, 2022 or 2021.

 

The provision for income taxes for the years ended December 31, 2022 and 2021 differs from the amount that would be provided by applying the statutory U.S. federal income tax rate of 21% to pre-tax income primarily due to a valuation allowance.  The accounting estimates used to compute the provision for income taxes may change as new events occur, more experience is obtained, additional information becomes known, or the tax environment changes.

 

In assessing the need for a valuation allowance, management must determine that there will be sufficient taxable income to realize deferred tax assets.  Based upon the historical and anticipated future losses, management has determined that the deferred tax assets do not meet the more likely than not threshold for realizability.  Accordingly, a full valuation allowance has been recorded against the Company’s net deferred tax assets as of December 31, 2022 and December 31, 2021.

 

On August 9, 2022, the U.S. Government enacted the U.S. CHIPS and Science Act (“CHIPS Act”).  The CHIPS Act creates a 25% investment tax credit for certain investments in domestic semiconductor manufacturing.  The credit is provided for qualifying property, which is placed in service after December 31, 2022, and any impact to the Company would start in fiscal 2023.  On August 16, 2022, the U.S. Government enacted the Inflation Reduction Act.  The Inflation Reduction Act introduces a new 15% corporate minimum tax, based on adjusted financial statement income of certain large corporations.  Applicable corporations would be allowed to claim a credit for the minimum tax paid against regular tax in future years.  The Inflation Reduction Act also includes an excise tax that would impose a 1% surcharge on stock repurchases.  This excise tax is effective January 1, 2023.  The Company is currently evaluating the effect the CHIPS Act and the Inflation Reduction Act will have on its consolidated financial statements.  At present, the Company does not expect that any of the provisions included in the two aforementioned pieces of legislation will result in a material impact to the Company’s deferred tax assets, liabilities, or income taxes payable.

 

Deferred tax assets and liabilities are determined based on the differences between the consolidated financial statement carrying amounts and tax bases of assets and liabilities using enacted tax rates in effect for years in which differences are expected to reverse.

 

Significant components of the Company's deferred tax assets for federal income taxes consisted of the following:

   

2022

   

2021

 

Noncurrent deferred income tax asset arising from:

               
                 

Accounts payable

 

$

461,253

   

$

272,585

 

Property, plant, and equipment

   

39,598

     

11,090

 

Equity-based compensation

   

112,336

     

65,127

 

Contribution carryforward

   

5,856

     

4,860

 

NOL carryforward

   

3,994,815

     

3,452,349

 

NEL carryforward

   

239,315

     

324,685

 

R&D credit

   

626,347

     

365,668

 

Operating lease liability

   

48,594

     

-

 

Capitalized research and development expense

   

1,639,623

     

-

 

Total deferred tax assets

   

7,167,737

     

4,496,364

 
                 

Noncurrent deferred income tax liability arising from:

               

Trade receivables and prepaid expenses

   

(374,517

)

   

(655,804

)

Operating lease ROU asset

   

(48,171

)

   

-

 

Total deferred income tax liabilities

   

(422,688

)

   

(655,804

)

                 

Net noncurrent deferred income tax asset

   

6,745,049

     

3,840,560

 
                 

Valuation allowance

   

(6,745,049

)

   

(3,840,560

)

                 

Net

 

$

-

   

$

-

 

 

In assessing the need for a valuation allowance, management must determine that there will be sufficient taxable income to realize deferred tax assets. Based upon the historical and anticipated future losses, management has determined that the deferred tax assets do not meet the more likely than not threshold for realizability. Accordingly, a full valuation allowance has been recorded against the Company’s net deferred tax assets as of December 31, 2022, and 2021.

 

 

The Company does not have unrecognized tax benefits as of December 31, 2022, or 2021.  The Company recognizes interest and penalties accrued on any unrecognized tax benefits as a component of income tax expense.

 

The Company had net operating loss carryforwards (“NOL”) for federal and state income tax purposes at December 31, 2022, and December 31, 2021 of approximately:

 

   

December 31,

 

Combined NOL Carryforwards:

 

2022

   

2021

 

Federal

 

$

19,022,927

   

$

16,439,757

 

State

 

$

9,836,072

   

$

16,439,757

 

 

The net operating loss carryforwards generated before 2018 begin expiring in 2033 for federal and 2030 for state income tax purposes.  Federal and state net operating losses generated in 2018 and into the future now have an indefinite life.

 

   

December 31,

 

Combined Credit Carryforwards:

 

2022

   

2021

 

Federal

 

$

626,347

   

$

365,668

 

 

The credit carryforwards begin expiring in 2038 for federal tax purposes.

 

The NOL and tax credit carryforwards are subject to review and possible adjustment by the Internal Revenue Service and state tax authorities. NOL and tax credit carryforwards may become subject to an annual limitation in the event of certain cumulative changes in the ownership interest of significant stockholders over a three-year period in excess of 50%, as defined under Sections 382 and 383 of the Internal Revenue Code of 1986, as amended (the “Code”), respectively, as well as similar state provisions. This could limit the amount of tax attributes that can be utilized annually to offset future taxable income or tax liabilities. The annual limitation amount is determined based on the Company's value immediately prior to the ownership change. Subsequent ownership changes may further affect the limitation in future years. To date, the Company has not performed an analysis to determine whether or not ownership changes have occurred since inception.

 

A reconciliation of income tax benefit at the statutory federal income tax rate and income taxes as reflected in the consolidated financial statements is as follows:

 

   

December 31,

 

Rate reconciliation:

 

2022

   

2021

 

Federal tax benefit at the statutory rate

   

(21.0

)%

   

(21.0

)%

State tax, net of federal benefit

   

(2.0

)%

   

(2.0

)%

Nondeductible expenses

   

0.8

%

   

1.0

%

Other

   

0.7

%

   

%

Life insurance

   

%

   

5.0

%

Provision to return true up

   

(0.6

)%

   

1.0

%

Research & development credits

   

(2.2

)%

   

(4.0

)%

Change in the valuation allowance

   

24.2

%

   

30.0

%

PPP loan forgiveness

   

%

   

(10.0

)%

Income Tax Expense (Benefit)

   

%

   

%

 

The Company files income tax returns in the U.S. federal jurisdiction and various state jurisdictions. The Company’s tax returns remain subject to examination; carryforward amounts from all tax years remain subject to adjustment.

 

Potential 382 Limitation

 

The Company’s ability to utilize its net operating loss ("NOL") and research and development ("R&D") credit carryforwards may be substantially limited due to ownership changes that could occur in the future, as required by Section 382 of the Code, as well as similar State provisions.  These ownership changes may limit the amount of NOL and R&D credit carryforwards that can be utilized annually to offset future taxable income and tax, respectively.  In general, an “ownership change,” as defined by Section 382 of the Code, results from a transaction or series of transactions over a three-year period resulting in an ownership change of more than 50 percent of a company's outstanding stock by certain stockholders or public groups.

 

If the Company experiences an ownership change, utilization of the NOL or R&D credit carryforwards would be subject to an annual limitation, which is determined by first multiplying the value of the Company’s stock at the time of the ownership change by the applicable long-term, tax-exempt rate, and then could be subject to additional adjustments, as required.  The Section 382 limitation is a limitation on the amount of a new loss corporation’s post-change year taxable income that can be offset by the old loss corporation’s pre-change NOLs.  Any such limitation may result in the expiration of a portion of the Company's NOL or R&D credit carryforwards before utilization.  Any carryforwards that expire prior to utilization as a result of such limitations will be removed from deferred tax assets with a corresponding reduction of the Company's deferred tax valuation allowance.

 

In the third quarter of 2022, the Company's tax advisors completed a study to assess whether one or more ownership changes have occurred since the Company became a loss corporation under the definition of Section 382.  It was determined that the Company has not experienced any “ownership changes” since 2014.  If an "ownership change" occurs in the future, such change may result in the expiration of a portion of the Company's NOL or R&D credit carryforwards before utilization.  As a result of the Section 382 study, no amounts are being considered as an uncertain tax position or disclosed as an unrecognized tax benefit under ASC-740.  The Company has a full deferred tax valuation allowance as of December 31, 2022.

 

At December 31, 2022, the Company had federal NOL and R&D credit carryforwards of approximately $19,022,927 and $626,347, respectively, which are available to offset future taxable income subject to any future “ownership change.”

 

 

10. Related Party Transactions

 

We describe below transactions since January 1, 2019, in which the amounts involved exceeded or will exceed $120,000, and any of our directors, executive officers or holders of more than 5% of Guerrilla RF’s pre-Merger capital stock, or an affiliate or immediate family member thereof, had or will have a direct or indirect material interest. Other than as described below, there have not been transactions to which we have been a party other than compensation arrangements.

 

The following description is historical and has not been adjusted to give effect to the Merger.

 

2019 Notes

 

In March 2019, Guerrilla RF sold in a private placement an aggregate of $1.75 million of term notes at an interest rate of 12% per annum (each, a “2019 Note” and collectively, the “2019 Notes”). Prior to the Merger, and in anticipation of the Merger and the related private placement offering, all of the 2019 Notes were amended to cause the principal amount to convert to shares of our common stock at $1.70 per share, and at the time of the private placement offering, the principal amounts owed under the 2019 Notes were converted under those terms, and accrued interest owed under such 2019 Notes was paid. The following table sets forth the principal amount of the 2019 Notes, and the number of shares of our common stock into which they were converted upon the closing of the Merger, sold to our directors, executive officers or holders of more than 5% of Guerrilla RF’s pre-Merger capital stock, or an affiliate or immediate family member thereof.

   

Principal

   

Number of Shares of Common Stock Issued Upon Mandatory

 

Name of Stockholder

 

Amount

   

Conversion

 

AMB Investments, LLC

 

$

575,000

     

338,235

 

Jeanne Pratt

 

$

250,000

     

147,059

 

Samuel W. Funchess

 

$

100,000

     

58,824

 

William H. Pratt

 

$

50,000

     

29,412

 

 

AMB Notes

 

Guerrilla RF previously issued several promissory notes (the “AMB Notes”) to AMB Investments LLC (“AMB Investments”), which holds more than 5% of our outstanding capital stock. Certain of the AMB Notes were originally issued to Al Bodford, and each AMB Note originally issued to Al Bodford was assigned by him to AMB Investments in September 2021. The AMB Notes and their original terms are as follows: (i) Non-Negotiable Note dated March 27, 2017 issued to Al Bodford in the principal amount of $333,333 accruing interest at the rate of 8% per annum; (ii) Non-Negotiable Note dated March 12, 2018 issued to Al Bodford in the principal amount of $1,000,000 accruing interest at the rate of 8% per annum; (iii) Term Note dated March 31, 2019 issued to Al Bodford in the principal amount of $175,000 accruing interest at the rate of 12% per annum (a 2019 Note, discussed above); and (iv) Term Note dated April 15, 2020 issued to AMB Investments in the principal amount of $500,000 accruing interest at the rate of 12% per annum; and, (v) Term Note dated April 2, 2019 issued to CML Microcircuits (USA), Inc. (f/k/a CML Microsystems, Inc.) in the principal amount of $400,000 and assigned to AMB Investments on October 15, 2021 (a 2019 Note discussed above). Prior to the Merger, and in anticipation of the Merger and the private placement offering, all of the AMB Notes were amended to cause the principal amount to convert to shares of our common stock at $1.70 per share, and upon the closing of the private placement offering, the principal amount owed under the AMB Notes was converted under those terms, and accrued interest owed under such AMB Notes was paid.

 

Thompson Note

 

In July 2020, Guerrilla RF issued an unsecured Term Note (the “Thompson Note”) to Greg Thompson, a member of our Board of Directors, in the principal amount of $250,000 accruing interest at the rate of 12% per annum.  Prior to the Merger, and in anticipation of the Merger and the related private placement offering, the Thompson Note was amended to cause the principal amount to convert to shares of our common stock at $1.70 per share, and upon the closing of the private placement offering, the principal amount owed under the Thompson Note was converted under those terms, and accrued interest owed thereunder was paid.

 

In July 2021, Mr. Thompson intended to enter into another promissory note with Guerrilla RF in the principal amount of $300,000 accruing interest at the rate of 6% per annum; however, Mr. Thompson decided not to enter into the transaction after he transmitted $300,000 to Guerrilla RF. On September 30, 2021, Guerrilla RF remitted the $300,000 of principal back to Mr. Thompson and accrued interest owed thereunder was paid ($4,842).

 

 

2021 Convertible Debt Financing

 

Between July 15, 2021 and October 1, 2021, Guerrilla RF sold an aggregate of $1,488,600 of convertible promissory notes to ten accredited investors at an interest rate of 6% per annum (each, a “Convertible Note” and collectively, the “Convertible Notes”). The corresponding note purchase agreements provided for the mandatory conversion of the Convertible Notes into shares of the Company’s Common Stock upon the closing of the Merger and the private placement offering at the offering price ($2.00 per share).

 

The following table sets forth the principal amount of the Convertible Notes, and the number of shares of our common stock into which they were converted upon the closing of the Merger, sold to our directors, executive officers or holders of more than 5% of Guerrilla RF’s pre-Merger capital stock, or an affiliate or immediate family member thereof.

Name of Stockholder

 

Principal
Amount

   

Number of Shares of
Common Stock issued
upon Mandatory
Conversion

 

William J. Pratt

 

$

100,000

     

50,000

 

Jeanne Pratt

 

$

100,000

     

50,000

 

William H. Pratt

 

$

100,000

     

50,000

 

 

2021 Promissory Notes to Warrant Holders

 

In August 2021, Guerrilla RF issued promissory notes for an aggregate principal amount of approximately $300,000 to the holders of its outstanding warrants (the “2021 Notes”). The 2021 Notes accrued interest at the rate of 6% per annum until November 30, 2021 and at the rate of 12% per annum thereafter. Immediately prior to the closing of the Merger, the warrants were exercised and the warrant exercise price paid in exchange for the cancelation of the 2021 Notes. The following table sets forth the principal amount of the 2021 Notes.

Name of Stockholder

 

Principal
Amount

 

AMB Investments LLC

 

$

233,332.87

 

David Reich

 

$

50,000

 

Jason Bodford

 

$

16,666

 

 

Participation in the APO and 2022/23 Offerings

 

Certain privately held Guerrilla RF, Inc.'s shareholders, including investors affiliated with certain of our directors and officers, purchased an aggregate of 1,294,000 shares of our common stock in the private placement offering in the fourth quarter of 2021, for an aggregate gross purchase price of $2,588,000. Such purchases were made on the same terms as the shares that were sold to other investors in the private placement offering and not pursuant to any pre-existing contractual rights or obligations.

 

Certain existing Guerrilla RF, Inc. shareholders, including investors affiliated with certain of our directors and officers, purchased an aggregate of 80,000 Units in the fourth quarter of 2022 in conjunction with the initial closing of the Company's private placement on December 30, 2022. 

 

Policies and Procedures for Related Party Transactions

 

The Audit Committee of our Board of Directors adopted a charter in the fourth quarter of 2021, which requires that any transaction with a related person and any other potential conflict of interest situation must be reviewed, approved, and monitored by our Audit Committee.

 

11. Employee Benefit Plan

 

The Company has a 401(k) plan to provide defined contribution retirement benefits for all eligible employees. Participants may contribute a portion of their compensation to the plan, subject to the limitations under the Internal Revenue Code. The Company’s contributions to the plan are at the discretion of Executive Management with Board of Directors advisement. The Company made $336,383 and $208,105 of contributions to the plan in 2022 and 2021, respectively.

 

12. Subsequent Events

 

Subsequent events have been evaluated through the date that the Company approved the consolidated financial statements. The following subsequent events have occurred during the period.

 

Private Placement Offering Completion

 

As described in Note 6, on February 28, 2023, the Company completed a private placement offering, raising gross proceeds of $9.2 million before deduction of estimated offering expenses of approximately $1.1 million.  Of this amount, gross proceeds of $5.0 million were received in an initial closing in late December 2022 and a further $4.2 million in January and February 2023.  A total of 3,216,805 shares of common stock and warrants to purchase 2,090,923 shares of common stock were issued after December 31, 2022 in connection with the subsequent closings held in January and February 2023.

 

New Facility Occupancy

 

The Company took occupancy of its new headquarters office building in February 2023.  As of December 31, 2022, the Company owed the new landlord $2.5 million related to agreed-upon excess construction costs, deferral fees, and interest for the new facility as construction-in-progress.  The Company remitted payment to the landlord for these costs in January 2023.  The Company anticipates at least another $0.7 million of excess construction costs and related interest and deferral fees for which it will be responsible, and they will become due in the first half of 2023.

 

F-24


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