10-K 1 e1295_10k.htm FORM 10-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

Annual Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934:
  For the fiscal year ended:  December 31, 2018
   
Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934:
  For the transition period from: 

 

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

 

Michigan   333-209131   20-4998896
(State or other jurisdiction of
incorporation or organization)
  (Commission File No.)   (I.R.S. Employer Identification
No.)

 

3101 Grand Oak Drive

Lansing, MI 48911 

(Address of principal executive offices) (zip code)

 

(517) 703-1110

(Issuer Telephone number)

 

Securities registered under Section 12(b) of the Act:   None.

 

Securities registered under Section 12(g) of the Act:   None.

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐  No ☒

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act.    Yes ☐  No ☒

 

Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes ☒  No ☐

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).   Yes ☒  No ☐ 

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  Yes ☒  No ☐

 

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

 

Indicate by check mark whether the registrant is a large accelerated filer, and accelerated filer, a non-accelerated filer, or a smaller reporting company, and whether the registrant is an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. 

 

Large accelerated filer   ☐ Accelerated filer   ☐
Non-accelerated filer  ☐ Smaller reporting company   ☒

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒

 

As of June 30, 2018, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was approximately $17,081,528, based on the price at which the common equity was last sold (i.e., $8.00 per share).

 

The number of shares outstanding of the registrant’s common stock, no par value per share, as of April 1, 2019 was 3,811,518. 

 

 

 

 

 

 
 

 

TABLE OF CONTENTS

 

    Page
Part I  
Item 1 Business 2
Item 1A Risk Factors 12
Item 1B Unresolved Staff Comments 23
Item 2 Properties 23
Item 3 Legal Proceedings 23
Item 4 Mine Safety Disclosures 23
   
Part II  
Item 5 Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 24
Item 6 Selected Financial Data 27
Item 7 Management’s Discussion and Analysis of Financial Condition and Results of Operations 27
Item 7A Quantitative and Qualitative Disclosures about Market Risk 35
Item 8 Financial Statements 36
     
  Report of Independent Registered Public Accounting Firm 37
  Consolidated Balance Sheets 39
  Consolidated Statements of Operations 40
  Consolidated Statement of Changes in Stockholders’ Equity (Deficit) 41
  Consolidated Statements of Cash Flows 42
  Notes to Consolidated Financial Statements 43
     
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 62
Item 9A Controls and Procedures 62
Item 9B Other Information 63
   
Part III  
Item 10 Directors, Executive Officers and Corporate Governance 63
Item 11 Executive Compensation 71
Item 12 Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 74
Item 13 Certain Relationships and Related Transactions, and Director Independence 77
Item 14 Principal Accounting Fees and Services 78
     
Part IV  
Item 15 Exhibits and Financial Statement Schedules 79
     
Signatures 81
   

 

 

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PART I

  

Note Regarding Forward-Looking Statements:

 

The information in this Annual Report on Form 10-K contains “forward-looking statements” and information 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”) relating to XG Sciences, Inc., a Michigan corporation and its subsidiary, XG Sciences IP, LLC, a Michigan corporation (collectively referred to as “we”, “us”, “our”, “XG Sciences”, “XGS”, or the “Company”), which are subject to the “safe harbor” created by those sections. These forward-looking statements include, but are not limited to, statements concerning our strategy, future operations, future financial position, future revenues, projected costs, prospects and plans and objectives of management. The words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,” “projects,” “will,” “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements.

 

These forward-looking statements involve known and unknown risks and uncertainties that could cause our actual results, performance or achievements to differ materially from those expressed or implied by the forward-looking statements, including, without limitation, the risks set forth on beginning on page 13 under the section entitled “Risk Factors” herein.

 

ITEM 1. BUSINESS

 

XG Sciences was formed in May 2006 for the purpose of commercializing certain technology to produce graphene nanoplatelets. First isolated and characterized in 2004, graphene is a single layer of carbon atoms configured in an atomic-scale honeycomb lattice. Among many noted properties, monolayer graphene is harder than diamonds, lighter than steel but significantly stronger, and conducts electricity better than copper. Graphene nanoplatelets are particles consisting of multiple layers of graphene. Graphene nanoplatelets have unique capabilities for energy storage, thermal conductivity, electrical conductivity, barrier properties, lubricity and the ability to impart physical property improvements when incorporated into plastics, metals or other matrices.

 

We believe the unique properties of graphene and graphene nanoplatelets will enable numerous new product applications and the market for such products will quickly grow to be a significant market opportunity. Our business model is to design, manufacture and sell advanced materials we call xGnP® graphene nanoplatelets and value-added products incorporating xGnP® nanoplatelets. We currently have hundreds of customers trialing our products for numerous applications, including, but not limited to lithium ion batteries, lead acid batteries, thermally conductive adhesives, composites, thermal management and heat transfer, inks and coatings, printed electronics, construction materials, cement, and in a range of other industrial uses. We believe our proprietary processes have enabled us to be a low-cost producer of high quality, graphene nanoplatelets and value-added integrated products containing graphene nanoplatelets and that we are well positioned to address a wide range of end-use applications. 

  

Our Customers

 

We sell products to customers around the world and have sold materials to over 1,300 customers in 47 countries since 2008. Some of these customers are research organizations and some are commercial organizations. Our customers have included well-known automotive and OEM suppliers around the world (Ford, Johnson Controls, Magna, Honda Engineering) world-scale lithium ion battery manufacturers in the US, South Korea and China (Samsung SDI, LG Chemical, Lishen, A123) and diverse specialty material companies (3M, BASF, Henkel, Dow Chemical, DuPont) as well as leading research centers such as Lawrence Livermore National Laboratory and Oakridge National Laboratory. We have also licensed some of our base manufacturing technology to other companies. Our  licensees include POSCO, the fifth largest steel manufacturer in the world by 2018 tonnage output, and Cabot Corporation (“Cabot”), a leading global specialty chemicals and performance materials company. These licensees further extend our technology through their customer networks. As can be seen in the below bar chart, the cumulative number of customers has steadily grown over the last ten years.

 

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Cumulative Customers, by Year

  

 

We believe average order size is an indicator of commercial traction. Many of our customers are still ordering in quantities consistent with their development and engineering qualification work. As can be seen in the chart below our quarterly average order size was relatively modest until the second half 2017, when a number of customers reached commercial status with different product applications. The data below represents orders shipped in the respective quarter and excludes “no charge” orders targeted mainly for R&D purposes. The data shows that the average order size has increased steadily over the last two years, and we believe that it will continue to increase as more customers commercialize products using our materials. During the three months ended December 31, 2018 the average order size was $15,024, an increase of 3.3% from $14,541 during the three months ended December 31, 2017. During the 3 months ending December 31, 2018 we shipped 14.0 MT of product, an increase of 44% over the 3 months ended December 31, 2017. 10.9 MT of dry powder and 3.1MT of integrated product shipped during the 3 months ended December 31, 2018. For the full year 2018 for all products our customer shipments were 59.9 MT compared to 19.3 MT for the full year 2017, an increase of 210%, further reflecting an adoption of our products in range of customers and end-markets. 

 

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Our Products

 

XG Sciences is a manufacturer of graphene nanoplatelets marketed under the brand xGnP® and value-added products that contain graphene nanoplatelets. The term “graphene” is used widely in the literature and the popular press to cover a variety of specific forms of the material. We generally think about two broad classes of graphene materials:

1.One-atom thick films of carbon commonly referred to as monolayer graphene, manufactured typically from gases by assembling molecules to form relatively large, transparent sheets of material. These materials have been characterized by their performance attributes that differentiate them from other advanced materials and that may include: 200 times stronger than steel, flexible and able to stretch up to 25% of its original length, optically transparent, more electrically conductive than copper, more thermally conductive than any other known material and atomic-level barrier properties. XG Sciences does not manufacture these films and does not participate in the markets for these films and believes that in general, the markets for these films do not compete with those for graphene nanoplatelets.
2.Ultra-thin particles of carbon that consist of layers of graphene sheets ranging in thickness from a few layers to many layers – that are commonly referred to as graphene nanoplatelets (“GNP” or “GNPs”). Because GNPs are thin and can be manufactured in a range of diameters, they are useful for a wide variety of applications. XG Sciences manufactures GNPs that range in thickness from a few nanometers and up to 10-20 nanometers and with diameters ranging from less than 1 micron and up to 100 microns. The manufacture of these graphene particles is our main area of expertise, and their use in practical applications is the focus of our sales, marketing and development activities.

According to ISO /TS 80004-13:2017, Nanotechnologies – Vocabulary – Part 13: Graphene and two-dimensional (2D) materials, there is a general need to establish a common vocabulary to facilitate global communication for graphene and other related 2D materials. More specifically, ISO posits the following. “More recently, other materials with a structure similar to that of graphene have also shown promising properties including monolayer and few-layer versions of hexagonal boron nitride (hBN), molybdenum disulphide (MoS2), tungsten diselenide (WSe2), silicene and germanene and layered assemblies of mixtures of these materials. These materials have their thickness constrained within the nanoscale or smaller and consist of between one and several layers. These materials are thus termed two-dimensional (2D) materials as they have one dimension at the nanoscale or smaller, with the other two dimensions generally at scales larger than the nanoscale.” ISO further defines graphene as “single layer of carbon atoms with each atom bound to three neighbours (sic) in a honeycomb structure” and graphene nanoplatelets as “consisting of graphene layers” and further as “typically have thickness of between 1 nm to 3 nm and lateral dimensions ranging from approximately 100 nm to 100 µm”.

 

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The well-publicized isolation of characterization of graphene in 2004 at the University of Manchester, has spawned a new class of 2D materials based on layers of carbon atoms arranged in a hexagonal array and each carbon having lone pair electrons. The unique characterization and related performance of this new class of materials is derived from their two-dimensional nature and their composition of sp2 carbon atoms arranged in a hexagonal array. The ability of any new material to be exploited in industrial applications will depend on its fit-for-performance. In the case of graphene nanoplatelets, the fit-for-performance is very much related to their aspect ratio (among other factors) such that the diameter is greater than the thickness and is what differentiates the material from bulk graphite of high crystallinity and purity. It may be worth positing that nanoplatelets consisting of largely basel planes of carbon atoms packed in a hexagonal array, i.e., graphene, may be correctly termed as a graphene nanoplatelets so long as their aspect ratio may be classified as two-dimension and are thus in the form of platelets. Such a definition implies that the thickness is nanoscale – which one may conclude a GNP would meet having a thickness in the range from generally 0.6 nanometers and up to many 10’s of nanometers. XG Sciences has chosen to utilize the definitions as set out by the Carbon Journal editorial team (Carbon, volume 65, pp.1-6) and Fullerex (Bulk Graphene Pricing Report, 2018) which provides classification for the various material types which provide more specific descriptions of commercially available graphene.

Graphene Product Thickness Definitions Based on Thickness

  Number of Layers   Product Description
  1   Graphene (monolayer)
  1-3   Very Few Layer Graphene (vFLG)
  2-5   Few Layer Graphene (FLG)
  2-10   Multilayer Graphene (MLG)
  >10   Graphene Nanoplatelets (GNP)

 

Bulk Materials.

We sell bulk materials under the trademarked brand name of xGnP® graphene nanoplatelets. These materials are produced in various grades, which are analogous to average particle thickness, and average particle diameters. There are three commercial grades (Grades H, M & R), each of which is offered in three standard particle sizes and a fourth, C Grade, which is offered in three standard surface areas. We also have access to other development grades (Grade T, for example), but which are not yet made available commercially. These bulk materials, which normally ship in the form of a dry powder, are especially applicable for use as additives in polymeric or metallic composites, or in coatings or other formulations where particular electrical, thermal or barrier applications are desired by our customers. We also offer our material in the form of dispersions of nanoplatelets in liquids such as water, alcohol, or organic solvents, or mixed into resins or polymers such as epoxies or urethanes. We use two different commercial processes to produce these bulk materials:

Grade H/M/R/T materials are produced through chemical intercalation of natural graphite followed by thermal exfoliation using a proprietary process developed by us. The “grade” designates the thickness and surface characteristics of the material, and each grade is available in various average particle diameters. Surface area, calculated by the Brunauer, Emmet, and Teller (BET) Method, is used as a convenient proxy for thickness, so each grade of products produced through chemical intercalation is designated by its average surface area, which ranges from 50 to 150 m2/g of material. We are able to extend the surface area higher (250 m2/g for T Grade) but are not yet producing these materials commercially. As the market need emerges for few layer graphene, we will consider making these materials available commercially. For example, we introduced a new Grade of xGnP® powders, R-Grade, with improved electrical conductivity targeting use in applications for electrically and thermally conductive ink and composites.
Grade C materials are produced through a high-shear mechanical exfoliation using a proprietary process and equipment that we invented, designed, and constructed. The Grade C materials are smaller particles than those grades produced through chemical exfoliation, and Grade C materials are designated by their BET surface area, which ranges from 300 to 800 m2/g. We are able to produce other surface areas but are not yet making those available commercially.

The following graphic depicts xGnP® graphene nanoplatelets as a function of both layer thickness and aspect ratio (thickness by diameter), two key parameters which will influence their performance in a range of industrial applications. The graphic demonstrates that XG Sciences’ graphene nanoplatelet portfolio encompasses the definition for graphene and grapehene nanoplatelets set forth by ISO and the Carbon Journal editorial team.

 

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XG Sciences’ Graphene Nanoplatelet Product Portfolio and Versus Graphite

 

Composites. These consist of compositions of specially designed xGnP® graphene nanoplatelets formulated in pre-dispersed mixtures that can be easily incorporated in various polymers. Our integrated composites portfolio includes pre-compounded resins derived from a range of thermoplastics as well as master batches of resins and xGnP® nanoplatelets and their combination with resins and fibers for use in various end-use applications that may include industrial, automotive and sporting goods and which have demonstrated efficacy in standard injection molding, compression molding, blow molding and 3-D processes, to name but a few. Our current product portfolio of polymer resins containing various forms of our xGnP® graphene nanoplatelets and in varying concentration and includes: polyurethane (XGPU), polypropylene (XGPP), polyethylene terephthalate (XGPET), vinyl ester (XGVE), polyetherimide (XGPEI) and high-density polyethylene (XGHDPE). Other polymers may be added over time depending on the end-market and customer needs. In addition, we offer various bulk materials with demonstrated efficacy in plastic composites to impart improved physical performance to such matrices, which may be supplied as dry powders or as aqueous or solvent-based dispersions or cakes as described above. We have also targeted use of our graphene nanoplatelets as an additive in cement mixtures, which we believe results in improved barrier resistance, durability, toughness and corrosion protection. Our GNP® Concrete Additive promotes the formation of more uniform and smaller grain structure in cement. The resulting fine-grain and uniform structure provides improvements in flexural and compressive strength. In addition, the embedded graphene nanoplatelets will stop cracks from forming and retard crack propagation, should any cracks form – the combination of which will improve lifetime and durability of cement.

 

Inks and Coatings. These consist of specially-formulated dispersions of xGnP® together with solvents, binders, and other additives to make electrically or thermally conductive products designed for printing or coating and which are showing promise in diverse customer applications such as advanced packaging, electrostatic dissipation and thermal management. We also offer a set of standardized ink formulations suitable for printing. These inks offer the capability to print electrical circuits or antennas and may be suitable for other electrical or thermal applications as well. All of these formulations can be customized for specific customer requirements.

 

Energy Storage Materials. These consist of specialty advanced materials that have been formulated for specific applications in the energy storage segment. Chief among these is our proprietary, specially formulated silicon-graphene composite material (also referred to as “SiG” or “XG SiG®”) for use in lithium-ion battery anodes. XG SiG® targets the never-ending need for higher battery capacity and longer life. In several customer trials, our SiG material has demonstrated the potential to increase battery energy storage capacity by 3-5x what is currently available with conventional lithium ion batteries today. Additionally, we offer various bulk materials for use as conductive additives for cathodes and anodes in lithium-ion batteries, as an additive to anode slurries for lead-carbon batteries, as a component in coatings for current collectors in lithium-ion batteries and we are investigating the use of our materials as part of other battery components.

 

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Thermal Management Materials.  These consist mainly of two types of products, our XG Leaf® sheet products and various thermal interface materials (“TIM”) in the form of custom greases or pastes. XG Leaf® is a family of sheet products ideally suited for use in thermal management in portable electronics, which may include cell phones, tablets and notebook PC’s. As these devices continue to adopt faster electronics, higher data management capabilities, brighter displays with ever increasing definition, they generate more and more heat. Managing that heat is a key requirement for the portable electronics market and our XG Leaf® product line is suited to address the need. These sheets are made using special formulations of xGnP® graphene nanoplatelets as precursors, along with other materials for specific applications. Our custom XG TIM® greases and pastes are also designed to be used in various high temperature environments. Additionally, we offer various bulk materials for use as active components in adhesives, liquids, coatings and plastic composites to impart improved thermal management performance to such matrices.

  

Our Focus Areas

 

We believe we are a “platform play” in advanced materials, because our proprietary processes allow us to produce varying grades of graphene nanoplatelets that can be mapped to a variety of applications in many market segments. However, we are prioritizing our efforts in specific areas and with specific customers that we believe represent opportunities for either relatively near-term revenue or especially large and attractive markets. At this time, we are focused on four key vertical markets: Automotive, Sporting Goods, Packaging and Composites. The following graphic provides examples of target applications within each of the four key verticals where XG Sciences has either commercial sales or is in development with one or more customers.

  

XGS Market/Application Focus Areas

 

 

 

Addressable Markets

 

The markets for our materials are large and growing. As one example, the 2019 North American packaging market for plastic bottles and containers is estimated to be more than $34 billion (Mordor Intelligence). Further, Mordor estimates the 2019 global market for PET water bottles at 543.8 billion units. XG Sciences is engaged in the commercial supply of xGnP® graphene nanoplatelets for use in water bottles manufactured initially in North America and we are expanding our market activities into other geographies. If each water bottle produced in 2019 were to incorporate just 1 gram of xGnP® graphene nanoplates, the total revenue available to XG Sciences may range from $300 to $500 million. 

 

 

 

Commercialization Process

 

Because graphene is a new material, most of our customers are still developing applications that use our products. Commercialization is a process, the exact timing of which is often difficult to predict. It starts with our own internal R&D to validate performance for an identified market or customer-specific need. Our customers then validate the performance of our materials and determine whether our products can be incorporated into their manufacturing processes. This is initially done at pilot production scale levels. Our customers then have to introduce products that incorporate our materials to their own customers to validate performance. After their customers have validated performance, our customers will then move to commercial scale production. Every customer goes through the same process, but will do so at varying speeds, depending on the customer, the product application and the end-use market. Thus, we are not always able to predict when our customers will begin ordering commercial volumes of our materials or predict their expected volumes over time. However, as customers move through the process, we generally receive feedback and gain greater insights regarding their commercialization plans. According to our respective customers, the following are just some examples of where our products are providing value to our customers at levels that are either in commercial production or we believe will warrant their use on a commercial basis: 

 

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In 2018, Callaway Golf Company introduced new dual-core Chrome Soft and Chrome Soft X golf balls incorporating our xGnP® graphene nanoplatelets into the outer core, resulting in a new class of golf ball that enables higher driving speeds, greater distance and increased control, which is allowing Calloway to command a premium price for their golf balls in the marketplace and in 2019 expanded the technology to incorporate our xGnP® into the ERC Soft line of golf balls;
Ford Motor Company for polyurethane based foams for use in over ten under hood components on the Ford F-150 and Mustang going into production this quarter and eventually, other Ford vehicles demonstrating a 17 percent reduction in noise, a 20 percent improvement in mechanical properties and a 30 percent improvement in heat endurance properties, compared with that of the foam used without graphene;

 

Light emitting diode module and product company demonstrated approximately 50% improvement in thermal management capability when compared to existing commercial thermal management products, translating into a 15% improvement in thermal management at the device level;

Lead acid battery manufacturers incorporating our materials in the commercial supply of batteries demonstrating improvements in measured cycle life, capacity and charge acceptance;

U.S. bottling company adopting commercial use of our graphene nanoplatelets in PET water bottles to improve modulus (10% with minimal affect to color and up to 200% with color change), shelf life and energy savings during processing;

Construction company adopting our materials for commercial use after demonstrating a 30% improvement in flexural strength using less than one weight percent of xGnP® in construction material composites;

Plastics composite part manufacturer demonstrating 7-30% improvement in strength and 40% improvement in modulus when used in sheet molding compound; and

Plastic composite parts manufacturer demonstrating 25% increase in tensile strength and 15% improvement in flex modulus for a high-density polyethylene composite, and Plastics manufacturer demonstrating up to 25% increase in tensile modulus, 15% increase in tensile strength and 8x increase in puncture impact for nylon-based thermoplastics.

  

The process of “designing-in” new materials is relatively complex and involves the use of relatively small amounts of the new material in laboratory and engineering development for an extended period of time. Following successful development, customers that incorporate our materials into their products will then order much larger quantities of material to support commercial production. Although our customers are under no obligation to report to us on the usage of our materials, some have indicated that they have introduced or will soon introduce commercial products that use our materials. Thus, while many of our customers are currently purchasing our materials in kilogram (one or two pound) quantities, some are now ordering at multiple ton quantities and we believe many will require tens of tons or even hundreds of tons of material when they commercialize products that incorporate our materials. We also believe that those customers already in production will increase their order volume as demand increases and others will begin to move into commercial volume production as they gain more experience in working with our materials and engage with their customers. For example, in 2017 we shipped 19.3 metric tons of product for various end-use customers. In 2018, we shipped 59.9 metric tons of products comprising 48.3 metric tons of dry powders and approximately 11.6 metric tons of additional product in the form of slurry, cake or other integrated products. This demand profile is further evidence that we are transitioning into higher-volume commercial production.

Expected 2019 Revenue Growth Trend

 

We are tracking the commercial and development status of more than 75 different customer applications using our materials with some customers pursuing multiple applications. As of December 31, 2018, we had nineteen specific customer applications where our materials are incorporated into our customers’ products and such customers are actively promoting or selling these products to their own customers. In addition, we have another eighteen customer applications where our customers have indicated that they expect to begin shipping product incorporating our materials in the next 3 – 6 months, and we have another twenty customer applications where our customers have indicated an intent to commercialize in the next 6 – 9 months. We are also working with numerous additional customers that have not yet indicated an exact date for commercialization, but we believe have the potential to contribute to revenue in 2019. The following graphic demonstrates the trend over the past 8 fiscal quarters as an increasing number of customers indicate their intent to commercialize applications and move into actively selling or promoting products for future sales. We believe that the average order size for these customers will increase throughout 2019 as their demand grows. As a result, we believe we will begin shipping significantly greater quantities of our products, and thus continue scaling revenue in 2019 and beyond. Based on the status of current discussions with customers and their feedback on the performance of our materials in their products, we believe we will be able to recognize approximately $8-10 million of revenue in 2019, although this cannot be assured.

 

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(a) Customer applications where our materials are used in customer products and they are actively promoting or selling them to their customers.

 

(b) Customer applications where our customers are indicating that they expect to begin shipping products incorporating our materials in the next 3-6 months.

 

(c) Customer applications where our customers are indicating an intent to commercialize in the next 6-9 months.

 

Our Intellectual Property

 

Some of our proprietary manufacturing processes were developed at Michigan State University (MSU) and licensed to us in 2006. We license two U.S. patents and one patent application from MSU. On August 8, 2016, we signed an agreement acquiring an exclusive license to Metna’s background IP for use of graphene nanoplatelets as additives to concrete mixtures. For purposes of the agreement, Metna’s background IP relates to the U.S. Patent 8,951,343. Also, on August 8, 2016, we entered into a second agreement for an exclusive license related to all Metna’s background technology and foreground technology, including any jointly-owned foreground technology where the end use is known to be any graphite additive dispersed in concrete mixtures. Over time, our scientists and engineers have made many further discoveries and inventions that are embodied in the form of (as of December 31, 2018): ten additional U.S. patents, thirteen foreign patents, fourteen additional U.S. patent applications, and numerous trade secrets. For each patent application filed in the U.S., we make a determination on the nature and value of the patent. For many of the applications filed in the U.S., additional filings are made in other countries such as the European Union, Japan, South Korea, China, Taiwan or other applicable countries. As of December 31, 2018, we maintained twenty-five international patent applications. These filings and analyses are made on a case-by-case basis. Typically, patents that are defensive in nature are not filed abroad, while those that are protective of active XG Sciences products or applications are filed in relevant countries abroad. Our general IP strategy is to keep as trade secrets those manufacturing processes that are difficult to enforce should they be disclosed and to seek patent coverage for other manufacturing processes, materials derived from those processes, unique combinations of materials and end uses of materials containing graphene nanoplatelets. We believe that the combination of our rights under the MSU license, our patents and patent applications, and our trade secrets create a strong intellectual property position.

 

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Our Manufacturing Capacity

 

We completed the first phase of expansion in our newest 64,000 square-foot facility in the first half of 2018. The expansion has added 90 metric tons of graphene nanoplatelet production capacity, bringing the total capacity of the facility up to approximately 180 metric tons of dry powder. Phase two of the expansion was partially complete by year-end 2018 and resulted in up to ~270 metric tons of total graphene nanoplatelet output capacity at the facility. We expect to complete the last portion of Phase two expansion in the first half of 2019, resulting in up to ~400 metric tons of total graphene nanoplatelet output capacity. Our total graphene nanoplatelet output capacity across both of our manufacturing facilities, as of December 31, 2018, exceeded 200 metric tons per year and will more than double by about mid-year 2019, and reaching up to an approximate 450 metric tons by year-end. The expansions support our mission to continue commercializing the use of graphene in customer products across diverse industries. XG’s increasing capacity will support the growing demand for our products over the next several fiscal quarters. However, additional manufacturing capabilities for certain value-added products and certain bulk materials remain to be developed and may require the acquisition of additional facilities. In particular, the production processes for certain integrated products will require additional capital and may require additional facilities to meet expected future customer demand.

 

Some of the Company’s products are new products that have not yet been fully developed and for which manufacturing operations have not yet been fully scaled. Although we believe we will continue to scale our production capability and revenue rapidly in 2019, we have not yet demonstrated the capability to produce sufficient materials to generate the ongoing revenues necessary to sustain our operations in the long-term. For additional information please see “Risk Factors” herein.

 

Our Lead Investors

 

Since inception and through December 31, 2018, we have raised approximately $49 million of capital through the issuance of equity and equity-linked securities, $4 million through licensing fees and $6 million through the issuance of certain lease and senior debt obligations. Notable investors and licensees in the Company include:

 

Oct 2018 Soulbrain Co. $3 MM equity investment
Dec 2016 The Dow Chemical Co. $10 MM senior credit facility, $5 million drawn

Mar 2014
POSCO $1.2 MM equity investment exercising pre-emptive rights
Jan 2014 Samsung Ventures $3 MM equity investment + Joint Development Program
          2013- Present Aspen Advanced Opportunity Fund & Affiliates $20+ MM in various equity investments
Nov 2011 Cabot Corp $4 MM licensing agreement with royalties
Jun 2011 POSCO $4 MM equity investment + licensing agreement with royalties
Dec 2010 Hanwha Chemical $3 MM equity investment
          2010 ASC XGS, LLC $1.6 MM equity investments

 

Our Competitive Strengths

 

We believe that we are a leader in the emerging global market for graphene nanoplatelets. The following competitive strengths distinguish us in our industry:

 

Our know-how and ability to tailor our products for use in multiple applications. Many of our products and product-development activities target use of our xGnP® graphene nanoplatelets in various matrices to form composite products that are then used by our customers. We have extensive knowledge of how to tailor our products to deliver performance as composite products in various applications and we also have knowledge of how to tailor other components of a composite to adjust the performance of the composite for use in various applications. We also have knowledge of how to tailor our products for a range of other end-use markets and applications that may include: 3-D printing, anti-corrosive coatings, automotive coatings, thermally conductive adhesives, thermal interface materials/compounds, tires, thermal coatings and sporting goods equipment.

 

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The strength of our intellectual property. Because of our focus on manufacturing process development, we believe we have one of the world’s strongest internal knowledge bases in graphene nanoplatelet manufacturing, with most of our proprietary knowledge maintained as trade secrets to avoid the disclosures required by patenting. The twenty-eight US patents and patent applications that we are currently managing (including those under license from MSU and Metna) and thirty-eight international patents and patent applications add value by protecting specific equipment, or high-value end-user product applications. The fact that two global companies have evaluated and licensed our production technology provides independent evidence of our technology’s effectiveness.

 

The breadth of our product offering.  To our knowledge, we have the broadest product offering in our industry. In addition to offering four standard grades of bulk graphene nanoplatelet materials in a range of diameters and surface areas, we offer four different grades of XG Leaf® in multiple thicknesses, two different grades of silicon-graphene composite materials, three standard ink formulations, and optional custom dispersions and formulations of our bulk materials. We also offer an XG TIM® thermal interface material and a newly introduced GNP® Cement Additive product. We also offer polymer resins containing various forms of our xGnP® graphene nanoplatelets and in varying concentration and includes: polyurethane (XGPU), polypropylene (XGPP), polyethylene terephthalate (XGPET), vinyl ester (XGVE), polyetherimide (XGPEI) and high-density polyethylene (XGHDPE). Other polymers may be added over time depending on the end-market and customer needs.

 

The low-cost nature of our manufacturing processes.  We believe our manufacturing processes are among the lowest-cost approaches to the manufacturing graphene nanoplatelets (subject to economies of scale) based on our internal modelling of competitive processes as well as our analysis of alternative technologies.

 

Our corporate partners. Four global corporations (Samsung, POSCO, Soulbrain and Hanwha Chemical) have invested over $14 million in XGS, giving us a significant global reach as well as the ability to leverage the assets of our partners. In addition, The Dow Chemical Company, or Dow, has extended $10 million in senior debt financing, of which we have drawn down $5 million.

 

Our licensees should accelerate our entry into large markets. Cabot Corporation, the largest U.S.-based manufacturer of carbon particles, and POSCO, one of the world’s largest steel producers, have licensed parts of our production technology. We believe these licensees will help us distribute our products and value-added products made with our xGnP® nanoplatelets more rapidly than we could do on our own.

 

The number of development partners that are working with our materials. As of December 31, 2018, we had supplied materials to 294 universities or government laboratories in 41 different countries around the world. These other organizations include Goodrich Corporation, PPG Industries, ExxonMobil Research & Engineering, Toray, Solvay, Honda, Eastman Kodak, Baker Hughes, GM, Rohm and Haas and Sekisui Chemical.

 

The number of commercial customers purchasing and working with our materials. As of December 31, 2018, we have supplied materials to 1,098 commercial companies around the world (in addition to universities and research laboratories) who are assessing their performance and potentially designing them into products. We have more than 75 active development relationships where we are working with end-use customers to design products for commercial use. We believe that these relationships will continue to expand.

 

As a result of these factors, we believe XG Sciences is a leader in the emerging global market for graphene nanoplatelets. Other independent observers have agreed with this assessment. For example, Lux Research, in a January 2019 summary stated “XG Sciences, while still in the red, now has a clear path to profitability; it is a leader in high quality graphene, and clients looking to develop novel graphene-containing products should consider it as a partner.”

 

Self-Underwritten Offering

 

We filed a Registration Statement on Form S-1 (File No. 333-209131) with the SEC on April 11, 2016 which was declared effective by the SEC on April 13, 2016 (as amended, the “Registration Statement”). The Registration Statement registered up to 3,000,000 shares of common stock at a fixed price of $8.00 per share to the general public in a self-underwritten offering (the “Offering” or our “IPO”). Post-Effective Amendment No. 1 to the Registration Statement was declared effective August 26, 2016, Post-Effective Amendment No. 2 was declared effective August 31, 2016, Post-Effective Amendment No. 3 was declared effective January 17, 2017, and Post-Effective Amendments No. 4 and No. 5 were dated April 12, 2017 and were declared effective April 14, 2017. Post-Effective Amendment No. 6 was declared effective June 26, 2018. The Offering will terminate on expiration of the Registration Statement on April 12, 2019 unless all of the securities registered thereunder are sold or the Board decides to terminate such offering prior to such date. Although we are currently selling shares of our common stock in our IPO pursuant to an effective Registration Statement, we have not yet listed any of our capital stock for trading or quotation on any exchanges or the over-the-counter bulletin board.

 

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As of April 1, 2019, the Company sold 2,415,000 shares under the Registration Statement at a price of $8.00 per share for proceeds of $19,320,000.

 

Pursuant to the Certificate of Designation for our Series A Preferred Stock, as amended, all then-outstanding shares of Series A will automatically convert into shares of common stock upon the listing of the Company’s common stock on a Qualified National Exchange (a securities exchange registered with the SEC under Section 6(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), such as the NASDAQ Capital Market or the New York Stock Exchange, or (ii) the quotation of our common stock on the OTCQB or OTCQX marketplaces operated by OTC Markets Group, Inc. (“OTC Markets”), and the act of achieving such listing or quotation is referred to hereafter as a “Public Listing” in this report). As a result, there will only be one class of equity securities outstanding — common stock — after we achieve a Public Listing. Prior to any such listing, the Series A may be voluntarily converted into shares of common stock at the then-current conversion rate (current rate for is 1.875 shares of common for 1 share of Series A).

 

Public Listing

 

In order to achieve a Public Listing, we will have to meet certain initial listing qualifications of the Qualified National Exchange or the OTC Markets on which we are seeking the Public Listing. In addition, we will need to have market makers agree to make a market in our common stock and file a FINRA Form 15c211 with the SEC on our behalf before we can achieve a Public Listing, and we will also need to remain current in our quarterly and annual filings with the SEC. Although we intend to seek a Public Listing in 2019, we cannot make any assurances that our common stock will ever be quoted or traded on Qualified National Exchange or the OTC Markets or that any market for our common stock will develop.

 

Employees

 

As of December 31, 2018, we had 58 full-time employees and 1 part-time employee. 3 of these employees were contract employees who may generally be hired as permanent employees after 3 – 6 months. Employees include the following four senior managers that report to the CEO: Chief Financial Officer, Chief Commercial Officer, Vice President of Operations and Vice President of Research & Development. The Company employs a total of 11 full-time scientists and technicians in its R&D group, including the Vice President of Research & Development.

 

Corporate Information

 

XG Sciences, Inc. was incorporated on May 23, 2006 in the State of Michigan and is organized as a “C” corporation under the applicable laws of the United States and State of Michigan. We do not currently have any affiliated companies or joint venture partners, and we have one wholly owned subsidiary called XG Sciences IP, LLC. This subsidiary was created in 2014 for the purpose of holding our intellectual property. Our headquarters and principal executive offices are located at 3101 Grand Oak Drive, Lansing, Michigan, 48911 and our telephone number is (517) 703-1110. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to section 13(a) or 15(d) of the Exchange Act are available free of charge through our website as soon as reasonably practicable after we electronically file with or furnish them to the SEC, and are available in print to any stockholder who requests a copy.

 

Our website address is http://www.xgsciences.com, although the information contained in, or that can be accessed through, our website is not part of this filing. You may also contact Dr. Philip L. Rose, our Chief Executive Officer via email at p.rose@xgsciences.com. Additionally, the SEC maintains a website that contains reports, proxy statements, information statements and other information regarding issuers, including us, that file electronically with the SEC at www.sec.gov.

 

 

ITEM 1A.          RISK FACTORS

 

Risks Relating to Our Business and Industry

 

We have a limited operating history, an accumulated deficit and a stockholders’ deficit, making it difficult for you to evaluate our business and your investment.

 

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XG Sciences, Inc. was incorporated on May 23, 2006, and is an advanced materials company. We sell bulk nanomaterials or products made with these materials to other companies for incorporation into their products. To date, there has been limited incorporation of our materials or products into customer products that are released for commercial sale. Because there is a limited demonstrated history of commercial success for our products, it is difficult to evaluate whether our products will ultimately be successful in the market. It is possible that larger and or extended commercial success may never happen and that we will never achieve the level of revenues necessary to sustain our business or continue to attract additional financing.

 

Many of our products represent new products that have not yet been fully developed and for which manufacturing operations have not yet been fully scaled. This means that investors are subject to all of the risks incident to the creation and development of multiple new products and their associated manufacturing processes.

 

As of December 31, 2018, and December 31, 2017, we have an accumulated deficit from operations of $(55,687,160) and $(47,767,544), respectively. As of December 31, 2018, and December 31, 2017, our total stockholder’s equity was $4,990,719 and $1,097,472, respectively. The deficit reflects net losses in each period since our inception incurred through development of nanomaterials without the presence of large-scale adoption to generate substantial revenues to cover development costs and generate a profit. We have never paid a dividend. Also, since inception, we have not generated sufficient revenues to cover our fixed expenses or sustain our business in any financial reporting period. Nor have we demonstrated the capability to produce sufficient materials to generate the ongoing revenues necessary to sustain our operations in the long-term. There can be no assurance that we will ever produce a profit.

 

Because we are subject to these uncertainties, there may be risks that management has failed to anticipate and you may have a difficult time evaluating our business and your investment in our Company. Our ability to become profitable depends primarily on our ability to successfully commercialize our products in the future. Even if we successfully develop and market our products, we may not generate sufficient or sustainable revenue to achieve or sustain profitability, which could cause us to cease or curtail operations. In such case, you would likely lose all or a significant part of your investments.

 

We will need to raise substantial additional capital in the future to fund our operations and we may be unable to raise such funds when needed and on acceptable terms, which could have a materially adverse effect on our business.

 

Developing, manufacturing and selling nanomaterials in commercially-viable quantities requires substantial funding. As of December 31, 2018, we had cash, cash equivalents and restricted cash on hand of $4,893,974. We believe our cash is sufficient to fund our operations for the next twelve months (through April 2020) when taking into account various sources of funding and cash received from continued commercial sales transactions. We intend that the primary means for raising funds will be through our Offering and the additional $5 million of proceeds from the Dow Facility available to drawdown, however our Offering will terminate not later than April 12, 2019 and we will likely need to raise additional funds in the future to fund our operations. There can be no assurance that we will be able to raise additional equity capital in subsequent equity offerings or that the terms and conditions of any future financings will be workable or acceptable to us and our stockholders. Our continuation as a going concern is dependent upon continued financial support from our shareholders, our ability to obtain necessary equity and/or debt financing to continue operations, and the attainment of profitable operations. In the event that we are not able to raise substantial additional funds in the future on terms that are acceptable or adjust our business model accordingly, we may be forced to curtail or cease operations and investors could lose all or a significant part of their investment.

 

We have limited experience in the higher volume manufacturing that will be required to support profitable operations, and the risks associated with scaling to larger production quantities may be substantial.

 

We have limited experience manufacturing our products. We have established initial commercial or pilot-scale production facilities for our bulk powders and certain integrated products. In order to develop the capacity to produce much higher volumes, it will be necessary to produce multiples of existing processes or engineer new production processes in some cases.

 

We have completed the first two phases of building out our 64,000 square foot manufacturing facility in Mason, MI, but there can be no assurance that this new facility will continue to be expanded in the future on time or as planned. There is no guarantee that we will be able to economically scale-up our production processes to the levels required. If we are unable to scale-up our production processes and facilities to support sustainable sales levels, the Company may be forced to curtail or cease operations and you could lose all or a significant part of your investment.

 

Projection of fixed monthly expenses and operating losses for the near future means that investors may not earn a return on their investment or may lose their investment.

 

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Because of the nature of our business, we project considerable fixed expenses that will lead to projected monthly deficits for the near future. Fixed manufacturing expenses to maintain production facilities, compensation expenses for scientists and other critical personnel, and ongoing rent and utilities amount to several hundred thousand dollars per month, and we believe that such expenses are required as a precursor to significant customer sales. However, there can be no assurance that monthly sales will ever reach a sufficient level to cover the cost of ongoing monthly expenses and if they do, are maintained for a sustainable period of time. If sufficient regular monthly sales are not generated to cover these fixed expenses, we will continue to experience monthly cash flow deficits which, if not eliminated, will require continuing new investment in the Company. If monthly cash flow deficits continue beyond levels that investors find tolerable, we may not be able to raise additional funds and may be forced to curtail or cease operations and you could lose all or a significant part of your investment.

 

We have a long and complex sales cycle and have not demonstrated the ability to operate successfully in this environment.

 

It has been our experience since our inception that the average sales cycle for our products can range from one to seven years from the time a customer begins testing our products until the time that they could be successfully used in a commercial product. The product introduction timing will vary based on the target market, with automotive uses typically being toward the long end and consumer products toward the shorter end. We have a limited track record of success in completing customer development projects, which makes it difficult for investors to fully evaluate the likelihood of our future success. The sales and development cycle for our products is subject to customer budgetary constraints, internal acceptance procedures, competitive product assessments, scientific and development resource allocations, and other factors beyond our control. If we are not able to successfully accommodate these factors to enable customer development success, we will be unable to achieve sufficient sales to reach profitability. In this case, we may not be able to raise additional funds and may be forced to curtail or cease operations and you could lose all or a significant part of your investment.

 

We could be adversely affected by our exposure to customer concentration risk.

 

We are subject to customer concentration risk as a result of our reliance on relatively few numbers of customers for a significant portion of our revenues. In 2018 we had one customer (a commercial customer) whose purchases accounted for 72% of product revenue and in 2017 we had one customer whose purchases accounted for 53% of total product revenues. Due to the nature of our business and the relatively large size of many of the applications our customers are developing, we anticipate that we will be dependent on a relatively small number of customers for the majority of our revenues for the next few years. It is possible that only a few customers could place orders sufficient to utilize most or all of our existing manufacturing capacity. In this case, there would be a risk of significant loss of future revenues if one or more of these customers were to stop ordering our materials, which could in turn have a material adverse effect on our business and on your investment.

 

Our revenues often fluctuate significantly based on one-off orders from customers or from the recognition of non-product revenues which vary from period-to-period, which may materially impact our financial results from period to period.

 

Because of the potential for large revenue swings from one-time, large orders or grants (or other such non-product revenue), it may be difficult to accurately forecast the needs for inventory, working capital, and other financial resources from period-to-period. Such orders would require a significant short-term increase in our production capacity and would require the financial resources to add staff and support the associated working capital. If such large, one-time orders were not handled smoothly, customer confidence in us as a viable supplier could be reduced and we might not succeed in capturing the additional larger orders that may be reflected in our business plan.

 

We operate in an advanced technology arena where hypothesized properties and benefits of our products may not be achieved in practice, or in which technological change may alter the attractiveness of our products.

 

Because there is only limited sustained history of successful use of our products in commercial applications, there is no assurance that broad successful commercial applications may be broadly technically feasible. Many of the scientific and engineering data related to our products has been generated in our own laboratories or in laboratory environments at our customers or third-parties, like universities and national laboratories. It is well known that laboratory data is not always representative of commercial applications.

 

Likewise, we operate in a market that is subject to rapid technological change. Part of our business strategy is to monitor such change and take steps to remain technologically current, but there is no assurance that such strategy will be successful. If we are not able to adapt to new advances in materials sciences, or if unforeseen technologies or materials emerge that are not compatible with our products and services or that could replace our products and services, our revenues and business prospects would likely be adversely affected. Such an occurrence may have severe consequences, including the potential for our investors to lose all or a significant part of their investment.

 

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Competitors that are larger and better funded may cause us to be unsuccessful in selling our products.

 

We operate in a market in which there are competitors. Global research is being conducted by substantially larger companies who have greater financial, personnel, technical, and marketing resources. There can be no assurance that our strategy of offering better materials based on our proprietary graphene nanoplatelets will be able to compete with other companies, many of whom will have significantly greater resources, on a continuing basis. In the event that we cannot compete successfully, we may be forced to cease our curtail operations and investors may lose all or a significant part of their investment.

 

We are dependent on key employees.

 

Our operations and development are dependent upon the experience and knowledge of Philip L. Rose, our Chief Executive Officer. If he was to resign or be terminated, our business would be adversely affected in the short term, and his departure could disrupt the business enough to endanger your investment. We also depend on Jacqueline Lemke, Chief Financial Officer, Dr. Liya Wang, Vice President of Research & Development, Bamidele Ali, Chief Commercial Officer, Scott Murray, Vice President of Operations, and Dr. Hiroyuki Fukushima, Technical Director. If the services of any of these individuals should become unavailable, our business operations might be adversely affected. We do not hold any “Key Person” insurance, and if several of these individuals became unavailable at the same time, our ability to continue normal business operations might be adversely affected, to the extent that revenue or profits could be diminished and you could lose all or a significant part of your investment.

 

Our success depends in part on our ability to protect our intellectual property rights, and our inability to enforce these rights could have a material adverse effect on our competitive position.

 

We rely on the patent, trademark, copyright and trade-secret laws of the United States and the countries where we do business to protect our intellectual property rights. We may be unable to prevent third parties from using our intellectual property without our authorization. The unauthorized use of our intellectual property could reduce any competitive advantage we have developed, reduce our market share or otherwise harm our business. In the event of unauthorized use of our intellectual property, litigation to protect or enforce our rights could be costly, and we may not prevail.

 

Many of our technologies are not covered by any patent or patent application, and our issued and pending U.S. and non-U.S. patents may not provide us with any competitive advantage and could be challenged by third parties. Our inability to secure issuance of our pending patent applications may limit our ability to protect the intellectual property rights these pending patent applications were intended to cover. Our competitors may attempt to design around our patents to avoid liability for infringement and, if successful, our competitors could adversely affect our market share. Furthermore, the expiration of our patents may lead to increased competition.

 

Our pending trademark applications may not be approved by the responsible governmental authorities and, even if these trademark applications are granted, third parties may seek to oppose or otherwise challenge these trademark applications. A failure to obtain trademark registrations in the United States and in other countries could limit our ability to protect our products and their associated trademarks and impede our marketing efforts in those jurisdictions.

 

In addition, effective patent, trademark, copyright and trade secret protection may be unavailable or limited in some foreign countries. In some countries, we do not apply for patent, trademark or copyright protection. We also rely on unpatented proprietary manufacturing expertise, continuing technological innovation and other trade secrets to develop and maintain our competitive position. Although we enter into confidentiality agreements with our employees and generally with third parties to protect our intellectual property, these confidentiality agreements are limited in duration and could be breached and may not provide meaningful protection of our trade secrets or proprietary manufacturing expertise. Adequate remedies may not be available if there is an unauthorized use or disclosure of our trade secrets and manufacturing expertise. In addition, others may obtain knowledge about our trade secrets through independent development or by legal means. The failure to protect our processes, apparatuses, technology, trade secrets and proprietary manufacturing expertise, methods and compounds could have a material adverse effect on our business by jeopardizing critical intellectual property.

 

Where a product formulation or process is kept as a trade secret, third parties may independently develop or invent and patent products or processes identical to our trade-secret products or processes. This could have an adverse impact on our ability to make and sell products or use such processes and could potentially result in costly litigation in which we might not prevail.

 

We could face intellectual property infringement claims that could result in significant legal costs and damages and impede our ability to produce key products, which could have a material adverse effect on our business, financial condition and results of operations.

 

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If we are unable to implement and maintain effective internal control over financial reporting, our stock could be less attractive to potential investors.

 

We are required to establish and maintain appropriate internal controls over financial reporting, subject to exemptions that we avail ourselves of under the JOBS Act discussed below. Failure to establish such controls, or any failure of such controls once established, could adversely impact our public disclosures regarding our business, financial condition or results of operations. Any failure of our controls could also prevent us from maintaining accurate accounting records and discovering accounting errors and financial frauds. Rules adopted by the SEC pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 require annual assessment of our internal control over financial reporting, and the standards that must be met for management to assess the internal control over financial reporting as effective are new and complex, and require significant documentation, testing and possible remediation to meet the detailed standards. In the year ended December 31, 2017, we identified material weaknesses in our internal controls over financial reporting related to a limited number of accounting personnel which did not provide for an adequate segregation of duties and the lack of a chief financial officer. In November 2018, the Company hired a CFO to oversee the finance and reporting function, modify processes to mitigate segregation of duties issues and increase supervisory and review controls. In addition to the hiring of a CFO in 2018, management also is increasing headcount in the finance and accounting team with some hires occurring in 2019, subsequent to year-end. While the addition of the CFO in 2018 and the increase in the accounting team in early 2019 will mitigate this deficiency, the additions did not occur timely enough in 2018 to remediate the internal control over financial reporting of the Company for the year ended December 31, 2018.

 

In addition, management’s assessment of internal controls over financial reporting may identify material weaknesses and conditions that need to be addressed in our internal controls over financial reporting or other matters that may raise concerns for investors in the future. Any actual or perceived weaknesses and conditions that need to be addressed in our internal control over financial reporting, disclosure of management’s assessment of our internal controls over financial reporting, or at such time as we are no longer subject to exemptions under the JOBS Act, disclosure of our independent registered public accounting firm’s report on management’s assessment of our internal controls over financial reporting may have an adverse impact on our ability to sell our common stock.

 

Future adverse regulations could affect the viability of the business.

 

Our bulk products have been approved for sale in the United States by the U.S. Environmental Protection Agency after a detailed review of our products and production processes for our H, M, R and C grade materials. In most cases, as far as we are aware, there are no current regulations elsewhere in the world that prevent or prohibit the sale of our products. Nevertheless, the sale of nano-materials is a subject of regulatory discussion and review in many countries around the world. In some cases, there is a discussion of potential testing requirements for toxicity or other health effects of nano-materials before they can be sold in certain jurisdictions. If such regulations are enacted in the future, our business could be adversely affected because of the requirement for expensive and time-consuming tests or other regulatory compliance. If our nano-materials are found to be toxic, such finding could have a material impact on our business and on the production and sale of our products. There can be no assurance that future regulations might not severely limit or even prevent the sale of our products in major markets, in which case our financial prospects might be severely limited, causing investors to lose all or a significant part of their investment.

 

Compliance with changing regulation of corporate governance and public disclosure will result in additional expenses and will divert time and attention away from revenue generating activities.

 

Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002 and related SEC regulations, have significantly increased the costs and risks associated with accessing the public markets and public reporting. Our management team will need to invest significant management time and financial resources to comply with both existing and evolving standards for public companies, which will lead to increased general and administrative expenses and a diversion of management time and attention from revenue generating activities to compliance activities, which could have an adverse effect on our business.

 

Given our limited resources, we may not effectively manage our growth.

 

There is no guarantee that we have the resources, financial or operational, required to manage our growth. This is particularly true as we expand facilities and manufacture our products on a greater commercial scale. Furthermore, rapid growth in our operations may place a significant strain on our management, administrative, operational and financial infrastructure. The inability to adequately manage our growth could have a material and adverse effect on our business, financial condition or results of operations, thus resulting in a lower quoted price of our common stock.

 

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Downturns in general economic conditions could adversely affect our profitability.

 

Downturns in general economic conditions can cause fluctuations in demand for our products, product prices, volumes and gross margins. Future economic conditions may not be favorable to our industry. A decline in the demand for our products or a shift to lower-margin products due to deteriorating economic conditions could adversely affect sales of our products and our profitability and could also result in impairments of certain of our assets.

 

Furthermore, any uncertainty in economic conditions may result in a slowdown to the global economy that could affect our business by reducing the prices that our customers may be able or willing to pay for our products or by reducing the demand for our products.

 

An increase in the cost of raw materials or electricity might affect our profits.

 

Any increase in the prices of our raw materials or energy might affect the overall cost of our products. If we are not able to raise our prices to pass on increased costs to our customers, we would be unable to maintain our existing profit margins. Our major cost components include items such as graphite, sulfuric acid, and electricity, which items are normally readily available industrial commodities. During our history as a business, we have not seen any material impact (as defined by GAAP) on our cost structure from fluctuations in raw material or energy costs, but this could change in the future.

 

Our results of operations could deteriorate if our manufacturing operations were substantially disrupted for an extended period.

 

Our manufacturing operations are subject to disruption due to extreme weather conditions, floods and similar events, major industrial accidents, strikes and lockouts, adoption of new laws or regulations, changes in interpretations of existing laws or regulations or changes in governmental enforcement policies, civil disruption, riots, terrorist attacks, war, and other events. We cannot assure you that no such events will occur. If such an event occurs, it could have a material adverse effect on us.

 

Some health effects of nanotechnology are unknown.

 

There is scientific debate on the health effects of nano-materials such as graphene nanoplatelets, but some scientists believe that certain nano-materials may be hazardous to human health, including the respiratory system if inhaled. Although there is no conclusive evidence of any danger associated with the handling of the Company’s products, there is a theoretical risk of danger to health if an individual is exposed to and/or inhales/ingests some of the Company’s products. The specific health effects of nanoplatelets are unknown and can depend on how they are incorporated and/or bonded to other materials. We carefully evaluate potential health effects of our products and the effects of handling materials on our employees and those who manufacture for us, but as any specific health risks are unknown, we cannot be certain our products are free of danger to our employees and customers. If graphene nanoplatelets are found to be hazardous to human health, this may adversely affect market acceptance of our products, subject us to additional regulation and have an adverse effect on our business.

Defects in our products or poor performance of our customers’ products could result in lost sales and subject us to substantial liability.

We have limited experience with large scale commercialization by our customers of products incorporating our nanoplatelets, and the chance of variability in the performance of our products as shipped may impact the performance of our customers’ products. If our customers’ products incorporating nanoplatelets perform poorly, whether due to design, engineering, production or other reasons, our customers may scale back or cancel orders. In certain cases, if our nanoplatelets are found to be the component that leads to failure or a failure to meet the performance specifications of a customer, we could be required to pay monetary damages. Real or perceived defects in our products could result in claims by our customers for losses they sustain. If our customers make such claims, we may be required, or may choose, for customer relations or other reasons, to expend additional resources to help correct any real or perceived defects. Liability provisions in our terms and conditions of sale may not be enforceable under some circumstances or may not fully or effectively protect us from claims and related liabilities and costs. In addition, regardless of the party at fault, errors of these kinds divert the attention of our engineering personnel from our product development efforts, damage our reputation and the reputation of our products, cause significant customer relations problems and can result in product liability claims. In addition, even claims that ultimately are unsuccessful could result in expenditures of funds in connection with litigation and divert management’s time and other resources. We also may incur costs and expenses relating to a recall of one or more of our products, and the occurrence of such claims could result in the delay or loss of market acceptance of our products and could adversely affect our business, operating results and financial condition.

 

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If product liability lawsuits are brought against us, we may incur substantial liabilities.

We have limited experience with the large-scale manufacturing and distribution of our products. The commercialization of our products and the sale of our products in significant quantities involves exposure to product liability claims. We do not have product liability insurance. If we choose to obtain product liability insurance but cannot obtain sufficient insurance coverage at an acceptable cost or otherwise protect against potential product liability claims, the commercialization of products that we develop may be prevented or inhibited.  We cannot predict all of the adverse health events that our products or products may cause. As a result, our future coverages may not be adequate to protect us from all of the liabilities that we may incur. If losses from product liability claims exceed any insurance coverage, we may incur substantial liabilities that exceed our financial resources. In addition, we may not be able to maintain future product liability insurance at an acceptable cost, if at all, and this insurance may not provide adequate coverage against potential claims or losses. If we are required to pay a product liability claim, we may not have sufficient financial resources and our business and results of operations may be harmed. Whether or not we are ultimately successful in product liability litigation, such litigation could also consume substantial amounts of our financial and managerial resources, and might result in adverse publicity, all of which could have a material adverse effect on our business.

 

Cybersecurity incidents could disrupt business operations, result in the loss of critical and confidential information, and adversely impact our reputation and results of operations.

 

Global cybersecurity threats and incidents can range from uncoordinated individual attempts to gain unauthorized access to information technology systems to sophisticated and targeted measures known as advanced persistent threats, directed at the Company, its plants and operations, its products, its customers and/or its third-party service providers. We rely on third party service providers to protect information technology systems, a breach of which could expose our confidential intellectual property, including trade secrets. The failure to protect such intellectual property could create a diminution in the value of our investment in research, development and engineering, and increased cybersecurity protection and remediation costs, which in turn could adversely affect our competitiveness and results of operations. We cannot be sure that our information technology infrastructure is safe from cybersecurity threats or other forms of intellectual property appropriation. Cybersecurity incidents, depending on their nature and scope, could potentially result in the misappropriation, destruction, corruption or unavailability of critical data and confidential or proprietary information (our own or that of third parties) and the disruption of business operations. The potential consequences of a material cybersecurity incident or other such intellectual property appropriation include reputational damage, claims from and litigation with third parties, fines levied by governmental authorities, and competitive disadvantages in our business.

 

 Risks Relating To Our Common Stock

 

There is a risk of dilution of your percentage ownership of common stock in the Company.

 

In addition to the shares which we may sell pursuant to our Registration Statement, we have the right to raise additional capital or incur borrowings from third parties to finance its business. We may also implement public or private mergers, business combinations, business acquisitions and similar transactions pursuant to which we would issue substantial additional capital stock to outside parties, causing substantial dilution in the ownership of the Company by our existing stockholders. Subject to certain exceptions (See “Management — Shareholder Side Letter”), our Board of Directors has the authority, without the consent of any of the stockholders, to cause the Company to issue more shares of common stock and/or preferred stock at such price and on such terms and conditions as are determined by the Board in its sole discretion.

 

The sale of the shares being offered by us in our Registration Statement, as well as the shares of common stock issuable upon the exercise of options and warrants, the shares issuable upon conversion of Series A Preferred Stock (including the shares of Series A Preferred Stock issuable upon the exercise of warrants) and the issuance of additional shares of capital stock by us will dilute your ownership percentage in the Company and could impair our ability to raise capital in the future through the sale of equity securities.

 

Certain stockholders who are also officers and directors of the Company may have significant control over our management, which may not be in your best interests.

 

As of December 31, 2018, the directors, or the entities they represent, and executive officers of the Company owned approximately 45.7% of the voting stock of the Company. Certain of these executives and directors, or the companies they represent, converted secured convertible notes into an additional 1,383,900 shares of Series A Preferred Stock on December 31, 2015.

 

18

 

 

Additionally, certain existing shareholders are party to a certain Shareholder Agreement, as amended on March 18, 2013 and amended on February 24, 2016 effective as of April 13, 2016 and amended on May 30, 2018 (the “Shareholder Agreement”). Although shareholders purchasing shares under our Registration Statement will not be subject to the Shareholder Agreement, certain provisions of such Shareholder Agreement may impact the governance of the Company. Pursuant to the Shareholder Agreement, (a) so long as Aspen Advance Opportunity Fund, LP, or “AAOF” or its affiliates own 10% of more of the aggregate outstanding Shareholder Stock (as defined in the Shareholder Agreement), (i) the size of the Board of Directors shall be set at seven individuals (provided, however, that the number of directors on the Board of Directors may be increased or decreased with the prior written consent of AAOF and shareholders (including AAOF) who in the aggregate then own Shareholder Stock representing a majority of the then issued and outstanding voting stock of the Company), (ii) one person nominated by AAOF shall be elected to the Board of Directors, (iii) two members of the Board of Directors, other than those nominated by AAOF, POSCO or Hanwha Chemical, shall qualify as independent Directors; (b) so long as POSCO owns 10% of more of the aggregate outstanding Shareholder Stock, one person nominated by POSCO shall be elected to the Board of Directors (POSCO does not currently own 10% or more of the aggregate outstanding Shareholder Stock and therefore does not maintain a seat on our Board of Directors); and (c) so long as Hanwha Chemical owns 10% of more of the aggregate outstanding Shareholder Stock, one person nominated by Hanwha Chemical shall be elected to the Board of Directors (Hanwha does not currently own 10% or more of the aggregate outstanding Shareholder Stock and therefore does not maintain a seat on our Board of Directors).

  

The Shareholder Agreement will continue in effect, unless the Shareholder Agreement is earlier terminated in accordance with its terms until the date on which the Company’s common stock is listed on the NASDAQ Stock Market of the New York Stock Exchange. As a result, the Shareholder Agreement will continue to remain in effect and certain of our larger shareholders will be entitled to continue to exercise their rights under such Shareholder Agreement, but purchasers of shares of common stock under the Registration Statement filed in connection with our current Offering are not required to adopt the Shareholder Agreement.

 

As a result, such entities have a significant influence on the affairs and management of the Company, as well as on all matters requiring stockholder approval, including electing and removing members of our Board of Directors, causing us to engage in transactions with affiliated entities, causing or restricting the sale or merger of the Company, and certain other matters. Such concentration of ownership and control could have the effect of delaying, deferring or preventing a change in control of the Company even when such a change of control would be in the best interests of our shareholders.

 

We may, in the future, issue additional shares of common stock, which would reduce investors’ percent of ownership and may dilute our share value.

 

Our Articles of Incorporation, as amended, authorize the issuance of up to 25,000,000 shares of common stock and up to 8,000,000 shares of preferred stock. As of December 31, 2018, the Company had 3,760,268 shares of common stock and 1,890,354 shares of Series A Preferred Stock issued and outstanding.

 

Upon a Public Listing on a Qualified National Exchange, all Series A Preferred Stock then currently outstanding will automatically convert into shares of common stock at the then-current Series A Conversion Rate (current ratio is 1.875 shares of common for 1 share of Series A), which would result in the issuance of 3,544,414 shares of common stock assuming the conversion of all 1,890,354 shares of Series A Preferred Stock. Series A Preferred Stockholders may also voluntarily convert at the then-current rate at any time prior to any such Public Listing on a Qualified National Exchange.

 

As of December 31, 2018, the Company had also granted options to purchase up to 797,875 shares of common stock and had issued warrants to purchase up to (i) 393,017 shares of common stock, (including the warrants for 125,000 shares issued under the Dow Facility) and (ii) 972,720 shares of Series A Preferred Stock which, if exercised, would be convertible into 1,823,850 shares of common stock at the then-current Series A Conversion Rate (currently 1.875 shares of common for 1 share of Series A). Therefore, we have committed to issue up to an additional 6,559,156 shares of common stock, which includes the issuance of (a) 3,544,414 shares upon conversion of all 1,890,354 shares Series A Preferred Stock currently outstanding at the Series A Conversion Rate, (b) 1,823,850 shares upon the conversion of 972,720 shares of Series A Preferred Stock (at the current Series A Conversion Rate) which are issuable upon exercise of 972,720 Series A warrants, (c) 797,875 shares upon the exercise of options and (d) the issuance of 393,017 shares upon the exercise of warrants. If we issued all 6,559,156 shares, we would have, including the 3,760,268 shares currently outstanding, 10,319,414 shares issued and outstanding, with 14,680,576 authorized shares available for future issuance, and if we assume the sale of all remaining 636,250 shares available as of December 31, 2018 being offered pursuant to our Registration Statement, we would have 14,044,337 authorized shares available for future issuance. The future issuance of common stock may result in substantial dilution in the percentage of our common stock held by our existing shareholders. Other than in our IPO, we may value any common stock issued in the future on an arbitrary basis. The issuance of common stock for future services or acquisitions or other corporate actions may have the effect of diluting the value of the shares held by our investors, might have an adverse effect on any trading market for our common stock and could impair our ability to raise capital in the future through the sale of equity securities.

 

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The Dow Facility obligates us to issue a warrant to purchase a share of our common stock for each $40 in debt drawn. If we decide to draw up to the remaining $5 million from the Dow Facility, we will become obligated to issue warrants to purchase up to 125,000 more of our shares, the exact amount depending on the amount drawn. If we issue these warrants, further dilution could occur.

 

We are considered a smaller reporting company and are exempt from certain disclosure requirements, which could make our stock less attractive to potential investors.

 

Rule 12b-2 of the Exchange Act , as amended and effective September 10,2018, defines a “smaller reporting company” as an issuer that is not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent that is not a smaller reporting company and that:

 

  Had a public float of less than $250 million as of the last business day of its most recently completed second fiscal quarter, computed by multiplying the aggregate worldwide number of shares of its voting and non-voting common equity held by non-affiliates by the price at which the common equity was last sold, or the average of the bid and asked prices of common equity, in the principal market for the common equity; or

 

  In the case of an initial registration statement under the Securities Act or Exchange Act for shares of its common equity, had a public float of less than $250 million as of a date within 30 days of the date of the filing of the registration statement, computed by multiplying the aggregate worldwide number of such shares held by non-affiliates before the registration plus, in the case of a Securities Act registration statement, the number of such shares included in the registration statement by the estimated public offering price of the shares; or

 

  In the case of an issuer who had a public float as calculated under paragraph (1) or (2) of this definition of less than $700 million or had no float and had annual revenues of less than $100 million during the most recently completed fiscal year for which audited financial statements are available.

 

As a “smaller reporting company” (in addition to and without regard to our status as an “emerging growth company”) (i) we are not required and may not include a “Discussion and Analysis” section in our proxy statements; (ii) we provide only 3 years of business development information; (iii) we provide fewer years of selected financial data in certain tables; and (iv) we have other “scaled” disclosure requirements that are less comprehensive than issuers that are not “smaller reporting companies” which may make our stock less attractive to potential investors, which could make it even more difficult for you to sell your shares.

 

We are subject to the periodic reporting requirements of the Exchange Act, which will require us to incur audit fees, legal fees and valuation fees in connection with the preparation of such reports. These additional costs will negatively affect our ability to earn a profit.

 

We are required to file periodic reports with the SEC pursuant to the Exchange Act and the rules and regulations thereunder by virtue of our effective Registration Statement and our status as a smaller reporting company. In order to comply with such requirements, our independent registered auditors have to review our financial statements on a quarterly basis and audit our financial statements on an annual basis. Moreover, our legal counsel will have to review and assist in the preparation of such reports. Factors such as the number and type of transactions that we engage in and the complexity of our reports cannot accurately be determined at this time and may have a major negative effect on the cost and amount of time to be spent by our auditors and attorneys. However, the incurrence of such costs will be an expense to our operations and thus have a negative effect on our ability to meet our overhead requirements and earn a profit.

 

However, for as long as we remain an “emerging growth company” we intend to take advantage of certain exemptions from various reporting requirements until we are no longer an “emerging growth company.”

 

For so long as we remain a smaller reporting company, we benefit from many of the same exemptions and exclusions as an emerging growth company. In the event that we cease to be an emerging growth company as a result of a lapse of the five-year period, but continue to be a smaller reporting company, we would continue to be subject to the exemptions available to emerging growth companies until such time as we were no longer a smaller reporting company.

 

After, and if ever, we are no longer an “emerging growth company,” we expect to incur significant additional expenses and devote substantial management effort toward ensuring compliance with those requirements applicable to companies that are not “emerging growth companies,” including Section 404 of the Sarbanes-Oxley Act.

20

 

 

For so long as we are an emerging growth company, we may rely on certain exemptions provided in the JOBS Act, which could make our common stock less attractive to investors due to the nature of the reduced disclosure.

 

We are an “emerging growth company,” as defined in the JOBS Act, and may remain an emerging growth company up to the last day of the fiscal year following the fifth anniversary of the date of the completion of our Offering. For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or SOX Section 404, not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, reduced disclosure obligations regarding executive compensation 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. In this Annual Report on Form 10-K, we have provided only two years of audited financial statements and have not included all of the executive compensation related information that would be required if we were not an emerging growth company. We cannot predict whether investors will find our common stock less attractive if we rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile. In addition, 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. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.

 

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

 

Upon a Public Listing, the trading market for our common stock will depend in part on the research and reports that securities or industry analysts publish about us or our business. We do not currently have and may never obtain research coverage by securities and industry analysts. If no securities or industry analysts commence coverage of us, the trading price for our common stock and other securities would be negatively affected. In the event that we obtain securities or industry analyst coverage, if one or more of the analysts who covers us downgrades our securities, the price of our securities would likely decline. If one or more of these analysts ceases to cover us or fails to publish regular reports on us, interest in the purchase of our securities could decrease, which could cause the price of our common stock and other securities and their trading volume to decline.

 

If our common stock becomes a “penny stock,” you may have greater difficulty selling your shares.

 

Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or quotation system. After a Public Listing, our common stock may become a “penny stock” within the meaning of the rules, the rules apply to us and to our securities if we are not listed on a national securities exchange. These rules may further affect the ability of owners of shares to sell our securities in any market that might develop for them. As long as the trading price of our common stock is less than $5.00 per share, even if our common stock is quoted on either the OTCQX or OTCQB market place operated by the OTC Markets, our common stock will be subject to Rule 15g-9 under the Exchange Act (the “Penny Stock Rules”). The Penny Stock Rules require a broker-dealer, prior to a transaction in a penny stock, to deliver a standardized risk disclosure document prepared by the SEC, that:

 

  contains a description of the nature and level of risk in the market for penny stocks in both public offerings and secondary trading;

 

  contains a description of the broker’s or dealer’s duties to the customer and of the rights and remedies available to the customer with respect to a violation to such duties or other requirements of securities laws;

 

  contains a brief, clear, narrative description of a dealer market, including bid and ask prices for penny stocks and the significance of the spread between the bid and ask price;

 

  contains a toll-free telephone number for inquiries on disciplinary actions;

 

  defines significant terms in the disclosure document or in the conduct of trading in penny stocks; and

 

  contains such other information and is in such form, including language, type, size and format, as the SEC shall require by rule or regulation.

 

21

 

 

The broker-dealer also must provide, prior to effecting any transaction in a penny stock, the customer with: (a) bid and offer quotations for the penny stock; (b) the compensation of the broker-dealer and its salesperson in the transaction; (c) the number of shares to which such bid and ask prices apply, or other comparable information relating to the depth and liquidity of the market for such stock; and (d) a monthly account statements showing the market value of each penny stock held in the customer’s account. In addition, the penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules; the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written acknowledgment of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitably statement. These disclosure requirements may have the effect of reducing the trading activity in the secondary market for our stock it becomes designated as a Penny Stock.

 

Because we do not intend to pay any cash dividends on our common stock, our stockholders will not be able to receive a return on their shares unless they sell them.

 

We intend to retain any future earnings to finance the development and expansion of our business. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. Unless we pay dividends, our stockholders will not be able to receive a return on their shares unless they sell them. There is no assurance that stockholders will be able to sell shares when desired.

 

Risks Related to our IPO

 

Because the offering price for the primary shares has been arbitrarily set by us, you may not realize a return on your investment upon the resale of your shares.

 

The offering price of each share and other terms and conditions relative to the shares being sold in our ongoing IPO have been arbitrarily determined by us and do not bear any relationship to assets, earnings, book value or any other objective financial criteria. Additionally, as the Company was formed on May 23, 2006, and has only a limited operating history with no earnings, the price of the offered shares under our Registration Statement is not based on its past earnings, and no investment banker, appraiser, or other independent third party, has been consulted concerning the offering price for the shares or the fairness of the offering price used for the shares, as such our stockholders may not be able to receive a return on their investment when they sell shares of common stock purchased under our Registration Statement. Additionally, our IPO will terminate not later than April 12, 2019, and therefore we will no longer have the ability to utilize this method for the sale of our equity to investors which could hamper our overall ability to raise capital which could have a material adverse effect on our operations.

 

Our officers and directors have limited prior experience offering and selling securities to the public, and as a result, we may not be able to raise sufficient funds to sustain our business.

 

Certain of our officers and directors are selling shares in our IPO, where allowed to do so under applicable state blue sky laws, on our behalf. We are conducting a “best efforts” offering under our Registration Statement which does not require a minimum amount to be raised, and there is no guarantee sufficient funds will be raised to sustain our business. Also, the Offering will terminate on April 12, 2019.

 

Our officers and directors have limited experience conducting a publicly registered securities Offering and we may not be able to successfully raise sufficient funds. If we are not able to raise sufficient funds, we may not be able to fund our operations as planned, and we may be forced to curtail or cease operations and investors could lose all or a significant part of their investment. Our inability to successfully conduct the Offering could be the basis of investors losing all or a significant part of their investment in us.

 

Due to the lack of any quotation or trading market for our securities, you may have difficulty selling any shares you purchase in our IPO.

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We are not registered on any market or public stock exchange. There is presently no demand for our common stock and no public market exists for our shares. In the future, we intend to seek a listing or a quotation on a Qualified National Exchange or the OTC Markets. However, we cannot make any assurance that our common stock will ever be quoted or traded on a Qualified National Exchange or the OTC Markets or that any public market for our stock will develop. In order to achieve a Public Listing, we will have to meet certain initial listing qualifications of the Qualified National Exchange or the OTC Markets on which we are seeking the Public Listing. In addition, we will need to have market makers agree to make a market in our common stock and file a FINRA Form 15c211 with the SEC on our behalf before we can achieve a Public Listing. As of the date of this Annual Report on Form 10-K, there are no assurances or understandings between the Company and anyone acting on our behalf, with any market maker regarding participation in a future trading market for our securities. If we are successful in achieving a Public Listing for our common stock, we will also need to remain current in our quarterly and annual filings with the SEC to achieve and maintain such Public Listing. Market makers are not permitted to begin quotation of a security whose issuer does not meet these filing requirements. Furthermore, if we are not able to pay the expenses associated with our ongoing reporting obligations, we will not be able to achieve or maintain a Public Listing. If no public market is ever developed for our common stock, it will be difficult for investors to sell any of our shares. In such a case, investors may find that they are unable to achieve any benefit from their investment or liquidate their shares without considerable delay, if at all. In addition, if we fail to have our common stock quoted on a public trading market, any common stock purchased by investors will not have a quantifiable value and it may be difficult, if not impossible, to ever resell their shares, resulting in an inability to realize any value from their investment.

 

ITEM 1B.   UNRESOLVED STAFF COMMENTS

 

None.

 

ITEM 2. PROPERTIES

 

We lease three separate facilities. Administrative offices and a manufacturing operation are in a 25,000 square foot building with an operating lease that expires in March 2022.   Research and development laboratories are in a 14,300 square foot space with an operating lease that extends to December 2022. In October 2017, we signed a lease for a 64,000 square foot manufacturing facility which is the site for expansion of our mechanical exfoliation capacity. This facility replaced the 6,600 square foot facility in the early part of 2018. The term of the operating lease for the new facility is 5 years expiring December 2022. All of the physical assets of the Company are contained within these facilities. XG Sciences has achieved and maintains an ISO9001:2015 quality certification for all of its locations.

 

ITEM 3. LEGAL PROCEEDINGS

 

None.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable.

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

Market for Common Equity

 

As of March 28, 2019, we are offering up to 585,000 remaining shares of our common stock at $8.00 per share pursuant to our Registration Statement. No public market currently exists for our shares and a public market may never develop, or, if any market does develop, it may not be sustained.

 

After our Offering terminates on April 12, 2019, we intend to seek either (i) a listing of our common stock on a securities exchange registered with the SEC under Section 6(a) of the Exchange Act, such as the NASDAQ Capital Market or the NYSE, or (ii) the quotation of our common stock on the OTCQB or OTCQX marketplaces operated by OTC Markets Group, Inc. In order to achieve such a Public Listing, we will have to meet certain initial listing qualifications of the Qualified National Exchange or the OTC Markets on which we are seeking the Public Listing. In addition, we will need to have market makers agree to make a market in our common stock and file a FINRA Form 15c211 with the SEC on our behalf before we can achieve a Public Listing, and we will also need to remain current in our quarterly and annual filings with the SEC. As of the date of this report, there are no assurances or understandings between the Company and anyone acting on our behalf, with any market maker regarding participation in a future trading market for our securities. There can be no assurance that our common stock will ever be quoted or traded on a Qualified National Exchange or the OTC Markets or that any market for our common stock will develop.

 

Holders of Equity

 

As of April 1, 2019, we had 361 record holders of our common stock, and a total of 3,811,518 shares of common stock issued and outstanding. We had 13 record holders of Series A Preferred Stock and a total of 1,890,354 shares of Series A Preferred Stock issued and outstanding. In total, we had 366 shareholders of record of all classes of our capital stock as of April 1, 2019.

 

Each share of Series A Preferred Stock is voluntarily convertible, at the option of the holder thereof, at any time after the date of issuance and prior to any Public Listing of common stock on a Qualified National Exchange, into that number of fully paid, non-assessable shares of common stock determined by dividing the Original Issue Price by the Conversion Price then in effect, as such terms are defined in the Series A Designations. The current Series A Conversion Rate is 1.875 shares of common for 1 share of Series A. The Conversion Price of the Series A Preferred Stock is subject to adjustments pursuant to the occurrence of stock splits and certain other specified events, and therefore the respective conversion rates are subject to change.

 

Furthermore, under the terms of the Series A Designations (as amended), all outstanding shares of Series A Preferred Stock will automatically convert into shares of common stock upon a Public Listing on a Qualified National Exchange at the then-current Series A Conversion Rate. At the current Series A Conversion Rate, if all outstanding shares of Series A Preferred Stock were voluntarily converted or automatically converted, we would issue 3,544,414 shares of common stock to satisfy such conversions.

 

As of December 31, 2018, the Company had granted options to purchase up to 797,875 shares of common stock and had issued warrants to purchase up to (i) 393,017 shares of common stock (including the warrants for 125,000 shares issued under the Dow Facility) and (ii) 972,720 shares of Series A Preferred Stock which, if exercised, would be convertible into 1,823,850 shares of common stock at the then-current Series A Conversion Rate (currently of 1.875 shares of common for 1 share of Series A). Therefore, we have committed to issue up to an additional 6,559,146 shares of common stock, which includes the issuance of (a) 3,544,414 shares upon conversion of all 1,890,354 shares Series A Preferred Stock currently outstanding at the Series A Conversion Rate, (b) 1,823,850 shares upon the conversion of 972,720 shares of Series A Preferred Stock (at the current Series A Conversion Rate) which are issuable upon exercise of 972,720 Series A warrants, (c) 797,875 shares upon the exercise of options and (d) the issuance of 393,017 shares upon the exercise of warrants. If we issued all 6,559,145 shares, we would have, including the 3,760,268 shares currently outstanding, 10,319,424 shares issued and outstanding, with 14,680,576 authorized shares available for future issuance, and if we assume the sale of all remaining 636,250 shares available as of December 31, 2018 being offered pursuant to our Registration Statement, we would have 14,044,326 authorized shares available for future issuance. The future issuance of common stock may result in substantial dilution in the percentage of our common stock held by our then existing stockholders. Except with respect to the IPO (which is priced at $8.00 per share), we may value any common stock issued in the future on an arbitrary basis. The issuance of common stock for future services or acquisitions or other corporate actions may have the effect of diluting the value of the shares held by our investors, might have an adverse effect on any future trading market for our common stock and could impair our ability to raise capital in the future through the sale of equity securities.

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Securities Authorized for Issuance under Equity Compensation Plans

 

As of December 31, 2018 and 2017, the Company had outstanding stock options to purchase up to 797,875 and 677,125 shares of common stock, respectively.

 

In 2007, the Company implemented a Stock Option Plan (the “2007 Plan”) and initially reserved 75,000 shares of common stock to cover stock options that might be issued under the 2007 Plan. However, in March 2016, shareholders holding a majority of the outstanding capital stock voted to increase the number shares reserved for issuance under the 2007 Plan to 1,200,000.

 

As of December 30, 2016, stock options to purchase a total of 369,750 shares at prices ranging from $8.00 to $12.00 per share had been granted to Company employees and Directors, with expiration dates ranging from December 2017 to October 2023, with a weighted average purchase price of $11.89 per share.

 

The previously established 2007 Plan, which was scheduled to expire on October 30, 2017 and under which we granted key employees and directors options to purchase shares of our common stock at not less than fair market value as of the grant date. On May 4, 2017, the Board approved the 2017 Equity Incentive Plan (the “2017 Plan”) to replace the 2007 Plan, which became effective upon the approval of the shareholders holding a majority of the voting power in the Company on July 18, 2017. The 2017 Plan replaces the 2007 Plan and authorizes us to issue awards (stock options and restricted stock) with respect of a maximum of 1,200,000 shares of our common stock, which equals the number of shares authorized under the 2007 Plan, as amended.   

 

On July 24, 2017, certain stock options from the 2007 Plan were cancelled and replacement stock options were awarded. The replacement stock option awards have an exercise price of $8.00 per share, a seven-year term, are vested 50% on date of grant with the remaining vesting annually over a 4-year period from the date issued and are subject to certain other terms. Each option holder received options equal to 150% of the number of cancelled stock options. The cancellation and reissuance of the stock options were treated as a modification under ASC 718, Compensation-Stock Compensation. Incremental compensation cost of approximately $1,015,758 was measured as the excess of the fair value of the modified award over the fair value of the original award immediately before the terms were modified. Compensation cost of approximately $501,071 was recorded on the date of cancellation for awards that were vested on the date of the modification. For unvested awards, compensation cost of approximately $514,687 will be recorded over the remaining requisite service period.

 

On September 30, 2018 and August 10, 2017, the Company granted each Board member 2,500 stock options and 2,500 shares of restricted stock for their Board services. The options were granted at a price of $8.00 per share and vest ratably over a four-year period beginning on the one-year anniversary. The options had an aggregate grant date fair value of $29,580 and $26,120 on September 30, 2018 and August 10, 2017, respectively. The restricted stock issued to the Board members has an aggregate fair value of $160,000 and vest ratably in arrears over four quarters on the last day of each fiscal quarter following the grant date. As of December 31, 2018, and 2017, 10,000 and 5,000 of the 20,000 shares of restricted stock issued had vested, resulting in compensation expense of $80,000 and $40,000 for the years ended December 31, 2018 and 2017, respectively.

 

The restricted stock issued to the Board members has an aggregate fair value of $160,000 and vest ratably in arrears on the last day of each fiscal quarter following the grant date. As of December 31, 2018, and 2017, 15,000 and 5,000 shares of restricted stock had vested resulting in compensation expense of $40,000 and $80,000 for the years ended December 31, 2017 and 2018, respectively.

 

On November 1, 2017, we granted 32,500 stock options to employees with an exercise price of $8.00 and a seven-year term. The aggregate fair value of the awards on the date of grant was $88,946. During the year ended December 31, 2018, we granted 138,250 stock options to employees with an exercise price of $8.00 and a seven-year term. The aggregate fair value of the awards on the date of grant was $408,237. The stock options vest equally over four years beginning on the first anniversary of the date of grant.

 

As of December 31, 2018, stock options to purchase a total of 797,875 shares at a price of $8.00 per share had been granted to Company employees and Directors, with expiration dates ranging from July 2024 to November 2024.

 

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Equity Compensation Plans as of December 31, 2017

 

Equity Compensation Plan Information
Plan category   Number of
securities to be
issued upon
exercise of
outstanding
options,
warrants
and rights
(a)
    Weighted-
average exercise
price of
outstanding
options,
warrants
and rights
(b)
    Number of
securities
remaining
available for
future issuance
under equity
compensation
plans (excluding
securities
reflected in
column (a)
(c)
 
Equity compensation plans approved by security holders(1)     797,875     $ 8.00       402,125  
Equity compensation plans not approved by security holders                  
Total     797,875     $ 8.00       402,125  

 

  (1) Reflects our 2017 Plan, for the benefit of our directors, officers, employees and consultants as of December 31, 2018. As of December 31, 2018, we had reserved 1,200,000 shares of common stock for such persons pursuant to that plan and had granted stock options to purchase 797,875 shares at a price of $8.00 with 402,125 shares remaining available for future issuance.

 

DIVIDEND POLICY

 

Since inception, we have not paid any dividends on our common stock. We currently do not anticipate paying any cash dividends in the foreseeable future on our common stock, because we intend to retain our earnings, if any, to finance the growth of our business. Our Board of Directors will have the discretion to declare and pay dividends in the future. Payment of dividends in the future will depend upon our earnings, capital requirements, and other factors, which our Board of Directors may deem relevant.

 

UNREGISTERED SALES OF EQUITY SECURITIES

 

During the period from May 17, 2016 through December 31, 2018 we issued shares of Series A Preferred Stock to AAOF as payment for lease financing obligations under the terms of a Master Leasing Agreement as detailed below.

 

Shares of Series A Preferred Stock Issued to AAOF as Lease Financing Payments

 

Date   Shares   Date   Shares     Date   Shares
5/17/2016   7,140   1/18/2017   7,140     3/26/2018   7,140
5/17/2016   7,140   4/3/2017   7,140     4/2/2018   7,140
8/17/2016   4,760   7/3/2017   7,140     7/2/2018   2,716
9/30/2016   2,380   10/3/2017   7,140     7/16/2018   7,947
10/1/2016   7,140             10/4/2018   2,716
                  12/31/2018   4,879
                       
Total   28,560       28,560         32,538

  

 

 

 

With the final issuance of Series A Preferred Stock to AAOF on December 31, 2018, all obligations under the terms of the Master Lease have been fulfilled and the Master Lease has expired.

 

On December 14, 2016, we issued a promissory note in the amount of $2,000,000 and warrants to purchase 50,000 shares of common stock of the Company to Dow pursuant to the Dow Facility. The notes are non-convertible and mature on December 1, 2021. The warrants have a seven-year maturity date with a strike price of $8.00 per share.

 

On July 18, 2017, September 22, 2017, and December 4, 2017 we issued promissory notes in the amount of $1,000,000 and warrants to purchase 25,000 shares of common stock, respectively for each date ($3,000,000 in total for the notes and 75,000 for the warrants) to Dow pursuant to the Dow Facility. The notes are non-convertible and mature on December 1, 2021. The warrants have a seven-year maturity date with a strike price of $8.00 per share. 

 

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ITEM 6.  SELECTED FINANCIAL DATA

 

Not applicable.

 

ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This section includes a number of forward-looking statements that reflect our current views with respect to future events and financial performance. Forward-looking statements are often identified by words like “believe”, “expect”, “estimate”, “anticipate”, “intend”, “project” and similar expressions, or words which, by their nature, refer to future events. You should not place undue certainty on these forward-looking statements. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our predictions.

 

Overview of our Business

 

XG Sciences was formed in May 2006 for the purpose of commercializing certain technology to produce graphene nanoplatelets. First isolated and characterized in 2004, graphene is a single layer of carbon atoms configured in an atomic-scale honeycomb lattice. Among many noted properties, monolayer graphene is harder than diamonds, lighter than steel but significantly stronger, and conducts electricity better than copper. Graphene nanoplatelets are particles consisting of multiple layers of graphene. Graphene nanoplatelets have unique capabilities for energy storage, thermal conductivity, electrical conductivity, barrier properties, lubricity and the ability to impart strength when incorporated into plastics or other matrices.

  

We believe the unique properties of graphene and graphene nanoplatelets will enable numerous new product applications and the market for such products will quickly grow to be a significant market opportunity. Our business model is to design, manufacture and sell advanced materials we call xGnP® graphene nanoplatelets and value-added products based on these nanoplatelets. We currently have hundreds of customers trialing our products for numerous applications, including, but not limited to lithium ion batteries, lead acid batteries, thermally conductive adhesives, composites, thermal management and heat transfer, inks and coatings, printed electronics, construction materials, cement, and in a range of other industrial uses. We believe our proprietary processes have enabled us to be among the low-cost producers of high quality, graphene nanoplatelets and value-added products containing graphene nanoplatelets and that we are well positioned to address a wide range of end-use applications.

 

We sell products to customers around the world and have sold materials to over 1,300 customers in 47 countries since 2008. Some of these customers are research organizations and some are commercial organizations. Our customers have included well-known automotive and OEM suppliers around the world (Ford, Johnson Controls, Magna, Honda Engineering) world-scale lithium ion battery manufacturers in the US, South Korea and China (Samsung SDI, LG Chemical, Lishen, A123) and diverse specialty material companies (3M, BASF, Henkel, Dow, DuPont, Callaway) as well as leading research centers such as Lawrence Livermore National Laboratory and Oakridge National Laboratory. We have also licensed some of our base manufacturing technology to other companies. Our licensees include POSCO, the fifth largest steel manufacturer in the world by tonnage of output (as reported by Worldsteel Associates in “World Steel in Figures 2018”), and Cabot Corporation (“Cabot”), a leading global specialty chemicals and performance materials company. These licensees further extend our technology through their customer networks.

 

We target our xGnP® nanoplatelets for use in a range of large and growing end-use markets. Our proprietary manufacturing processes allow us to produce nanoplatelets with varying performance characteristics that can be tuned to specific end-use applications based on customer requirements. We manage our business with five major product lines at this time:

 

  1. Bulk Materials. We sell bulk materials under the trademarked brand name of xGnP® graphene nanoplatelets. These materials are produced in various grades, which are analogous to average particle thickness, and average particle diameters. There are four commercial grades (Grades C, H, M & R), each of which is offered in three variants that differ in either standard particle sizes, and/or surface areas ranging from 50 to 800 square meters per gram of material depending on the product. These bulk materials, which normally ship in the form of a dry powder, are especially applicable for use as additives in polymeric or metallic composites, or in coatings or other formulations where particular electrical, thermal or barrier applications are desired by our customers. We also offer our material in the form of dispersions of nanoplatelets in liquids such as water, alcohol, or organic solvents, or mixed into resins or polymers such as epoxies or urethanes.

 

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  2. Composites.  .  These consist of compositions of specially designed xGnP® graphene nanoplatelets formulated in pre-dispersed mixtures that can be easily incorporated in various polymers. Our integrated composites portfolio includes pre-compounded resins derived from a range of thermoplastics as well as master batches of resins and xGnP® nanoplatelets and their combination with resins and fibers for use in various end-use applications that may include industrial, automotive and sporting goods and which have demonstrated efficacy in standard injection molding, compression molding, blow molding and 3-D processes, to name but a few. Our current product portfolio of polymer resins containing various forms of our xGnP® graphene nanoplatelets and in varying concentration and includes: polyurethane (XGPU), polypropylene (XGPP), polyethylene terephthalate (XGPET), vinyl ester (XGVE), polyetherimide (XGPEI) and high-density polyethylene (XGHDPE). Other polymers may be added over time depending on the end-market and customer needs. In addition, we offer various bulk materials with demonstrated efficacy in plastic composites to impart improved physical performance to such matrices, which may be supplied as dry powders or as aqueous or solvent-based dispersions or cakes as described above. We have also targeted use of our graphene nanoplatelets as an additive in cement mixtures, which we believe results in improved barrier resistance, durability, toughness and corrosion protection. Our GNP® Concrete Additive promotes the formation of more uniform and smaller grain structure in cement. The resulting fine-grain and uniform structure provides improvements in flexural and compressive strength. In addition, the embedded graphene nanoplatelets will stop cracks from forming and retard crack propagation, should any cracks form – the combination of which will improve lifetime and durability of cement.

 

  3. Inks and Coatings. These value-added products consist of specially-formulated dispersions of xGnP® together with solvents, binders, and other additives to make electrically or thermally conductive products designed for printing or coating and which are showing promise in diverse customer applications such as advanced packaging, electrostatic dissipation and thermal management. We also offer a set of standardized ink formulations suitable for printing. These inks offer the capability to print electrical circuits or antennas, and might be suitable for other electrical or thermal applications. All of these formulations can be customized for specific customer requirements.

 

  4. Energy Storage Materials. These value-added products consist of specialty advanced materials that have been formulated for specific applications in the energy storage segment. Chief among these is our proprietary, specially formulated silicon-graphene composite material (also referred to as “SiG” or “XG SiG®) for use in lithium-ion battery anodes. XG SiG® targets the never-ending need for higher battery capacity and longer life. In several customer trials, our SiG material has demonstrated three to five times specific storage capacity improvement compared to what is currently available with conventional lithium ion batteries today. Additionally, we offer various bulk materials for use as conductive additives for cathodes and anodes in li-ion batteries, as an additive to anode slurries for lead-carbon batteries, and we are investigating the use of our materials as part of other battery components.

 

  5. Thermal Management Materials.  These consist mainly of two types of products, our XG Leaf® sheet products and various thermal interface materials (“TIM”) in the form of custom greases or pastes. XG Leaf® is a family of sheet products ideally suited for use in thermal management in portable electronics, which may include cell phones, tablets and notebook PC’s. As these devices continue to adopt faster electronics, higher data management capabilities, brighter displays with ever increasing definition, they generate more and more heat. Managing that heat is a key requirement for the portable electronics market and our XG Leaf® product line is suited to address the need. These sheets are made using special formulations of xGnP® graphene nanoplatelets as precursors, along with other materials for specific applications. Our custom XG TIM® greases and pastes are also designed to be used in various high temperature environments. Additionally, we offer various bulk materials for use as active components in adhesives, liquids, coatings and plastic composites to impart improved thermal management performance to such matrices.

 

Because graphene is a new material, many of our customers are still developing applications that use our products, and thus historically those customers have purchased products in quantities consistent with development purposes, although some are now purchasing in quantities consistent with larger volume commercial production. The process of “designing-in” new materials is a relatively complex one and involves the use of relatively small amounts of the new material in laboratory and engineering development for an extended period of time. Following successful development, we believe customers that incorporate our materials into their products will then order much larger quantities of material to support commercial production. Thus, while many of our customers are currently purchasing our materials in kilogram (one or two pound) quantities, and some have begun to purchase in metric tons, we believe many will require tens of tons or even hundreds of tons of material when they commercialize products that incorporate our materials. Although, our customers are under no obligation to report to us on the usage of our materials, some have indicated that they have introduced or will soon introduce commercial products that use our materials.

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We are tracking the commercial and development status of more than 75 different customer applications using our materials with some customers pursuing multiple applications. As of December 31, 2018, we had nineteen specific customer applications where our materials are incorporated into our customers’ products and such customers are actively promoting or selling these products to their own customers. In addition, we have another eighteen customer applications where our customers have indicated that they expect to begin shipping product incorporating our materials in the next 3 – 6 months, and we have another twenty customer applications where our customers have indicated an intent to commercialize in the next 6 – 9 months. We are also working with numerous additional customers that have not yet indicated an exact date for commercialization, but we believe have the potential to contribute to revenue in 2019. The following graphic demonstrates the trend over the past 8 quarters as an increasing number of customers indicate their intent to commercialize applications and move into actively selling or promoting products for future sales. We anticipate that the average order size for these customers will increase throughout 2019 as their demand grows. As a result, we believe we will begin shipping significantly greater quantities of our products, and thus continue increasing revenue in 2019 and beyond. Based on the status of current discussions with customers and their feedback on the performance of our materials in their products, we believe we will be able to recognize approximately $8-10 million of revenue in 2019, although this cannot be assured

 

Operating Segment

 

We have one reportable operating segment that manufactures xGnP® graphene nanoplatelets and value-added products produced therefrom, we conduct research on graphene nanoplatelets and related products, and license our technology as appropriate. As of December 31, 2018, we shipped products on a worldwide basis, but all of our assets were located within the United States.

 

Our Critical Accounting Policies

 

US generally accepted accounting principles (“GAAP”) requires management to make estimates, judgments and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, together with amounts disclosed in the related notes to the consolidated financial statements. Actual results and outcomes may differ from management’s estimates, judgments and assumptions. Significant estimates, judgments and assumptions used in our consolidated financial statements include, but are not limited to, those related to revenues, the fair values of stock-based compensation, derivative financial instrument liabilities, and liquidity. These estimates, judgments, and assumptions are reviewed periodically and the effects of material revisions in estimates are reflected in the consolidated financial statements prospectively from the date of the change in estimate.

 

Revenue Recognition

 

On January 1, 2018, the Company adopted ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606), which supersedes nearly all previous revenue recognition guidance.

 

Revenues are recognized at a point in time, typically when control of the promised goods is transferred to customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods. The Company does not recognize revenue in cases where collectability is not probable, and defers the recognition until collection is probable or payment is received.

 

The Company generally expenses sales commissions when incurred because the amortization period would have been one year or less. These costs are recorded within selling, general and administrative expenses. Customer deposits, deferred revenue and other receipts are deferred and recognized when the revenue is realized and earned.

 

Revenue related to licensing agreements is recorded upon substantial performance of the terms of the licensing contract. In the case of licensing arrangements that involve up-front payments, revenue is recorded when management determines that the appropriate terms of the contract have been fulfilled. For example, this may occur when technology has been transferred via written documents or, if training is involved, whenever all contracted training has occurred. In the case of licenses where product delivery is also embedded in the deliverable, a portion of revenue would be recognized when products are delivered.

 

In the case of licensing arrangements that involve ongoing royalties based on sales of products produced with our technology, royalty income is recorded when received or, in the case of minimum royalties due, in the period when due.

 

Grant contract revenue is recognized over the life of the contracts as the services are performed.

 

Amounts received in excess of revenues earned are recorded as deferred revenue.

 

Stock-Based Compensation

 

We recognize compensation expense in our statement of operations for all share-based option and stock awards, based on estimated grant-date fair values.

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We estimate the grant-date fair value of stock-based compensation awards using the Black-Scholes option valuation model. This model is affected by the estimated value of our common stock on the date of the grant as well as assumptions regarding a number of highly complex and subjective variables. These variables include the expected term of the option, the exercise price, expected risk-free rates of return, the expected volatility of our common stock, and expected dividend yield, each of which is more fully described below. The assumptions for the estimated value of our common stock, expected term and expected volatility are the assumptions that most significantly affect the grant date fair value.

 

Expected Term: Because we have limited experience related to the exercise of employee stock options, we use the simplified method permitted by SEC Staff Accounting Bulletin Topic 14 to estimate the expected term of the options. The expected term of an option is estimated to be equal to the mid-point between the vesting and expiration dates of the option.

 

Risk-free Interest Rate:We base the risk-free interest rate used on the implied yield at the grant date of U.S. Treasury zero-coupon issues with a term approximately equal to the expected term of the stock-based award being valued.

 

Expected Stock Price Volatility:Because we are a company with very limited stock sales history (we have an Offering whereby we are selling stock directly to investors without the assistance of an investment bank nor are we registered on any market or public exchange), we use a blended average weekly volatility of certain publicly traded peer companies. We believe that the use of this blended average peer volatility is reflective of market conditions and a reasonable indicator of our expected future volatility.

 

Dividend Yield:Because we have never paid a dividend and do not expect to begin doing so in the foreseeable future, we have assumed a 0% dividend yield in valuing our stock-based awards.

 

The grant-date fair value of the award is recognized as expense over the requisite service period using the straight-line method.

 

Fair Value Measurements

 

FASB ASC 820: “Fair Value Measurements and Disclosures” defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The standard describes three levels of inputs that may be used to measure fair value:

 

Level 1: Quoted prices in active markets for identical assets or liabilities.

 

Level 2: Inputs other than quoted prices included within Level 1 which are either directly or indirectly observable.

 

Level 3: Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

 

A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement.

 

Derivative Financial Instruments

 

We do not use derivative instruments to hedge exposures to cash flow, market or foreign currency risk. The terms of convertible preferred stock and convertible notes that we have issued in the past were reviewed to determine whether or not they contain embedded derivative instruments that are required by ASC 815: “Derivatives and Hedging” to be accounted for separately from the host contract and recorded at fair value. In addition, freestanding warrants are also reviewed to determine if they achieve equity classification.

  

Liquidity

 

We have historically incurred recurring losses from operations and we may continue to generate negative cash flows as we implement our business plan. Our consolidated financial statements are prepared using GAAP as applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business.

 

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As of December 31, 2018, we had cash on hand of $4,703,834. We believe our cash is sufficient to fund our operations through April 30, 2020 when taking into account various sources of funding and cash received from continued commercial sales transactions. We intend that the primary means for raising funds will be through our Offering of common stock through April 12, 2019 and under the Dow Facility. As of April 2, 2019, the Company sold 2,415,000 shares under the Registration Statement at a price of $8.00 per share for proceeds of $19,320,000. Additionally, we have available to us $5 million of proceeds from the Dow Facility available to us now that we have raised in excess of $10,000,000 from our IPO. Taking into account the cash position at March 28, 2019 noted above, we believe that we can fund our operations including planned capital expenditures through April 30, 2020.

 

There has been no public market for our securities and a public market may never develop, or, if any market does develop, it may not be sustained. Our common stock is not currently quoted on or traded on any exchange or on any over-the-counter market. In the event we are unable to fund our operations from existing cash on hand, operating cash flows, additional borrowings or raising equity capital, we may be forced to reduce our expenses, slow down our growth rate, or discontinue operations. Our condensed consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might be necessary should we be unable to continue as a going concern.

 

Recent Accounting Pronouncements 

 

On February 24, 2016, the FASB issued ASU No. 2016-02, Leases, requiring lessees to recognize a right-of-use asset and a lease liability on the balance sheet for all leases with the exception of short-term leases. For lessees, leases will continue to be classified as either operating or finance leases in the income statement. Lessor accounting is similar to the current model but updated to align with certain changes to the lessee model. Lessors will continue to classify leases as operating, direct financing or sales-type leases. The effective date of the new standard for public companies is for fiscal years beginning after December 15, 2018 and interim periods within those fiscal years. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition and requires application of the new guidance at the beginning of the earliest comparative period presented.  

 

With the exception of the standards discussed above, we believe there have been no new accounting pronouncements effective or not yet effective which have significance, or potential significance, to our Consolidated Financial Statements.

 

JOBS Act

 

In April 2012, the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, was enacted. Section 107 of the JOBS Act provides that an “emerging growth company,” or EGC, can take advantage of the extended transition period for complying with new or revised accounting standards. Thus, an EGC can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this extended transition period and, as a result, we will adopt new or revised accounting standards on the relevant dates on which adoption of such standards is required for other public companies.

 

We are in the process of evaluating the benefits of relying on other exemptions and reduced reporting requirements under the JOBS Act. Subject to certain conditions, as an EGC, we intend to rely on certain exemptions, including exemptions from the requirement to provide an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act and from any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, known as the auditor discussion and analysis. We will remain an EGC until the earlier of: the last day of the fiscal year in which we have total annual gross revenues of $1.07 billion or more; the last day of the fiscal year following the fifth anniversary of the date of the completion of our Offering; the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or the date on which we are deemed to be a large accelerated filer under the rules of the SEC.

 

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Results of Operations for the Year Ended December 31, 2018 Compared with the Year Ended December 31, 2017

 

The following table summarizes the results of our operations for the years ended December 31, 2018 and 2017.

 

   Year Ended December 31  Change 2018 – 2017
   2018  2017  $  %
Total Revenues  $4,301,820   $1,805,133    2,496,687    138.3 
Cost of Goods Sold   5,506,321    2,652,776    2,853,545    107.6 
Gross Loss   (1,204,501)   (847,643)   (356,858)   42.1 
Research & Development Expense   1,414,259    923,419    490,840    53.2 
Sales, General & Administrative Expense   4,972,595    4,434,322    538,273    12.1 
Total Operating Expense   6,386,854    5,357,741    1,029,113    19.2 
Operating Loss   (7,591,355)   (6,205,384)   (1,385,971)   22.3 
Other Expense   (328,261)   (373,309)   45,048    (12.1)
Net Loss  $(7,919,616)  $(6,578,693)   (1,340,923)   20.4 

 

Revenues

 

Revenues for the years ended December 31, 2018 and 2017, by category, are shown below.

 

   Year Ended December 31  Change 2018 – 2017
   2018  2017  $  %
Product Sales  $4,125,567   $1,605,178    2,520,389    157.0 
Grants   176,253    124,955    51,298    41.1 
Licensing Revenues   —      75,000    (75,000)   (100.0)
Total  $4,301,820   $1,805,133    2,496,687    138.3 

 

Product sales consist of two broad categories: (1) material sold to customers for research or development purposes; and (2) production orders for customers. Typically, the order sizes for the first category are relatively small, however we expect orders in the second category to be much larger in the future. For the year ended December 31, 2018, product sales increased by $2,520,389 or 157% from the comparable period in the prior year. The main reason for the increase in product sales was customers moving through development programs towards commercialization, requiring larger quantities of our materials for advanced testing, pilot production and commercial-scale production activities. We believe that those customers already in production will increase their order volume as demand increases and other customers will begin to move into commercial volume production as they gain more experience in working with our materials and engage their own customers.

 

Order Summary

 

The table below shows a comparison of domestic and international orders fulfilled (note that this does not include orders for free samples). The table also includes the average order size for product sales. These numbers indicate that our customer base remains active with research and development projects that use our materials, but that the order size is increasing as more customers approach commercial status with products using our materials. The average order size for the product revenue during the year ended December 31, 2018 increased by 132% as compared to the same period in 2017. Although the average size of these orders is still relatively small, we have begun shipping in metric ton quantities to multiple customers.

 

   Year Ended December 31  Change 2018 – 2017
   2018  2017  # of Orders  %
Number of orders – domestic   122    114    8    7 
Number of orders – international   168    146    22    15 
Number of orders – total   290    260    30    12 
Average order size – $  $14,303   $6,174   $8,129    132%

 

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Grant Revenue

 

Grant revenues of $176,253 in 2018 consisted of proceeds from sources as shown in the table below. The largest of these sources in 2018 came from the State of Michigan. In 2018, an agreement was initiated with the Michigan Strategic Fund relating to our new manufacturing facility in Mason, Michigan. Grant contract revenue is recognized using the milestone method as milestones are achieved. Milestone 1 of the agreement was met in 2018 and recorded as grant revenue in the amount of $173,000. In June 2016, a $150,000, nine-month DOE Phase I Small Business Innovation Research (SBIR) grant was awarded to develop and demonstrate a composite anode material that delivers improved capacity retention during full lithium-ion battery charge to further the nation’s energy strategy to reduce reliance on fossil fuels and improve the environment. As of the grant expiration date of March 14, 2017, $149,979 had been billed against it, $93,747 of which was billed in 2017. The DOE grant is considered billed in full and completed. The table below shows the components of grant revenue:

 

   Year Ended December 31
   2018  2017
State of Michigan  $173,000   $—   
US Department of Energy   —      93,747 
Daimler / University of Michigan   —      31,208 
Michigan Economic Development Corporation   3,253    —   
Total  $176,253   $124,955 

 

Licensing Revenue

 

The Company and POSCO, a shareholder of the Company, entered into a license agreement dated June 8, 2011, pursuant to which POSCO agreed to pay a minimum annual royalty of $100,000 per year if certain circumstances existed, among other things. The Company believed that this minimum annual royalty became due annually beginning on February 28, 2015, and up until June 30, 2017, recorded this royalty revenue at a rate of $25,000 per quarter. POSCO disputed its obligation to pay this minimum annual royalty and did not pay the royalty in any prior year. We filed a demand for arbitration in the International Court of Arbitration on March 9, 2016, in an effort to resolve the dispute. Pursuant to a confidential settlement, on November 3, 2017, the Company and POSCO agreed to settle the dispute and to dismiss the arbitration. Amounts owed to us were paid by POSCO in November 2017. There were no amounts due and recorded on our balance sheet at December 31, 2018.

 

Cost of Goods Sold

 

We use a standard cost system to estimate the direct costs of products sold. Variances between the standard costs and the actual costs are then properly capitalized to the inventories and expensed to cost of goods sold. Direct costs include estimates of raw material costs, packaging, freight charges net of those billed to customers, and an allocation for direct labor and manufacturing overhead. Because of the nature of our production processes, there is a substantial fixed manufacturing expense requirement that represents the ongoing cost of maintaining production facilities that are not directly related to products sold, so we use a “full capacity” allocation of overhead based on an estimate of what product costs would be if the manufacturing facilities were operating on a full-time basis and producing products at the designed capacity.

 

Gross Profit Summary

 

The following table shows the relationship of direct costs to product sales for the years ended December 31, 2018 and 2017:

 

Gross Profit Summary

 

    Year Ended December 31     Change 2018 – 2017  
    2018     2017     $     %  
Product Sales   $ 4,125,567     $ 1,605,178       2,520,389        157.0  
Direct Costs     2,344,937       911,115       1,433,822       157.4  
Direct Cost Margin     1,780,630       694,063       1,086,567       156.6  
% of Sales     43.2 %     43.2 %                
                                 
Unallocated Manufacturing Expense     3,161,384       1,741,661       1,419,723       81.5  
Gross Loss on Product Sales   $ (1,380,754 )   $ (1,047,598 )     (333,156     31.8  

 

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We believe that the fluctuations in gross loss on product sales and direct cost from period to period are not indicative of future margins because of the relatively small size of our sales in comparison to our future expectations. Direct costs vary depending on the size of an order, the specific products being ordered, and other factors like shipping destination (which on small orders can represent a significant percentage of the cost).

 

Costs associated with grant revenue tend to be a mixture of facilities use, management time, labor from scientists, technicians and manufacturing personnel, and some supplies. Because of the difficulty of developing and maintaining an administrative system to gather direct costs for grants, together with the relatively small size of grant revenue, we do not track direct costs for grant revenue as a separate cost category. Therefore, we do not calculate direct cost margins associated with grant revenue but, rather, we view this revenue as being supported by indirect corporate expenses.

  

The remaining “non-direct” costs of operating our manufacturing facilities are recorded as unallocated manufacturing expenses. These expenses include personnel costs, rent, utilities, indirect supplies, depreciation, and related indirect expenses. Unallocated manufacturing expenses are expensed as incurred. We allocate these costs to direct product costs based on the proportion of these expenses that would be representative direct product costs if we were operating our factory at full capacity.

 

For the year ended December 31, 2018, unallocated manufacturing expenses increased by 82% to $3,161,384 as compared to $1,741,661 in 2017. The increase of $1,419,723 is largely due to higher levels of manufacturing overhead expense due to capacity expansion at our new Mason, Michigan facility as we prepare for and fulfill higher volume commercial orders.

 

Research and Development Expenses

 

Research and development expenses for the year ended December 31, 2018 increased by 53% to $1,414,259 as compared to $923,419 for the year ended December 31, 2017. The increase of $490,840 is largely due to the hiring of additional personnel to increase our core ability to deliver improved applications to customers.

  

Sales, General and Administrative Expenses

 

During 2018, we incurred selling, general and administrative expenses (SG&A) of $4,972,595. This is an increase of $538,273 or 12% from 2017, which is comprised of an increase of $1,039,344 in SG&A expenses to support both increased production and customer needs and a decrease of $501,071 due to the non-recurring nature of a one-time, non-cash charge recorded in July 2017 to account for the cancellation and replacement of certain stock options. See Note 12 to the financial statements in this report for further discussion of the 2017 stock option modifications. As we continue to grow and gain traction in the marketplace, we expect that our SG&A expenses will fluctuate but should stabilize and become more fixed in nature as we achieve economies of scale.

 

Other Income (Expense)

 

The following table shows a comparison of other income and expense by major expense component for the years ended December 31, 2018 and 2017:

 

   Year Ended December 31  Change 2018 – 2017
   2018  2017  $  %
Interest expense, net  $(328,261)  $(254,091)   (74,170)   29.1 
Gain (loss) from change in fair value of derivative liability - warrants   —      (46,612)   46,612    (100.0)
Government incentives, net   —      (72,606)   72,606    (100.0)
Total  $(328,261)  $(373,309)   45,048    12.1 

 

Interest expense, net of interest income in the year ended December 31, 2018, increased by $74,169 compared to 2017. The net increase in expense reflects a full year of interest on the advances on the Dow Facility that occurred throughout 2017, which was partially offset by principal reductions (pay downs) of our capital lease commitments.

34

 

 

Gain/(loss) from changes in the fair value of derivative liability warrants from the previous valuation period are characterized as other (expense)/other income on our Statement of Operations as a result of the GAAP requirement to use variable accounting for such instruments. These values fluctuate from period to period as a result of updating inputs used in the trinomial lattice model used to value such warrants, including risk free rate, volatility, remaining term of each warrant, and the underlying stock price assumption used in such calculations. In 2017 we implemented ASU 2017-11 and reclassified 224,897 warrants related to our Series B Preferred Stock issuance (subsequently converted into common stock) from derivative liabilities to equity and we are no longer required to record the change in fair values for these instruments. See Note 2 and Note 9 to the financial statements in this report for further information.

 

Government incentives include accruals for incentive awards from state and local government entities relating to new hires during the period indicated, net of any true up of previous accruals to reflect actual payments. In 2016, we accrued $74,000 for expected incentive awards from the Michigan Economic Growth Authority (MEGA), based on our experience in receiving such incentive awards over the previous four years for our hiring practices. Upon review by MEGA in May 2017, our 2016 incentive was declined, because of our failure to meet a baseline assumed hiring threshold, which we missed by two full-time equivalent employees by December 31, 2016. Since 2016 was the final year for this incentive award program, we wrote off this previously accrued award in 2017, and thus we recorded a loss of $74,024 in the year ended December 31, 2017. This loss was offset by a small state incentive, $1,418, received in 2017.

 

Cash Flow Summary

 

The following condensed cash flow statement compares cash flow from operating, investing, and financing activities for the year ended 2018 and 2017.

 

    Year Ended December 31     Change 2017 – 2018  
    2018     2017     $     %  
Cash, cash equivalents and restricted cash, beginning of period   $ 3,041,590     $ 1,980,842       1,060,748       53.6  
Net Cash provided (used) by:                                
Operating activities     (5,643,238 )     (4,623,703 )      (1,019,535 )     22.1  
Investing Activities     (3,385,114 )     (743,196 )     (2,641,918 )     355.5  
Financing Activities     10,880,736       6,427,647       4,453,089       69.3  
Net increase (decrease) in cash     1,852,384       1,060,748       791,636       74.6  
Cash, end of period   $ 4,893,974     $ 3,041,590       1,852,384       60.9  

 

 

(1)  Restricted cash for a letter of credit, beginning of period above were $195,792 and $195,499 for the twelve months ended December 31, 2018 and 2017, respectively. Restricted cash  which is included in cash at the end of the year for a letter of credit, were $190,140 and $195,792 for the twelve months ended December 31, 2018 and 2017, respectively.

 

Net cash used in operating activities for the year ended December 31, 2018 and 2017 was $5,643,238  and $4,623,703, respectively. Net cash used by operating activities increased 22% during 2018 as compared to 2017 primarily due to higher levels of manufacturing overhead expense as we prepared for and fulfilled higher volume commercial orders.

 

Investing activities for the year ended December 31, 2018 included net capital expenditures for the purchase of property and equipment of $3,209,632 and $175,482 for intellectual property as compared with $602,239 for property and equipment and $140,957 for intellectual property during the same period in 2017. These levels of capital expenditures are higher as we have expanded production capacity in 2018 necessary to meet anticipated customer  orders for those customers who are moving into commercialization of products containing our materials.

 

Financing activities provided a net increase in cash of $10,880,736 and $6,427,647 for the year ended December 31, 2018 and 2017, respectively. For the year ended December 31, 2018 gross proceeds from the issuance of common stock was $11,175,344 and stock issuance expenses were $102,880 as compared to proceeds from the issuance of common stock for the year ended December 31, 2017 of $3,665,400 and stock issuance expenses of $237,227. No new loan proceeds were received from the Dow Facility in 2018. Financing activities for the year ended December 31, 2017 included $3,000,000 of loan proceeds from the Dow Facility (see Note 7 of our financial statements in this report).  

 

Liquidity and Capital Expenditures

 

We have historically incurred losses from operations and we may continue to generate negative cash flows as we implement our business plan. Our condensed consolidated financial statements are prepared using US GAAP as applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business.

 

In December 2016, we entered into the Dow Facility to provide up to $10 million of secured debt financing at an interest rate of 5% per year, drawable at our request under certain conditions. We received $2 million at closing, $1 million on each of July 18, 2017, September 22, 2017 and December 4, 2017. After December 1, 2017, an additional $5 million became available under the Dow Facility as a result of the Company having raised $10 million of equity capital after October 31, 2016. We have now raised in excess of $10,000,000 from our IPO since November 1, 2016, and thus have met this requirement. Therefore, the remaining $5 million under the Dow Facility is now available to us.

 

As of December 31, 2018, we had cash on hand of $4,703,834.  We believe our cash is sufficient to fund our operations through April 30, 2020 when taking into account various sources of funding and cash received from continued commercial sales transactions. We intend that the primary means for raising funds will be through our Offering of common stock until April 12, 2019 and the additional $5 million of proceeds from the Dow Facility available to us as of September 30, 2018. Taking into account the cash position at March 28, 2019 noted above, we believe that we can fund our operations including planned capital expenditures through April 30, 2020.

 

In the event we are unable to fund our operations from existing cash on hand, operating cash flows, additional borrowings or raising equity capital, we may be forced to reduce our expenses, slow down our growth rate, or discontinue operations. Our condensed consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might be necessary should we be unable to continue as a going concern.

 

Off-Balance Sheet Arrangements

 

We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition or results of operations.

 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS

 

Not applicable. 

 

 

35

 

 

ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

XG SCIENCES, INC.

Consolidated Financial Statements

INDEX TO FINANCIAL STATEMENTS

 

TABLE OF CONTENTS

 

Consolidated Financial Statements as of and for the years ended December 31, 2018 and 2017 36
Report of Independent Registered Public Accounting Firm 37
Consolidated Balance Sheets 38
Consolidated Statements of Operations 39
Consolidated Statement of Changes in Stockholders’ Equity (Deficit) 40
Consolidated Statements of Cash Flows 41
Notes to Consolidated Financial Statements 42

 

     

36

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Shareholders and Board of Directors of

XG Sciences, Inc.

Opinion on the Consolidated Financial Statements

We have audited the accompanying balance sheet of XG Sciences, Inc. (the Company) as of December 31, 2018, the related statements of operations, stockholders’ equity and cash flows, for the year then ended, and the related notes (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018, and the results of its operations and its cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America.

Basis for Opinion

These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audit. 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 U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit 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 audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.

 

/s/ RSM US LLP

 

We have served as the Company’s auditor since 2019.

 

Detroit, Michigan

 

April 1, 2019

 

37

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Shareholders and Board of Directors of

XG Sciences, Inc.

Opinion on the Consolidated Financial Statements

We have audited the accompanying consolidated balance sheet of XG Sciences, Inc. (the "Company") as of December 31, 2017, and the related consolidated statement of operations, changes in stockholders' equity (deficit) and cash flows for the year then ended, 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, 2017 and the results of their operations and cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America.

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 audit. 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 audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the 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 audit 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 audit 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 included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audit 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 audit provide a reasonable basis for our opinion.

Emphasis of a Matter

As discussed in Note 2 to the financial statements, the Company has changed its method of accounting for warrants in 2017 due to the adoption of Accounting Standards Update No. 2017-11, Earnings Per Share, Distinguishing Liabilities From Equity, Derivatives and Hedging.

We served as the Company's auditor from 2012 to 2018.

/s/ Frazier & Deeter, LLC                                            

Frazier & Deeter, LLC

Tampa, FL

 

April 2, 2018

 

38

 

 

XG SCIENCES, INC.
CONSOLIDATED BALANCE SHEETS AS OF DECEMBER 31, 2018 AND 2017

 

   2018  2017
ASSETS          
CURRENT ASSETS          
Cash  $4,703,834   $2,845,798 
Accounts receivable, less allowance for doubtful accounts of $85,000 in 2018 and $40,000 in 2017, respectively   859,054    468,623 
Inventories   660,217    171,864 
Other current assets   114,453    15,781 
Total current assets   6,337,558    3,502,066 
           
PROPERTY, PLANT AND EQUIPMENT, NET   4,223,650    2,601,571 
           
RESTRICTED CASH FOR LETTER OF CREDIT   190,140    195,792 
           
LEASE DEPOSIT   20,156    20,156 
           
INTANGIBLE ASSETS, NET   690,646    571,938 
           
TOTAL ASSETS  $11,462,150   $6,891,523 
LIABILITIES AND STOCKHOLDERS’ EQUITY          
           
CURRENT LIABILITIES          
Accounts payable  $1,102,910   $561,368 
Other current liabilities   429,573    296,709 
Deferred revenue   832    7,298 
Current portion of long-term debt    196,723    —   
Current portion of capital lease obligations   3,613    118,553 
Total current liabilities   1,733,651    983,928 
           
LONG-TERM LIABILITIES          
Long-term portion of capital lease obligations   11,914    15,527 
Long term debt   4,725,866    4,794,596 
Total long-term liabilities   4,737,780    4,810,123 
           
TOTAL LIABILITIES   6,471,431    5,794,051 
           
STOCKHOLDERS’ EQUITY          
Series A convertible preferred stock, 3,000,000 shares authorized, 1,890,354 and 1,857,816 shares issued and outstanding, liquidation value of $22,684,248 and $22,293,792 at December 31, 2018 and December 31, 2017, respectively   22,307,480    21,917,046 
Series B Preferred Stock, 1,500,000 shares authorized, 0 shares issued and outstanding, liquidation value of $0 at December 31, 2018 and December 31, 2017, respectively   —      —   
Common stock, no par value, 25,000,000 shares authorized, 3,760,268 and 2,353,350 shares issued and outstanding at December 31, 2018 and December 31, 2017, respectively   30,268,476    19,116,012 
Additional paid-in capital   8,101,923    7,831,958 
Accumulated deficit   (55,687,160)   (47,767,544)
Total stockholders’ equity   4,990,719    1,097,472 
           
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY  $11,462,150   $6,891,523 

 

See notes to consolidated financial statements

 

39

 

 

XG SCIENCES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

   2018  2017
REVENUE          
Product sales  $4,125,567   $1,605,178 
Grants   176,253    124,955 
Licensing revenue   —      75,000 
Total revenues   4,301,820    1,805,133 
           
COST OF GOODS SOLD          
Direct costs   2,344,937    911,115 
Unallocated manufacturing expenses   3,161,384    1,741,661 
Total cost of goods sold   5,506,321    2,652,776 
           
GROSS LOSS   (1,204,501)   (847,643)
           
OPERATING EXPENSES          
Research and development   1,414,259    923,419 
Sales, general and administrative   4,972,595    4,434,322 
Total operating expenses   6,386,854    5,357,741 
           
OPERATING LOSS   (7,591,355)   (6,205,384)
           
OTHER EXPENSE          
Interest expense, net   (328,261)   (254,091)
Gain (loss) from change in fair value of derivative liability – warrants   —      (46,612)
Government incentives, net   —      (72,606)
           
Total other expense   (328,261)   (373,309)
           
NET LOSS  $(7,919,616)  $(6,578,693)
           
WEIGHTED AVERAGE NUMBER OF SHARES OUTSTANDING – Basic and diluted   3,396,585    2,077,870 
NET LOSS PER SHARE – Basic and diluted  $(2.33)  $(3.17)

 

See notes to consolidated financial statements

 

40

 

  

XG SCIENCES, INC.

CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)

FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

   Preferred stock (A)  Preferred stock (B)  Common stock  Additional
paid-in
  Accumulated   
   Shares  Amount  Shares  Amount  Shares  Amount  capital  deficit  Total
Balances, December 31, 2016   1,829,256   $21,634,597    —      —      1,885,175   $15,647,839   $6,490,230   $(48,899,530)  $(5,126,864)
Reclassification of Derivative Liability balance at December 31, 2016  to Equity, see note 2   —      (60,237)   —      —      —      —      —      7,710,679    7,650,442 
Balances, December 31, 2016, (Restated) – see note 2   1,829,256    21,574,360    —      —      1,885,175    15,647,839    6,490,230    (41,188,851)   2,523,578 
Stock issued for cash   —      —      —      —      458,175    3,665,400    —      —      3,665,400 
Stock issuance fees and expenses   —      —      —      —      —      (237,227)   —      —      (237,227)
Reclassification of Derivative Liability to Equity – see note 2   —      —      —      —      —      —      296,419    —      296,419 
Warrants issued with Dow Financing   —      —      —      —      —      —      229,225    —      229,225 
Preferred stock issued to pay capital lease obligations   28,560    342,686    —      —      —      —      —      —      342,686 
Stock-based compensation   —      —      —      —      10,000    40,000    816,084    —      856,084 
Net loss   —      —      —      —      —      —      —      (6,578,693)   (6,578,693)
                                              
Balances, December 31, 2017   1,857,816   $21,917,046    —     $—      2,353,350   $19,116,012   $7,831,958   $(47,767,544)  $1,097,472 
Stock issued for cash   —      —      —      —      1,396,918    11,175,344    —      —      11,175,344 
Stock issuance fees and expenses   —      —      —      —      —      (102,880)   —      —      (102,880)
Preferred stock issued to pay capital lease obligations   32,538    390,434    —      —      —      —      —      —      390,434 
Stock-based compensation   —      —      —      —      10,000    80,000    269,965    —      349,965 
Net loss   —      —      —      —      —      —      —      (7,919,616)   (7,919,616)
Balances, December 31, 2018   1,890,354   $22,307,480    —      —      3,760,268   $30,268,476   $8,101,923   $(55,687,160)  $4,990,719 

 

See notes to consolidated financial statements

 

41

 

 

XG SCIENCES, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

FOR THE YEARS ENDED DECEMBER 31, 2018 AND 2017

 

   2018  2017
CASH FLOWS FROM OPERATING ACTIVITIES          
Net loss  $(7,919,616)  $(6,578,693)
Adjustments to reconcile net loss to net cash used in operating activities:          
Depreciation   1,696,334    887,089 
Amortization of intangible assets   56,776    47,038 
Loss on disposal of equipment and intangible assets   45,130    —   
Provision for bad debts   45,000    30,000 
Stock-based compensation expense   349,965    856,084 
Non-cash interest expense   331,526    255,221 
Loss (gain) from change in fair value of derivative liability – warrants   —      46,612 
Non-cash equipment rent expense   106,164    —   
(Increase) Decrease in:          
Accounts receivable   (435,431)   (399,545)
Inventories   (488,353)   34,109 
Incentive refund receivable   —      165,635 
Other current assets   (98,672)   138,557 
Increase (Decrease) in:          
Accounts payable   541,542    (170,150)
Accrued compensation   113,282    74,173 
Other current liabilities   19,582    (10,703)
Deferred revenue   (6,466)   870 
NET CASH USED IN OPERATING ACTIVITIES   (5,643,238)   (4,623,703)
           
CASH FLOWS FROM INVESTING ACTIVITIES          
Purchases of property and equipment   (3,209,632)   (602,239)
Purchases of intangible assets   (175,482)   (140,957)
NET CASH USED IN INVESTING ACTIVITIES   (3,385,114)   (743,196)
           
CASH FLOWS FROM FINANCING ACTIVITIES          
Repayments on line of credit   (178,490)   —   
Repayments of capital lease obligations   (13,238)   (526)
Proceeds from long-term debt   —      3,000,000 
Proceeds from issuance of common stock   11,175,344    3,665,400 
Common stock issuance fees and expenses   (102,880)   (237,227)
NET CASH PROVIDED BY FINANCING ACTIVITIES   10,880,736    6,427,647 
           
NET INCREASE IN CASH, CASH ON HAND AND CASH EQUIVALENTS   1,852,384    1,060,748 
CASH, CASH ON HAND AND CASH EQUIVALENTS AT BEGINNING OF PERIOD   3,041,590    1,980,842 
           
CASH, CASH ON HAND AND CASH EQUIVALENTS AT END OF PERIOD  $4,893,974   $3,041,590 
           
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:          
           
Cash paid for interest  $1,241   $—   
Value of preferred stock issued for AAOF capital lease obligations   390,434    342,686 
Property and equipment additions under capital leases   —      18,975 
Reclassification of derivative liability warrants to equity   —      296,419 
Warrants issued with Dow financing   —      229,225 

 

See notes to consolidated financial statements

 

42

 

 

NOTE 1 — NATURE OF BUSINESS AND BASIS OF PRESENTATION

 

XG Sciences, Inc., a Michigan company located in Lansing, Michigan and its subsidiary, XG Sciences IP, LLC (collectively referred to as “we”, “us”, “our”, or the “Company”) manufactures graphene nanoplatelets, using two proprietary manufacturing processes to split natural flakes of crystalline graphite into very small and thin particles, which we sell as xGnP® graphene nanoplatelets. We sell our nanoparticles in the form of bulk powders or dispersions to other companies for use as additives to make composite and other materials with specially engineered characteristics. We also manufacture and sell integrated, value-added products containing these graphene nanoplatelets such as greases, composites, thin sheets, inks and coating formulations that we sell to other companies. Additionally, we license our technology to other companies in exchange for royalties and other fees.

 

Basis of Presentation

 

The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“US GAAP”)..

 

The consolidated financial statements include the accounts of XG Sciences, Inc. and our wholly owned subsidiary, XGS IP, LLC. We operate as one reportable segment. All intercompany accounts, transactions and profits have been eliminated in consolidation.

 

Going Concern and Liquidity

 

We have historically incurred losses from operations and we may continue to generate negative cash flows as we implement our business plan. Our consolidated financial statements are prepared using US GAAP as applicable to a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business.

 

In December 2016, The Dow Chemical Company (“Dow”) agreed to provide up to $10 million of secured debt financing at an interest rate of 5% per year, drawable at our request under certain conditions pursuant to a draw loan note and agreement (the "Dow Facility"). We received $2 million at closing, $1 million on each of July 18, 2017, September 22, 2017, and December 4, 2017. We currently have an additional $5 million which became available under the Dow Facility since we have raised $10 million of equity capital after October 31, 2016. 

 

As of December 31, 2018 we had cash on hand of $4,703,834. We believe our cash is sufficient to fund our operations through April 2020 when taking into account various sources of funding and cash received from continued commercial sales transactions. We intend that the primary means for raising funds will be through our Offering of common stock until April 12, 2019 and the additional $5 million of proceeds from the Dow Facility available to us now that we have raised $10 million of equity capital as measured in the period beginning on November 1, 2016. Taking into account the cash position at March 28, 2019, noted above, we believe that we can fund our operations including planned capital expenditures through April 30, 2020.

 

We filed an Registration Statement for an Offering of common stock on Form S-1, which was declared effective April 13, 2016 and was amended with Post-Effective Amendment No. 1 declared effective August 26, 2016, Post-Effective Amendment No. 2 declared effective August 31, 2016, Post-Effective Amendment No. 3 declared effective January 17, 2017, Post-Effective Amendment No. 4 dated April 12, 2017, Post-Effective Amendment No. 5 declared effective April 14, 2017 and Post-Effective Amendment No. 6 dated June1,2018 and declared effective June 26, 2018. No public market currently exists for the securities being offered. The Registration Statement registered for sale a total of 3,000,000 shares of common stock at a fixed price of $8.00 per share to the general public in a self-underwritten, best efforts offering.

.

There can be no assurance that we will be able to raise additional equity capital in the Offering or in subsequent equity offerings or that the terms and conditions of any future financings will be workable or acceptable to us and our shareholders. In the event we are unable to fund our operations from existing cash on hand, operating cash flows, additional borrowings or raising equity capital, we may be forced to reduce our expenses, slow down our growth rate, or discontinue operations. Our consolidated financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might be necessary should we be unable to continue as a going concern.

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NOTE 2 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Use of Estimates

 

US GAAP requires management to make estimates, judgments and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, together with amounts disclosed in the related notes to the consolidated financial statements. Actual results and outcomes may differ from management’s estimates, judgments and assumptions. Significant estimates, judgments and assumptions used in these consolidated financial statements include, but are not limited to, those related to revenues, accounts receivable and related allowances, contingencies, useful lives and recovery of long-term assets, income taxes, and the fair values of stock-based compensation, warrants, and derivative financial instrument liabilities. These estimates, judgments, and assumptions are reviewed periodically and the effects of material revisions in estimates are reflected in the financial statements prospectively from the date of the change in estimate.

 

Revenue Recognition

 

Revenues are recognized at a point in time, typically when control of the promised goods is transferred to customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods. The Company does not recognize revenue in cases where collectability is not probable, and defers the recognition until collection is probable or payment is received.

 

The Company generally expenses sales commissions when incurred because the amortization period would have been one year or less. These costs are recorded within selling, general and administrative expenses. Customer deposits, deferred revenue and other receipts are deferred and recognized when the revenue is realized and earned.

 

Revenue related to licensing agreements is recorded upon substantial performance of the terms of the licensing contract. In the case of licensing arrangements that involve up-front payments, revenue is recorded when management determines that the appropriate terms of the contract have been fulfilled. For example, this may occur when technology has been transferred via written documents or, if training is involved, whenever all contracted training has occurred. In the case of licenses where product delivery is also embedded in the deliverable, a portion of revenue would be recognized when products are delivered.

 

We have also out-licensed certain of our intellectual property to licensees under terms and conditions of license agreements that specify the   intellectual property licensed, the territory, and the type of license. In exchange for these licenses, we have recorded revenues associated with the initial granting of the license and expect to receive royalties based on sales of products produced under these licenses. License revenues are recorded to reflect our performance of requirements under these license agreements. In addition, we record royalty revenues from licensees at the time they are earned.

 

Grant contract revenue is recognized over the life of the contracts as the services are performed.

 

Amounts received in excess of revenues earned are recorded as deferred revenue.

 

Cost of Products Sold

 

We use a standard cost system to estimate the direct costs of products sold. Variances between the standard costs and the actual costs are then properly prorated to the inventories and to the cost of goods sold. Direct costs include estimates of raw material costs, packaging, freight charges net of those billed to customers, and an allocation for direct labor and manufacturing overhead. Because of the nature of our production processes, there is a substantial fixed manufacturing expense requirement that represents the ongoing cost of maintaining production facilities that are not directly related to products sold, so we use a “full capacity” allocation of overhead based on an estimate of what product costs would be if the manufacturing facilities were operating on a full-time basis and producing products at the designed capacity. 

The remaining costs of operating the Company’s manufacturing facilities are recorded as Unallocated Manufacturing Expenses. Manufacturing expense includes the costs of operating our manufacturing facilities including personnel costs, rent, utilities, indirect supplies, depreciation, and related indirect expenses. Manufacturing expenses are expensed as incurred.

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Research and Development

 

Research and development expenses include the compensation costs of research personnel, laboratory rent and utilities, depreciation of laboratory equipment, travel and laboratory supplies and are expensed as incurred.

 

General and Administrative Expense

 

General and administrative expenses include the compensation costs of personnel, rent, utilities, supplies, travel, depreciation of office equipment, and related expenses not included in other expense categories. General and administrative expenses also include non-cash compensation expenses related to the Company’s deferred compensation, management incentive bonus, and employee stock option programs.

 

Sales and Marketing Expense

 

Sales and marketing costs include compensation, travel, and business development expenses including free samples provided to customers. These costs are expensed as incurred. Product marketing allowances are recorded at the estimated out of pocket cost necessary to produce the product in the period the allowance is granted. Advertising costs are expensed at the time they are incurred and were not material for the years ended December 31, 2018 and 2017.

 

Income Taxes

 

It is our policy to provide for uncertain tax positions and the related interest and penalties based upon management’s assessment of whether a tax benefit is more likely than not to be sustained upon examination by tax authorities. To the extent that the probable tax outcome of these uncertain tax position changes, such changes in estimate will impact the income tax provision in the period in which such determination is made. At December 31, 2018, we believe we have appropriately accounted for any unrecognized tax benefits. We are not aware of any uncertain tax positions. To the extent we prevail in matters for which a liability for an unrecognized tax benefit is established or we are required to pay amounts in excess of the liability, our effective tax rate in a given financial statement period may be affected.

  

We account for income taxes using an asset and liability approach. The difference between the financial statement and tax basis of assets and liabilities is determined annually. Deferred income tax assets and liabilities are computed for those differences that have future tax consequences using the currently enacted tax laws and rates that apply to the periods in which they are expected to affect taxable income. Income tax expense is the current tax payable or refundable for the period plus or minus the net change in the deferred tax assets and liabilities. The deferred tax effects of state and local income taxes are considered immaterial and have not been recorded. Valuation allowances are established, if necessary, to reduce deferred tax assets to the amount that is estimated to be realized. Because of the uncertainty related to future realization of deferred tax assets (see Note 14), we have established a valuation allowance equal to one hundred percent of the deferred tax assets.

 

The Tax Cuts and Jobs Act (the Tax Act) was signed into law on December 22, 2017.  The law includes significant changes to the U.S. corporate income tax system, including a federal corporate rate reduction from 35% to 21%, limitations on the deductibility of interest expense and executive compensation, and the transition of U.S. international taxation from a worldwide tax system to a territorial tax system. The rate reduction resulted in a $5,635,000 decrease in both the deferred tax asset and valuation allowance with no net impact on the 2017 or 2018 financial statements.

 

The Company will continue to assess its provision for income taxes as future guidance is issued but does not currently anticipate significant revisions will be necessary. Any such revisions will be treated in accordance with the measurement period guidance outlined in Staff Accounting Bulletin No. 118.

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Net Income (Loss) Per Common Share

 

We compute net income or (loss) per share in accordance with Financial Accounting Standards Board (“FASB”) Accountings Standards Codification (“ASC”) Topic 260: Earnings Per Share. Under the provisions of ASC 260, basic net income (loss) per share is computed by dividing the net income (loss) available to common stockholders by the weighted average number of common shares outstanding during the period. Diluted net loss per share is computed using the weighted average number of shares outstanding during the applicable period, plus the effect of potentially dilutive securities. Potentially dilutive securities consist of shares potentially issuable pursuant to stock options and warrants as well as shares that would result from full conversion of all outstanding convertible securities. These potentially dilutive securities were 3,006,487 and 3,081,487 as of December 31, 2018 and 2017 and are excluded from diluted net loss per share calculations because they are anti-dilutive. As a result, for the years ended December 31, 2018 and 2017, basic and diluted net loss per share was the same.

 

Accounts Receivable and Allowance for Doubtful Accounts

 

Accounts receivable are stated at the amount management expects to collect from outstanding balances. Management provides for probable uncollectible amounts through a provision for bad debt expense and an adjustment to a valuation allowance based on their assessment of the current status of individual accounts. Balances that are still outstanding after management has used reasonable collection efforts are written off through a charge to the allowance account and a credit to accounts receivable.

 

Statements of Cash Flows

 

For the purposes of the statements of cash flows, we consider all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.

 

Fair Value of Financial Instruments and Concentrations of Credit Risk

 

Financial instruments, which potentially subject the Company to concentrations of credit risk, consist principally of cash and accounts receivable. The Company places its cash with FDIC insured financial institutions. Although such balances may exceed the federally insured limits at certain times, in the opinion of management they are subject to minimal risk.

 

The Company has established policies for extending credit to customers based upon factors including the customers’ credit worthiness, historical trends and other information. Nonetheless the collectability of accounts receivable is affected by regional economic conditions and other factors.

 

Inventory

 

Inventory consists of raw materials, consumables inventory and finished goods, all of which are stated at the lower of cost or net realizable value. Cost is determined on a first in, first out basis. We inventory media use in the production process of the newly constructed facility as a Consumables inventory.

 

Property and Equipment

 

Property and equipment are recorded at cost, net of accumulated depreciation and amortization. Property and equipment generally includes purchases of items with a cost greater than $3,000 and a useful life greater than one year. Depreciation and amortization are computed on the straight-line basis over the estimated useful lives of the assets. Leasehold improvements are amortized over the shorter of the related lease terms or their estimated useful lives. 

 

We periodically review the estimated useful lives of property and equipment. Changes to the estimated useful lives are recorded prospectively from the date of the change. Upon retirement or sale, the cost of the assets disposed of and the related accumulated depreciation are removed from the accounts and any resulting gain or loss is included in the statement of operations. Repairs and maintenance costs are expensed as incurred.

 

Recoverability and Impairment of Long-Lived Assets

 

Land, buildings and equipment and certain other assets, including definite-lived intangible assets, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. The judgments we make related to the expected useful lives of long-lived assets, definitions of lease terms and our ability to realize undiscounted cash flows in excess of the carrying amounts of these assets are affected by factors such as the ongoing maintenance and improvements of the assets, changes in economic conditions, changes in usage or operating performance, and other factors, such as our ability to sell our assets held for sale. As we assess the ongoing expected cash flows and carrying amounts of our long-lived assets, significant adverse changes in these factors could cause us to realize an impairment loss. Based on a review of operating results, we believe the carrying values of our long-lived assets are recoverable at December 31, 2018 and 2017.

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Per ASC 360-10-35-47, a long-lived asset to be abandoned is disposed of when it ceases to be used. In the year ended December 31, 2018, management has decided not to pursue the XGnP Leaf line business. The asset line has not produced a saleable product for over a year. The Leaf inventory value was written off at the end of 2017. Any sales recorded of Leaf products has been nominal and is from the existing inventory with no plans to restart production. It has determined that the seven (7) year estimated useful life determined in late 2013 should be revised to reflect the use of the asset over a shortened useful life ending December 31, 2018. Depreciation estimates have been revised in the current period in accordance with the change in accounting estimate standards at ASC 250-10-45-17 through 45-20. The amount of acceleration of depreciation reported in operations is $681,975. No prior period adjustments or restatements are required.

  

Intangible Assets

 

We have entered into a license agreement with Michigan State University under which we have licensed certain intellectual property in the form of patents and patent applications and invention disclosures. We are responsible for managing the patent process and ongoing filings for this licensed intellectual property and for bearing the cost thereof. We capitalize all costs related to the acquisition and ongoing administration of this license agreement and we amortize these costs over 15 years or the remaining life of the license agreement, whichever is shorter.

 

In addition to the costs of managing in-licensed intellectual property, we also file for patent protection for inventions and other intellectual property generated by our employees. All patents are evaluated for filing in international markets on a case-by-case basis and are filed in the United States and in selected international markets as considered appropriate. All external legal and filing costs related to patent applications, patent filings, ongoing registrations, overseas filings, and legal opinions related thereto are capitalized as intangible assets at cost and amortized over a period of 15 years from the date incurred, or the remaining useful life of the associated patent, whichever is shorter.

 

The cost of royalties or minimum payments specified under the license agreement for in-licensed technology is expensed as incurred.

 

Stock-Based Compensation

 

We recognize compensation expense in our statement of operations for all share-based option and stock awards, based on estimated grant-date fair values.

 

We estimate the grant-date fair value of stock-based compensation awards using the Black-Scholes option valuation model. This model is affected by the estimated value of our common stock on the date of the grant as well as assumptions regarding a number of highly complex and subjective variables. These variables include the expected term of the option, the exercise price, expected risk-free rates of return, the expected volatility of our common stock, and expected dividend yield, each of which is more fully described below. The assumptions for the estimated value of our common stock, expected term and expected volatility are the assumptions that most significantly affect the grant date fair value.

 

Expected Term: Because we have limited experience related to the exercise of employee stock options, we use the simplified method permitted by SEC Staff Accounting Bulletin Topic 14 to estimate the expected term of the options. The expected term of an option is estimated to be equal to the mid-point between the vesting and expiration dates of the option.

 

Risk-free Interest Rate: We base the risk-free interest rate used on the implied yield at the grant date of U.S. Treasury zero-coupon issues with a term approximately equal to the expected term of the stock-based award being valued.

 

Expected Stock Price Volatility:  Because we are a company with very limited stock sales history (we have an Offering whereby we are selling stock directly to investors without the assistance of an investment bank nor are we registered on any market or public exchange), we use a blended average weekly volatility of certain publicly traded peer companies. We believe that the use of this blended average peer volatility is reflective of market conditions and a reasonable indicator of our expected future volatility.

 

Dividend Yield: Because we have never paid a dividend and do not expect to begin doing so in the foreseeable future, we have assumed a 0% dividend yield in valuing our stock-based awards.

 

The grant-date fair value of the award is recognized as expense over the requisite service period using the straight-line method.

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Fair Value Measurements

 

FASB ASC 820: “Fair Value Measurements and Disclosures” defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The standard describes three levels of inputs that may be used to measure fair value:

 

Level 1: Quoted prices in active markets for identical assets or liabilities.

 

Level 2: Inputs other than quoted prices included within Level 1 which are either directly or indirectly observable.

 

Level 3: Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

 

A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement.

 

Derivative Financial Instruments

 

We do not use derivative instruments to hedge exposures to cash flow, market or foreign currency risk. The terms of convertible preferred stock and convertible notes that we issue are reviewed to determine whether or not they contain embedded derivative instruments that are required by ASC 815: “Derivatives and Hedging” to be accounted for separately from the host contract and recorded at fair value. In addition, freestanding warrants are also reviewed to determine if they achieve equity classification.

 

In July 2017, the FASB issued Accounting Standards Update No. 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities From Equity (Topic 480), Derivatives and Hedging (Topic 815) (“ASU 2017-11”). This update changes the classification analysis of certain equity-linked financial instruments with down-round features. When determining whether certain financial instruments should be classified as liabilities or equity instrument, securities with anti-dilution features no longer preclude equity classification when assessing whether the instrument is indexed to an entity’s own stock. As a result, freestanding equity-linked financial instruments (or embedded conversion features) would no longer be accounted for as derivative liabilities at fair value because of the existence of an anti-dilution feature. For freestanding equity classified financial instruments, ASU 2017-11 requires entities that present earnings per share in accordance with ASC Topic 260 to recognize the effect of the anti-dilution feature when it is triggered. That effect is treated as a dividend and as a reduction of income available to common shareholders in basic EPS. The guidance in this Update is effective for fiscal years, and interim period within those fiscal years, beginning after December 15, 2018, with earlier adoption permitted. When adopted in an interim period, any adjustments are reflected as of the beginning of the fiscal year that includes that interim period. We elected to early adopt ASU 2017-11 at September 30, 2017 by applying the standard retrospectively to outstanding financial instruments with a down round feature by means of a cumulative-effect adjustment to the Company’s beginning accumulated deficit as of January 1, 2017 (see Note 9). There were 972,720, warrants indexed to Series A Preferred Stock which were originally recorded as derivative liabilities because of their anti-dilution features. We chose to early adopt ASU 2017-11 because it permitted these warrants to be recorded as equity rather than derivative liabilities.

 

Fair Value Measurements

 

The liabilities measured at fair value on a recurring basis using significant unobservable inputs during the year ended December 31, 2018 and 2017 is as follows:

 

   2018  2017
Balance at January 1  $—     $249,807 
(Gain) Loss recognized in earnings   —      46,612 
Reclass to equity-Series B Amendment   —      (296,419)
Balance at December 1  $—     $—   

 

As mentioned in further detail in Notes 8 and 9, the warrants issued in connection with the Series B Units were classified as liabilities until September 30, 2017 when they were reclassified to equity after it was determined they no longer required liability classification.

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Recent Accounting Pronouncements

 

On February 24, 2016, the FASB issued ASU No. 2016-02, Leases, requiring lessees to recognize a right-of-use asset and a lease liability on the balance sheet for all leases with the exception of short-term leases. For lessees, leases will continue to be classified as either operating or finance leases in the income statement. Lessor accounting is similar to the current model but updated to align with certain changes to the lessee model. Lessors will continue to classify leases as operating, direct financing or sales-type leases. The effective date of the new standard for public companies is for fiscal years beginning after December 15, 2018 and interim periods within those fiscal years. Early adoption is permitted. The new standard must be adopted using a modified retrospective transition and requires application of the new guidance at the beginning of the earliest comparative period presented. We are currently evaluating the effect that the updated standard will have on our consolidated financial statements and related disclosures.

  

In August 2016, the FASB issued ASU No. 2016-18, Restricted Cash Flows. This update provides guidance on the presentation of restricted cash and restricted cash equivalents, which are now included with cash and cash equivalents when reconciling the beginning and ending cash amounts shown on the statements of cash flows. This update was effective for annual and interim periods beginning after December 15, 2017. We adopted these provisions in the second quarter of fiscal 2018 and using the retrospective transition method required under the standard, the Company has adjusted the presentation of its Condensed Consolidated Statements of Cash Flows for all periods presented. The adoption of ASU No. 2016-18 did not have any other impact on the Company’s Condensed Consolidated Financial Statements. 

 

With the exception of the standards discussed above, we believe there have been no new accounting pronouncements effective or not yet effective that have significance, or potential significance, to our Consolidated Financial Statements.

 

 NOTE 3 — INVENTORY 

 

Inventory is carried at the lower of cost or net realizable value. Cost is determined using the first-in, first-out method for raw material and finished goods inventory. Market is based on current replacement cost for raw materials and net realizable value for finished goods. Raw materials include all components used in the production of our finished goods, which are our four major product lines, bulk materials, energy storage materials, thermal management materials and inks and coatings.

 

The following amounts were included in inventory at the end of the period:

 

   Year Ended December 31
   2018  2017
Raw materials  $48,371   $39,841 
Consumables   188,764    —   
Finished goods   423,082    132,023 
Total  $660,217   $171,864 

 

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NOTE 4 — PROPERTY, PLANT AND EQUIPMENT

 

Property, plant and equipment as of December 31 consist of the following:

 

   Depreciable
life (years)
  2018  2017
Plant and equipment not yet placed in service       $1,194,417   $183,964 
Leasehold improvements   5-10    702,362    399,060 
Lab equipment   3-7    1,107,603    884,548 
Production and other equipment   3-7    7,487,707    6,264,376 
Software   3    14,177    39,144 
                
         10,506,266    7,771,092 
Less accumulated depreciation and amortization        (6,282,616)   (5,169,521)
                
Net property, plant and equipment       $4,223,650   $2,601,571 

 

 

Depreciation expense on property and equipment, including leased assets, for the years ended December 31, 2018 and 2017, was $1,696,334 $887,089, respectively. These amounts are included as part of our statement of operations in Cost of Goods Sold, Research and Development, and General and Administrative Expenses. For the year ended December 31, 2018, $1,607,313 was recorded in Cost of Goods Sold, $85,289 in Research and Development, and $3,732 in General and Administrative Expenses. For the year ended December 31, 2017, $770,290 was recorded in Cost of Goods Sold, $99,487 in Research and Development, $17,312 in General and Administrative Expenses. 

 

Plant, Property and Equipment under Capital Leases

 

   2018  2017
Lab equipment   —     $—   
Production and other equipment   —      448,293 
           
    —      448,293 
Less accumulated depreciation   —      (175,173)
           
Net property, plant and equipment under capital leases   —     $273,120 

 

As of December 31, 2018, there were no capital leases for property or equipment:

 

NOTE 5 — INTANGIBLE ASSETS

 

Intangible assets and related accumulated amortization as of December 31, 2018 and 2017 are as follows: 

 

   Year Ended December 31
   2018  2017
Licenses  $159,868   $137,533 
Patents   775,838    608,757 
Trademarks, other intangibles   5,698    19,631 
Total Carrying Amount   941,404    765,921 
           
Less: Accumulated Amortization – Licenses   (99,206)   (88,100)
Less: Accumulated Amortization – Patents   (148,500)   (103,217)
Less: Accumulated Amortization – Trademarks, other intangibles   (3,053)   (2,666)
Total Accumulated Amortization   (250,759)   (193,983)
           
Net Carrying Amount – Licenses   60,662    49,433 
Net Carrying Amount – Patents   627,338    505,540 
Net Carrying Amount – Trademarks, other intangibles   2,645    16,965 
Total Net Carrying Amount  $690,645   $571,938 

  

Amortization expense of $56,776 and $47,038 was recorded for the years ended December 31, 2018 and 2017, respectively. Amortization expense for the next five years is estimated to be approximately $55,000 annually.

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NOTE 6 — OTHER CURRENT LIABILITIES

 

As of December 31, 2018, and 2017, our and other current liabilities on our balance sheet consisted of the following:

 

   2018  2017
Accrued compensation  $331,589   $218,307 
Accrued expenses   59,818    3,089 
401(k) employer contribution expense   38,166    75,313 
           
Accounts payable and other liabilities  $429,573   $296,709 

 

NOTE 7 —WARRANTS AND FINANCING AGREEMENTS

 

Dow Facility

 

In December 2016, we entered into the Dow Facility which provides us with up to $10 million of secured debt financing at an interest rate of 5% per year, drawable at our request under certain conditions. We received $2 million at closing and an additional $1 million on July 18, 2017, September 22, 2017 and December 4, 2017, respectively. After December 1, 2017, an additional $5 million became available when we raised $10 million of equity capital after October 31, 2016. As of September 30, 2018, we had raised in excess of $10,000,000 from our IPO since November 1, 2016, and thus have met this requirement. Therefore, the remaining $5 million under the Dow Facility is now available to us.

 

The Dow Facility is senior to most of our other debt and is secured by all of our assets (Dow was subordinate only to the capital leases with AAOF which was paid off and closed December 31, 2018, see Note 13). The loan matures on December 1, 2021 (subject to certain mandatory prepayments based on our equity financing activities). When we raise a cumulative amount of equity capital exceeding $15 million, we are required to prepay an amount equal to 30% of the amount raised over $15 million, but less than $25 million. We began these prepayments on equity raised as of September 10, 2018. Interest is payable beginning January 1, 2017 although we have elected, per the loan documents, to capitalize the interest as part of the outstanding debt through January 1, 2019. Beginning April 1, 2019, current interest is payable in cash on the first day of each quarter.

 

Dow received warrant coverage of one share of common stock for each $40 in loans received by us, equating to 20% warrant coverage, with an exercise price of $8.00 per share for the warrants issued at closing of the initial $2 million draw. After the initial closing, the strike price of future warrants issued is subject to adjustment if we sell shares of common stock at a lower price. As of December 31, 2018, we had issued 125,000 warrants to Dow, which are exercisable on or before the expiration date of December 1, 2023. 

 

The aforementioned warrants meet the criteria for classification within stockholders’ equity. Proceeds were allocated between the debt and the warrants at their relative fair value. The total debt discount on the Dow Facility was approximately $372,000. The debt discount is being amortized to interest expense using the effective interest method over the term of the loans using an average effective interest rate of 6.3%. During the year ended December 31, 2018, we recognized $306,482 of amortization expense consisting of $264,117 of non-cash interest expense paid with shares of Preferred Stock and $42,305 of amortization from debt discount accretion related to the Dow Facility Loan. We repaid $178,490 of outstanding principal on the debt, resulting in a carrying value of $4,922,589 for the Dow Facility as of December 31, 2018.

 

The Dow Facility entitles Dow to appoint an observer to our Board. Dow will maintain this observation right until the later of December 1, 2019 or when the amount of principal and interest outstanding under the Dow Facility is less than $5 million. 

 

2014 Samsung Financing and Warrants

 

On January 15, 2014, we sold $3,000,000 of Secured Convertible Notes to SVIC No. 15 New Technology Business Investment L.L.P, a subsidiary of the Samsung Group (“Samsung”). The Notes were converted into Series A Convertible Preferred Stock on December 31, 2015. In connection with the sale of the Notes, the Company issued to Samsung a total of 100,000 warrants with a term of 4 years that were exercisable into shares of Series A Convertible Preferred Stock at a price of $12.00. These warrants vested in four annual installments according to the amount of future cash payments made by Samsung for licensing, royalties and product purchases. As of December 31, 2018, no payments had been made by Samsung and none of the warrants associated with the Samsung note had vested. The warrants expired on January 15, 2018.

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NOTE 8 — PRIVATE PLACEMENT

 

All of the previously issued Series B Preferred Stock was cancelled. Although the stock was cancelled, all of the warrants to purchase 222,262 shares of common stock and preemptive rights warrants to purchase 2,635 shares of common stock issued in connection with the Series B Units remain outstanding at December 31, 2018. Such warrants have an exercise price of $16.00 per share and expire between April 21 and June 30, 2022. These warrants were classified as derivative liabilities until September 30, 2017; at which time they were reclassified to equity (additional paid in capital). The reclassification was made on September 30, 2017 after determining that the exchange rights no longer required liability classification under ASU 2017-11.

  

NOTE 9 - DERIVATIVE LIABILITY WARRANTS

 

On the date of their issuances, the Series A Convertible Preferred Stock warrants issued in conjunction with convertible notes issued in 2013 (subsequently converted into Series A Convertible Preferred Stock on December 31, 2015), equipment financing leases procured in 2013 and 2014, and certain other pre-emptive rights and the common stock warrants issued in connection with the 2015 Series B Unit offering were derivative liabilities which require re-measurement at fair value each reporting period.

 

As mentioned in Note 2, in September 2017, we chose to adopt ASU 2017-11 which changed the classification analysis of certain warrants with anti-dilution features. Since we adopted ASU 2017-11 in an interim period, the adjustments were reflected as of the beginning of the fiscal year as a cumulative-effect adjustment to the Company’s beginning accumulated deficit as of January 1, 2016. As a result of adopting ASU 2017-11, the Company no longer recognizes a liability related to 972,720 warrants, which were only classified as liabilities a result of having anti-dilution features.

 

As mentioned in Note 8, 224,897 warrants related to the Series B Unit offering were reclassified from derivative liabilities on the balance sheet to equity at September 30, 2017 because the requirement to classify them as liabilities was removed when we amended the Series B Certificate of Designation in August of 2016.

 

The initial value of the stock warrants issued as consideration for the equipment financing leases in 2013 and 2014 was recorded as a reduction of the capital lease obligation and is being amortized as part of the effective interest cost on the capital lease obligation (see Note 13).

 

In 2014 when we entered into financing agreements with Samsung, AAOF and XGS II, and we provided our shareholders with preemptive rights to purchase shares of Series A Convertible Preferred Stock for every two shares of Series A Convertible Preferred Stock or common stock owned by the shareholder. In addition, for every two shares of Series A Convertible Preferred Stock purchased by a shareholder, we issued such shareholder a warrant to purchase one additional share of Series A Convertible Preferred Stock with the same terms as the warrants issued to AAOF and XGS II.

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Also, as part of our private placement of Series B Units in April 2015, shareholders and holders of our convertible notes were provided the right to purchase their pro rata share of any class of stock that the Company sells or issues. The sale of Series B Preferred Stock in the April 2015 offering triggered the preemptive rights resulting in the issuance of shares of Series B Preferred Stock and warrants.  As of December 31, 2017, the total number of warrants issued due to the preemptive rights offerings was 58,689.

 

Changes in the fair value of Derivative Liabilities, carried at fair value, are reported as “Change in fair value of derivative liability — warrants” in the Statement of Operations. Comparative prior periods were prepared using the newly adopted ASU 2017-11 as follows:

 

   Year ended December 31,
   2018  2017
Warrants issued with preemptive rights  $—     $(545)
Warrants issued with April 2015 private placement of Series B Units   —      (46,067)
           
Total Derivative Gain (Loss)  $—     $(46,612)

 

As a result of the Company’s early adoption of ASU 2017-11 at September 30, 2017, which effected warrants to purchase 972,720 shares of Series A Convertible Preferred Stock and warrants to purchase 224,897 shares of common stock that were issuance in connection with the Series B Unit Offering, we reclassified $7,650,442 of derivative liabilities to shareholders equity as we are no longer required to record the change in fair values for these instruments.

 

NOTE 10 – STOCK WARRANTS ACCOUNTED FOR AS EQUITY INSTRUMENTS

 

The following table summarizes the warrants (including the warrants previously accounted for as derivatives) outstanding at December 31, 2018, which are accounted for as equity instruments, all of which are exercisable: 

 

Date Issued  Expiration Date  Indexed
Stock
  Exercise Price  Number of 
Warrants
             
07/01/2009  07/01/2019  Common  $8.00    6,000 
10/08/2012  10/08/2027  Common  $12.00    5,000 
01/15/2014 - 12/31/2014  01/15/2024  Series A Convertible Preferred  $6.40    972,720 
04/30/2015- 05/26/2015  04/30/2022  Common  $16.00    218,334 
06/30/2015  06/30/2022  Common  $16.00    6,563 
12/31/2015  12/31/2020  Common  $8.00    20,625 
03/31/2016  03/31/2021  Common  $10.00    10,600 
04/30/2016  04/30/2021  Common  $10.00    895 
12/14/2016  12/01/2023  Common  $8.00    50,000 
07/18/2017  12/01/2023  Common  $8.00    25,000 
09/22/2017  12/01/2023  Common  $8.00    25,000 
12/04/2017  12/01/2023  Common  $8.00    25,000 
               1,365,737 

  

The warrants indexed to Series A Convertible Preferred Stock are currently exercisable and are exchangeable into 1.875 shares of common stock for each share of Series A Preferred.

 

NOTE 11 — STOCKHOLDERS’ EQUITY (DEFICIT)

 

Series A Convertible Preferred Stock

 

As of December 31, 2018, the Company is authorized to issue up to 3,000,000 shares of Series A Convertible Preferred Stock, or Series A Preferred. Each share of the Series A Preferred, which has a liquidation preference of $12.00 per share, is convertible at any time, at the option of the holder, into one share of Common Stock at the lower of: (a) $12.00 per share, or (b) 80% of the price at which the Company sells any equity or equity-linked securities in the future. The Series A Preferred also contains typical anti-dilution provisions that provide for adjustment of the conversion price to reflect stock splits, stock dividends, or similar events. The Series A Preferred is subject to mandatory conversion into Common Stock upon the listing of the Company’s Common Stock on a Qualified National Exchange. However, the Series A Preferred is not subject to the mandatory conversion until all outstanding Convertible Securities are also converted into common stock. The Series A Preferred ranks senior to all other equity or equity equivalent securities of the Company other than those securities which are explicitly senior or pari passu in rights and liquidation preference to the Series A Preferred

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The Company issued 1,456,126 shares of Series A Preferred in connection with the conversion of certain convertible notes on December 31, 2015. There were 1,890,354 and 1,857,816 shares of Series A Convertible Preferred Stock outstanding as of December 31, 2018 and 2017, respectively. 

 

Series B Convertible Preferred Stock

 

As of December 31, 2018, 1,500,000 shares have been designated as Series B Convertible Preferred Stock, or Series B Preferred, of which none were issued and outstanding. Each share of the Series B Preferred, which has a liquidation preference of $16.00 per share, is convertible at any time, at the option of the holder, into one share of common stock at $16.00 per share. The Series B Preferred also contains typical anti-dilution provisions that provide for adjustment of the conversion price to reflect stock splits, stock dividends, or similar events. Each share of Series B Preferred is subject to mandatory conversion into common stock at the then-effective Series B conversion rate upon the public listing by the Company of its common stock on a Qualified National Exchange. However, the Series B Preferred is not subject to the mandatory conversion until all outstanding Convertible Securities are also converted into common stock. The Series B Preferred ranks senior to all other equity or equity equivalent securities of the Company other than those securities which are explicitly senior or pari passu in rights and liquidation preference to the Series B Preferred and pari passu with the Company’s Series A Preferred.

 

Investors in the Series B Unit offering in April 2014 had the right to exchange their Series B Preferred on a price per share basis into new securities on the relative price per share terms as new securities sold to a third party on the earlier of i) December 31, 2017 and ii) the date the Company consummates the sale of new securities resulting in gross proceeds of at least $18 million. As discussed in further detail in Note 8, as of December 31, 2017, all holders of Series B Preferred exercised their exchange rights and had exchanged all their Series B Preferred for shares of common stock.

 

The Series A Preferred and Series B Preferred are not redeemable for cash and the Company concluded that they are more akin to equity-type instruments than debt-type instruments. Accordingly, the embedded conversion option in each agreement is clearly and closely related to an equity-type host and the conversion option does not require classification and measurement as a derivative financial instrument. Therefore, the securities meet the conditions for stockholders’ equity classification.

 

Common Stock

 

The Company is authorized to issue 25,000,000 shares of common stock, no par value per share. During the years ended December 31, 2018 and 2017, the Company issued 1,406,918 and 468,175 shares of common stock, respectively. There were 3,760,268 and 2,353,350 shares  of common stock issued and outstanding at December 31, 2018 and 2017, respectively.

 

Each outstanding shares of common stock is entitled to one vote on each matter submitted to a vote, unless provided in our Articles of Incorporation, as amended. Each common stockholder is entitled to receive dividends, if declared. Holders of the common stock have no other preemptive or preferential rights to purchase additional shares of any class of the Company’s capital stock in subsequent stock offerings. 

 

NOTE 12 — EQUITY INCENTIVE PLAN

 

We previously established the 2007 Stock Option Plan (the “2007 Plan”), which was scheduled to expire on October 30, 2017 and under which we granted key employees and directors options to purchase shares of our common stock at not less than fair market value as of the grant date. On May 4, 2017, the Board approved the 2017 Equity Incentive Plan (the “2017 Plan”) to replace the 2007 Plan, which became effective upon the approval of the stockholders holding a majority of the voting power in the Company on July 18, 2017. The 2017 Plan replaces the 2007 Plan and authorizes us to issue awards (stock options and restricted stock) with respect of a maximum of 1,200,000 shares of our common stock, which equals the number of shares authorized under the 2007 Plan.   

 

On July 24, 2017, certain stock options from the 2007 Plan were cancelled and replacement stock options were awarded. The replacement stock option awards have an exercise price of $8.00 per share, a seven-year term, are vested 50% on date of grant with the remaining vesting over a 4-year period from the date issued and are subject to certain other terms. Each option holder received options equal to 150% of the number of cancelled stock options. The cancellation and reissuance of the stock options were treated as a modification under ASC 718, Compensation-Stock Compensation. Incremental compensation cost of approximately $1,015,758 was measured as the excess of the fair value of the modified award over the fair value of the original award immediately before the terms were modified. Compensation cost of approximately $501,071 was recorded on the date of cancellation for awards that were vested on the date of the modification. For unvested awards, compensation cost of approximately $514,687 will be recorded over the remaining requisite service period.

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On September 30, 2018 and August 10, 2017, the Company granted each Board member 2,500 stock options and 2,500 shares of restricted stock for their Board services. The options were granted at a price of $8.00 per share and vest ratably over a four-year period beginning on the one-year anniversary. The options had an aggregate grant date fair value of $29,580 and $26,120 on September 30, 2018 and August 10, 2017, respectively. The restricted stock issued to the Board members has an aggregate fair value of $160,000 and vest ratably in arrears over four quarters on the last day of each fiscal quarter following the grant date. As of December 31, 2018, and 2017, 10,000 and 5,000 of the 20,000 shares of restricted stock issued had vested, resulting in compensation expense of $80,000 and $40,000 for the years ended December 31, 2018 and 2017, respectively.

 

The Company granted 32,500 employee stock options on November 1, 2017. The options were granted at a price of $8.00 per share and had an aggregate grant date fair value of $88,946. The options vest ratably over a four-year period beginning on the one-year anniversary.

 

The following table shows the stock option activity during the years ended December 31, 2018 and 2017:

 

   2018     2017   
   Number
Of
Options
  Weighted
Average
Exercise
Price
  Number
Of
Options
  Weighted
Average
Exercise
Price
Options outstanding at beginning of year   677,125   $8.00    369,750   $11.86 
Changes during the year:                    
Cancelled   (27,500)   8.00    (357,750)   12.00 
Replacement options granted- at market price   —           536,625    8.00 
New options granted- at market price   148,250    8.00    140,500    8.00 
Expired   —           (12,000)   12.00 
                     
Options outstanding at end of year   797,875    8.00    677,125    8.00 
                     
Options exercisable at end of year   396,525    8.00    322,158    8.00 
                     
Weighted average fair value exercise price of options granted during the year       $8.00        $8.00 
Weighted average remaining contractual term (in months)        16         80 

 

 

Costs incurred in respect of stock-based compensation for employees and directors, for the years ended December 31, 2018 and 2017 were $349,963 and $856,084, respectively. Unrecognized compensation cost as of December 31, 2018 and 2017 was $362,462 and $935,363, respectively . Unrecognized compensation expense includes options which have not yet vested. Unrecognized compensation expense is $362,462 and is expected to be recognized over the next four years.

 

As of December 31, 2018, none of the currently exercisable stock options had intrinsic value. The intrinsic value of each option share is the difference between the fair value of our common stock and the exercise price of such option share to the extent it is “in-the-money”. Aggregate intrinsic value represents the value that would have been received by the holders of in-the-money options had they exercised their options on the last trading day of the year and sold the underlying shares at the closing stock price on such day. The intrinsic value calculation is based on the assumed market value of our common stock on December 31, 2018 of $8.00 per share, which is the price per share at which we have been selling shares of common stock to third parties in our Offering. There were no in-the-money options outstanding and exercisable as of December 31, 2018, since the exercise prices of the stock options outstanding and expected to vest were all equal to the fair value of our common stock.

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The following table presents changes in the number of non-exercisable options during 2018:

 

   2018
Total- non-exercisable options outstanding- December 31, 2017   354,967 
Options granted   148,250 
Options vested   (86,867)
Options cancelled/forfeited   (15,000)
Outstanding non-exercisable options outstanding as of December 31, 2018   401,350 
Weighted average grant date fair value  $8.00 
Weighted average remaining vested period (in months)   16 

 

The fair value of options granted during the year ended December 31, 2018 totaled $437,817. The total fair value of options granted during the year ended December 31, 2017 was $1,673,476 with $1,302,627 of this amount being related to options that were issued to replace options which were cancelled on July 24, 2017.

 

The fair value of the options granted during the years ended December 31, 2018 and 2017 was estimated on the grant date using the Black-Scholes option-pricing model with the following assumptions:

 

    2018 2017
Fair value of underlying stock   $8.00 $8.00
Expected option life    4.75 years 3.50 years – 4.75 years
Expected stock price volatility   37.34% – 39.09% 34.81% – 36.85%
Risk free interest rate   2.51%- 2.94% 1.49%- 2.01%
Expected dividend yield   0.00% 0.00%

 

Information with respect to restricted stock awards outstanding was as follows:

 

   2018  2017
Outstanding non-vested restricted stock at beginning of year:   —      —   
Granted   10,000    10,000 
Vested   10,000    5,000 
Cancelled/forfeited   —      —   
Outstanding non-vested restricted stock   5,000    5,000 
Weighted average grant date fair value  $8.00   $8.00 
Weighted average remaining vested period (in months)   4.5    6 

 

NOTE 13 — CAPITAL LEASES

 

Lease obligations on December 31, 2018 consisted of a minimal amount of equipment leases. As of December 31, 2017, we had capital lease obligations to AAOF (see Note 9) and other lessors as follows:

 

   December 31,
2018
  December 31,
2017
Capital lease obligations  $15,527   $149,120 
Unamortized warrant discount   —      (15,040)
Net obligations   15,527    134,080 
Short-term portion of obligations   (3,613)   (118,553)
           
Long-term portion of obligations  $11,914   $15,527 

 

In connection with the lease agreements with AAOF, we issued to them preferred stock warrants with an initial fair value of $156,043 and $147,496 in 2015 and 2014, respectively (see Note 9). The initial fair value has been accounted for as a discount on the capital lease obligation and is being amortized as part of the interest expense on the leases. Initially the warrants were accounted for as derivative instrument liabilities at fair value. With the early adoption of ASU 2017-11 (see Note 2) these were reclassified to equity.

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Our AAOF capital lease obligations are four-year leases starting on January 1, 2014 and January 1, 2015. The effective interest rates on the leases are 50% and 32% for the leases executed in 2015 and 2014, respectively. The present value of the lease payments are more than 90% of the fair value of the equipment and therefore the leases were capitalized.

 

The AAOF capital lease obligations were paid through the issuance of 32,538 shares of Preferred Series A stock for the year ended December 31,2018.

 

Our other capital leases expire at various dates in 2018 and 2022, have average effective interest rates of 1.54% and contain bargain purchase options that allow us to purchase the leased property for a minimal amount upon the expiration of the lease term.

 

Future minimum lease payments under capital lease obligations are as follows:

 

For the year ending December 31:     
2019   4,266 
2020   4,266 
2021   4,266 
2022   4,266 
Total future minimum lease payments   17,063 
Less amount representing interest   (1,536)
Present value of future minimum lease payments   15,527 
Less current maturities   (3,613)
Obligations under capital leases – long term  $11,914 

 

Property and equipment acquired under capital lease agreements is pledged as collateral to secure the performance of the future minimum lease payments above.

 

NOTE 14 — INCOME TAXES 

Deferred tax assets (liabilities) consist of the following at December 31:

  

2018

 

2017

Deferred tax assets:          
Net operating loss carry forwards  $11,330,000   $9,230,000 
Miscellaneous temporary differences   55,000    5,000 

 

Research and development credits

   635,000    600,000 
Deferred tax liabilities:          
Property and equipment        (120,000)
           
Net deferred tax asset  $12,065,000   $9,715,000 
Valuation allowance  $(12,065,000)  $(9,715,000)
           
Net deferred tax asset  $—     $—   

Federal net operating loss carry forwards of $50,700,000 and $44,000,000 exist at December 31, 2018 and 2017, respectively. State net operating loss carry forwards of $9,900,000 and $4,900,000 exist at December 31, 2018 and 2017, respectively.

The primary difference between the net operating loss carry forwards and the accumulated deficit arises from certain stock option, warrants and other debt and equity transactions that are considered permanent differences. These losses were incurred in the years 2006 through 2018 and will expire between 2026 and 2037 and their utilization may be limited if we experience significant ownership changes. The Company has not conducted a full IRC Section 382 analysis to determine if a reduction in net operating loss carry forwards is required due to ownership changes. The analysis has not been undertaken due to the financial burden it would cause and changes, if any, resulting in a reduction to the deferred tax asset and related valuation would have no impact on the net deferred tax asset or expense recognized. The research and development credits will expire between 2028 and 2038. A rate of 28% has been used to calculate the deferred tax assets and liabilities based on the expected effective tax rates, net of applicable credits, upon reversal of the differences above. A valuation allowance has been established against the entire deferred tax asset at December 31, 2018 and 2017.

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The Tax Cuts and Jobs Act of 2017 was signed into law on December 22, 2017. The law includes significant changes to the U.S. corporate income tax system, including a federal corporate rate reduction from 35% to 21%, limitations on the deductibility of interest expense and executive compensation, and the transition of U.S. international taxation from a worldwide tax system to a territorial tax system. The rate reduction resulted in a $5,635,000 decrease in both the deferred tax asset and valuation allowance with no net impact on the 2017 financial statement amounts.

 

The Company will continue to assess its provision for income taxes as future guidance is issued but does not currently anticipate significant revisions will be necessary. Any such revisions will be treated in accordance with the measurement period guidance outlined in Staff Accounting Bulletin No. 118.

Below is a reconciliation of the statutory federal and state income tax rates to our effective tax rate for the fiscal years ended December 31, 2018 and 2017:

  

2018

 

2017

Federal tax provision   21.0%   32.0%
State tax provision   7.0%   6.0%
Non-deductible compensation expense   3.4%   13.3%
Valuation allowance   (31.4)%   (51.3)%
    0.0%   0.0%

We file income tax returns in the U.S. federal jurisdiction and in the states of Massachusetts and Michigan. Tax regulations within each jurisdiction are subject to the interpretation of the related tax laws and regulations and require significant judgment to apply. Beginning in 2016 we began filing under the corporate income tax (CIT) versus the Michigan Business Tax (MBT) structure. Net operating losses incurred in 2015 and prior will not carry forward to the CIT tax structure, accordingly all losses prior to 2016 are considered a permanent timing difference for state deferred tax calculations.

For federal and state purposes, we have open tax years for all years in which we have filed tax returns. We are not currently subject to any ongoing income tax examinations.

 

NOTE 15 — Customer, Supplier, country and Product Concentrations

 

Grants and Licensing Revenue Concentration

 

One grantor accounted for 98% of total grant revenue in 2018. Two grantors accounted for 75% and 25% respectively of total grant revenue in 2017. The company’s licensing revenue in 2017 came from one licensor.

 

Product Concentration

 

For 2018, we had a concentration of product revenue from one product that was greater than 10% of total product revenues. Revenue from one of the Company’s graphene nanoplatelets materials, Grade C 500 m²/g, was 74%. For 2017, we had concentrations of product revenue from two products that were greater than 10% of total product revenues. Revenue from two of the Company’s graphene nanoplatelets materials, Grade C 300 m²/g – HP, was 14% and Grade C 500 m²/g, was 55%. We attempt to minimize the risk associated with product concentrations by continuing to develop new products to add to our portfolio.

 

Customer Concentration

 

For 2018 we had one customer whose purchases accounted for 72% of total product revenues. For 2017 we had three customers whose purchases accounted for 10%, 12% and 53% of total product revenues. At December 31, 2018, there were three customers who had an accounts receivable balance greater than 10% of our outstanding receivable balance. At December 31, 2017, there was one customer who had an accounts receivable balance greater than 10% of our outstanding receivable balance.

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Country Concentration

 

We sell our products on a worldwide basis. International revenues in 2018 and 2017, as a percentage of total product revenue, were 12% and 30%, respectively. All of these sales are denominated in U.S. dollars.

 

For 2018, no country other than the United States accounted for more than 5% of total product revenue. For 2017, one country other than the United States (China) accounted for approximately 13% of total product revenue.

 

Suppliers

 

We buy raw materials used in manufacturing from several sources. These materials are available from a large number of sources. A change in suppliers has no material effect on the Company’s operations. We did not have any purchases to one supplier that were more than 10% of total purchases in either 2018 or 2017.

 

NOTE 16 — RELATED PARTY TRANSACTIONS AND COMMITMENTS

 

We have a licensing agreement for exclusive use of patents and pending patents with Michigan State University (MSU), a stockholder via the MSU Foundation. During 2018 and 2017, we incurred $50,000 each year for royalties for these licenses. We have also entered into product licensing agreements with certain other stockholders. No royalty expenses have been recognized related to these agreements during 2018 and 2017.

 

The Company and POSCO, a shareholder of the Company, entered into a license agreement dated June 8, 2011, pursuant to which POSCO  agreed to pay a minimum annual royalty of $100,000 per year if certain circumstances existed, among other things. The Company believed that this minimum annual royalty became due annually beginning on February 28, 2015, and up until June 30, 2017, recorded this royalty revenue at a rate of $25,000 per quarter. POSCO disputed its obligation to pay this minimum annual royalty and did not pay the royalty in any prior year. We filed a demand for arbitration in the International Court of Arbitration on March 9, 2016, in an effort to resolve the dispute. On November 3, 2017, the Company and POSCO agreed to modify the terms of the initial agreement and dismiss the arbitration. Amounts owed to us were paid by POSCO in November 2017. There were no amounts due and recorded on our balance sheet at December 31, 2017.

 

During the years ended December 31, 2018 and 2017, we issued 32,538 and 28,560 shares, respectively, of Series A Preferred to AAOF as payment under the terms of a Master Leasing Agreement.

 

During 2018, Mr. Allemang, Jones and Pendell and certain of their affiliates invested the following amounts into our Offering and purchased the number of shares indicated below.

 

    Purchase Dates (2018)   Amount Invested     Shares Purchased  
Arnold Allemang and affiliates   June 23 – 28 and Sept. 30, 2018   $ 1,500,000       187,500  
Steven C. Jones and affiliates   June 24 – 27, 2018    $ 969,944       121,243  
David G. Pendell and affiliates   June 27 and Dec. 5, 2018   $ 20,000       2,500  
Total       $ 2,489,944       311,243  

  

During 2017, Mr. Allemang, Jones and Pendell and certain of their affiliates invested the following amounts into our Offering and purchased the number of shares indicated below.

.

    Purchase Dates (2017)   Amount Invested     Shares Purchased
Arnold Allemang and affiliates   Sept. 6 and Dec. 28, 2017   $ 560,000       70,000
Steven C. Jones and affiliates   April 3 and Sept. 29, 2017   $ 252,400       31,550
David G. Pendell and affiliates   February 9, 2017   $ 16,000       2,000
Total       $ 828,400       103,550

 

In conjunction with a financing with AAOF, we and our stockholders listed therein entered into a Shareholder Agreement on March 18, 2013 that contains a number of specific provisions pertaining to the Board of Directors as well as individual Directors. On February 26, 2016, we amended the Shareholder Agreement.

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Among other things, the Shareholder Agreement provides for certain voting and nomination rights to be calculated on the basis of “Full Conversion” stock ownership (under which calculation, all convertible notes, preferred shares, or other convertible equity securities are deemed converted into common stock) as follows:

 

  So long as AAOF or its affiliates own 10% of more of the aggregate outstanding Shareholder Stock (as defined in the Shareholder Agreement):

 

  - the size of the Board of Directors shall be set at seven individuals.

 

  - one person nominated by AAOF shall be elected to the Board of Directors.

 

  - two members of the Board of Directors, other than those nominated by AAOF, POSCO or Hanwha Chemical, shall qualify as independent Directors.

 

  So long as POSCO owns 10% of more of the aggregate outstanding Shareholder Stock, one person nominated by POSCO shall be elected to the Board of Directors. POSCO does not currently own at least 10% of the aggregate outstanding Shareholder Stock and therefore, there is no POSCO representative on the Board of Directors.

 

  So long as Hanwha Chemical owns 10% of more of the aggregate outstanding Shareholder Stock, one person nominated by Hanwha Chemical shall be elected to the Board of Directors. Hanwha does not currently own at least 10% of the aggregate outstanding Shareholder Stock and therefore, there is no Hanwha representative on the Board of Directors.

 

As of December 31, 2016, the ownership percentage of AAOF, as calculated for purposes of director voting, required the shareholders bound by the Shareholder Agreement to vote for a director nominated by AAOF. Mr. Jones is the AAOF representative to the Board pursuant to the terms of the Shareholder Agreement.

 

The Shareholder Agreement grants preemptive rights to shareholders and holders of convertible notes who are parties to the Shareholder Agreement. Pursuant to the terms therein, such shareholders and noteholders have the right to purchase their pro rata share of all shareholder stock that the Company may, from time to time, propose to sell, issue, or exchange after the date of the Shareholder Agreement, other than certain excluded stock which includes stock granted to employees or as merger consideration. Each shareholder’s pro rata shares shall be equal to the ratio of (i) the aggregate number of shares of the Company’s common stock on a fully diluted basis, owned by the such shareholder at the time of the delivery of a preemptive rights notice to (ii) the aggregate number of shares of Company’s common stock on a fully diluted basis owned by all of the Company’s shareholders at the time of the delivery of a preemptive rights notice.

 

The Shareholder Agreement may be amended or terminated by agreement (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of (i) a majority of the Board, and (ii) persons holding, in the aggregate, shares of Shareholder Stock representing at least sixty percent (60%) of the voting power of all shares of Shareholder Stock then held by Shareholders and their permitted assignees.

 

The February 26, 2016 amendment provides that holders of Excluded Stock are not subject to the terms of the Shareholders Agreement. Excluded Stock means shares of common stock that are subject to a registration statement that has been filed with the SEC and has been declared effective, and, for the avoidance of any doubt, includes the 3,000,000 shares being offered under the Registration Statement. This amendment took effect upon the effectiveness of our Registration Statement.

 

The Amendment to the Shareholder Agreement further clarifies that preemptive rights shall not apply to Excluded Stock (including, without limitation, the 3,000,000 shares being offered under the Registration Statement) and amends the termination date of the Shareholders Agreement. The Shareholder Agreement will continue in effect, unless the Shareholder Agreement is earlier terminated in accordance with its terms until the date on which the Company’s common stock is listed on the NASDAQ Stock Market of the New York Stock Exchange. As a result, the Shareholder Agreement will continue to remain in effect and certain of our larger shareholders will be entitled to continue to exercise their rights under such Shareholder Agreement, but purchasers of shares of common stock under the registration statement filed in connection with our current offering are not required to adopt the Shareholder Agreement. 

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NOTE 17 — OPERATING LEASES

 

We lease our primary manufacturing facility, laboratory and administrative office under two separate operating leases expiring in March 2022 and December 2022. A second manufacturing facility is leased on a month to month basis. We have a third manufacturing facility under an operating lease executed in October of 2017 and expiring December 31, 2022. We moved to this facility in mid-2018 and are currently fully operational. As of December 31, 2018, the facility with the month to month lease is empty and in the process of clean up as we plan to fully exit in the first half of 2019. Total rent expense, including common area maintenance costs, was $570,766 and $388,851 during the years ended December 31, 2018 and 2017, respectively. Operating lease commitments for the next 4 years are as follows:

 

For the year ending December 31:        
2019   $ 589,896  
2020   $ 594,234  
2021   $ 609,534  
2022   $ 563,988  

 

NOTE 18 — RETIREMENT PLAN

 

We maintain a defined-contribution 401(k) retirement plan covering substantially all employees (as defined by our plan document). Employees may make voluntary contributions to the plan, subject to limitations based on IRS regulations and compensation. The plan allows for an employer match contribution. The employer match expense was $76,009 and $75,496 for the years ended December 31, 2018 and 2017, respectively.

 

NOTE 19 — LETTER OF CREDIT

 

We are required by one of our lease agreements to maintain a letter of credit of approximately $190,000 through February 2022. To support this letter of credit, we are required to maintain an equivalent cash deposit. As of December 31, 2018, there were no amounts outstanding on the letter of credit. The cash deposit is restricted and classified as a non-current asset. As of December 31, 2018, and 2017, the cash deposit for the letter of credit was $190,140 and $195,792, respectively.

 

NOTE 20 — SUBSEQUENT EVENTS

 

During the period from January 1 through April 1, 2019, we received common stock proceeds of $410,000 for the sale of 51,250 shares.

 

 

 

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ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURES

 

As disclosed in the Company's Current Report on Form 8-K filed January 3, 2019, on December 27, 2018, XG Sciences, Inc. terminated the services of its then current independent registered public accounting firm, Frazier & Deeter, LLC ("Frazier") with the approval of its Audit Committee. During the Company's fiscal year ended December 31, 2017 and through the date hereof, there were no disagreements (as that term is defined in Item 304(a)(1)(iv) of Regulation S-K) with Frazier on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure which disagreements, if not resolved to Frazier's satisfaction, would have caused them to make reference to the subject matter in connection with their report on the Company's consolidated financial statements for such periods. Furthermore, no reportable events occurred within the periods covered by Frazier's reports on the Company's financial statements, or subsequently up to the date of Frazier's dismissal.

 

As disclosed in the Company’s Current Report on Form 8-K filed January 10, 2019, on January 8, 2019, the Company retained the services of RSM US LLP (“RSM”) as its new independent registered public accounting firm upon the recommendation of the Audit Committee. 

 

ITEM 9A. CONTROLS AND PROCEDURES

 

Evaluation of Disclosure Controls and Procedures

 

At the conclusion of the period ended December 31, 2018, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)). Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that as of December 31, 2018, our disclosure controls and procedures were effective and adequately designed to ensure that the information required to be disclosed by us in the reports we submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the applicable rules and forms and that such information was accumulated and communicated to our Principal Executive Officer and Principal Financial Officer, in a manner that allowed for timely decisions regarding required disclosure.

 

We do not expect that our disclosure controls and procedures will prevent all errors and all instances of fraud. Disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure controls and procedures are met. Further, the design of disclosure controls and procedures must reflect the fact that there are resource constraints, and the benefits must be considered relative to their costs. Because of the inherent limitations in all disclosure controls and procedures, no evaluation of disclosure controls and procedures can provide absolute assurance that we have detected all our control deficiencies and instances of fraud, if any. The design of disclosure controls and procedures also is based partly on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.

 

Management’s Annual Report on Internal Control over Financial Reporting

 

The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) of the Securities Exchange Act of 1934. The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles. Internal control over financial reporting includes policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with United States generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitions, use or disposition of the Company’s assets that could have a material effect on the financial statements.

 

Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2018. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control-Integrated Framework published in 2013. Based on this assessment, and on those criteria, management concluded that the Company’s internal control over financial reporting was not effective as of December 31, 2018 for the following reasons:

 

The Company’s accounting department consists of a limited number of personnel which does not provide for an adequate segregation of duties and we did not have a Chief Financial Officer until November 2018.

   

This report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to rules of the SEC.

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Changes in Internal Controls over Financial Reporting

 

In November 2018, the Company hired a CFO to oversee the finance and reporting function, modify processes to mitigate segregation of duties issues and increase supervisory and review controls. In addition to the hiring of a CFO in 2018, management also is increasing headcount in the finance and accounting team with some hires occurring in 2019, subsequent to year-end. While the addition of the CFO in 2018 and the increase in the accounting team in early 2019 will mitigate this deficiency, the additions did not occur timely enough in 2018 to remediate the internal control over financial reporting of the Company for the year ended December 31, 2018.

 

ITEM 9B.

OTHER INFORMATION

None

PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

Directors and Executive Officers of the Company

 

The following table sets forth the name and age of the Company’s executive officers, Directors and significant employees as of the date of this filing. There are no family relationships among any of our executive officers or directors.

 

Name   Age   Position(s)
Philip L. Rose   56   Chief Executive Officer, President, Secretary, Treasurer & Director
Arnold A. Allemang   76   Chairman of the Board, Chairman of the Executive Committee, and member of the Audit and Compensation Committees
Steven C. Jones   55   Director, AAOF representative to the Board, Chairman of the Audit, Nominating, and Corporate Governance Committees, member of the Executive and Compensation Committees
Molly P. Zhang   57   Director, member of the Audit Committee, Nominating, and Corporate Governance Committees

Dave Pendell

Robert Blinstrub

 

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Director

Director

Jacqueline M. Lemke   56   Chief Financial Officer
Bamidele Ali   42   Chief Commercial Officer
Scott Murray   63   Vice President, Operations
Liya Wang   61   Vice President of Research & Development

 

Biographies of Officers and Directors

 

Philip L. Rose, Ph.D.

 

Dr. Rose joined the Company in January 2014 and currently serves as our Chief Executive Officer, President, Secretary, Treasurer and is a Director of the Company. Dr. Rose has extensive international business management experience in the electronic and specialty materials markets. Prior to joining XG Sciences, he spent 4 years as President of SAFC Hitech, a $100 million division of Sigma-Aldrich that makes precursors and performance materials for the LED, energy and display, and semiconductor markets. He also served concurrently for a period of time as CEO of Soulbrain-Sigma Aldrich based in South Korea and as an independent Director for Pixtronix, a company based in the Boston area. Before joining Sigma Aldrich, Dr. Rose spent almost 20 years with Rohm and Haas in various leadership positions in the semiconductor and flat panel display industries that include general management, mergers and acquisitions, business development and marketing. Dr. Rose has 7 years of experience living in Japan and South Korea and has travelled extensively in Asia over the past 15 years. Dr. Rose earned his Ph.D. in Physical Chemistry from Duke University and holds a B.S. in Chemistry from the University of Southern California and a certificate in Business Management from The Wharton School at the University of Pennsylvania. In light of the aforementioned experience qualifications, attributes and skills, we believe Dr. Rose is qualified to serve as a director.

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Arnold A. Allemang

 

Mr. Allemang has served as a Director of XG Sciences since March 2010 and Chairman of the Board since January 2016. Mr. Allemang was employed by Dow, headquartered in Midland, Michigan for 43 years. Mr. Allemang joined Dow in 1965 in Freeport, Texas. After five years in the Solvents Development Lab, he transferred to Stade, Germany. In 1972, he returned to the United States for various technical and managerial assignments. Mr. Allemang was named unit manager for Freeport’s Chlorinated Ethanes in 1981, and two years later assumed the same role for Light Hydrocarbons and Acetylene. He transferred to Terneuzen, The Netherlands, in 1984 to become production manager for Light Hydrocarbons I, and in 1986 became responsible for process control and engineering functions. In 1988, he returned to Freeport to manage the site’s hydrocarbons production and moved to Midland in 1989 as Director of Technology Centers. Mr. Allemang was named Manufacturing General Manager for Dow Benelux in 1992, and in early 1993 was named regional vice president, Manufacturing and Administration, Dow Benelux. He was named vice president, Manufacturing Operations Dow Europe in late 1993. In August 1995, Mr. Allemang was named vice president, Operations, which included global manufacturing and engineering activities. He then became executive vice president of Dow in 2000 and was named senior advisor in 2004. In March 2008, he retired as a Dow employee Mr. Allemang was elected to the Dow Board of Directors in July 1996 and served until May 2015. Mr. Allemang received a bachelor’s degree in chemistry from Sam Houston State University in Huntsville, Texas. In light of the aforementioned experience qualifications, attributes and skills, we believe Mr. Allemang is qualified to serve as a director.

 

Steven C. Jones

 

Mr. Jones has served as a Director of XG Sciences since March 2014. Mr. Jones is the Chairman of Aspen Capital Group, LLC, a private equity firm headquartered in Naples, FL, which manages private equity funds. Mr. Jones also serves as the President of Aspen Capital Advisors, LLC, which is Aspen Capital Group’s investment management subsidiary. Aspen believes its highest value is to be a “hands on” partner with the management teams of portfolio investments to help them achieve their growth objectives by bringing capital, strategic partners, customers, additional management and other business advice. Mr. Jones has substantial expertise in developing and financing emerging growth companies. In addition to his involvement with XG Sciences, Mr. Jones serves on the Boards of NeoGenomics, Inc. (NASDAQ: NEO) (“NEO”), and ERP Maestro, Inc, a software as a service company, and served on the board of T3 Communications, Inc., a business communications company, until May of 2018. Mr. Jones has also served as an Executive Vice President and consultant of NEO since November 2009 and previously served as Chief Financial Officer from October 2003 until November 2009. In December 2014, he was appointed to serve as a Director of XG Sciences by the Aspen Advanced Opportunity Fund, LP in connection with their investment in XGS. Prior to his career in structured private equity, among other positions, Mr. Jones was a Vice President in the Telecommunications, Media and Technology Investment Banking Group of Merrill Lynch & Co in New York and was the chief executive officer or chief financial officer of various public and private companies. Mr. Jones has a BS degree in Computer Engineering from the University of Michigan and an MBA from the Wharton School of the University of Pennsylvania. In light of the aforementioned experience qualifications, attributes and skills, we believe Mr. Jones is qualified to serve as a director.

 

Molly P. Zhang

 

Molly P. Zhang (aka Peifang Zhang) has served as a director of the Company, since May 2017. From 2011 until retiring in October 2016, Dr. Zhang served as a Vice President of Orica Ltd., USA in a number of departments, including General Management, Global Manufacturing and Asset Management. Prior to joining Orica, Dr. Zhang spent 22 years with Dow, most recently as Managing Director of the SCG-Dow Group and Country General Manager of Dow Thailand. Prior to her roles with Dow in Thailand, Dr. Zhang served as Global Business Vice President of Dow Technology Licensing and Catalyst, and as Manufacturing Leader of Dow Asia Pacific. She also served as Manufacturing Director, Global Technology Director and as a board member of the SCG-Dow Group. Dr. Zhang currently serves as a member of the Supervisory Board for GEA Group, a publicly traded, global engineering, process technology solutions and specialty equipment company based in Dusseldorf, Germany, serving the food, chemical, and energy industries. She serves on the board of directors of Cooper-Standard Holdings, Inc., a publicly traded, global, tier 1 automotive components supplier based in Novi, MI. She also serves on the board of directors for Newmont Mining, a leading global mining company based in Greenwood Village, CO. Dr. Zhang has a Ph.D. in Chemical Engineering from the Technical University of Clausthal, Germany and a Diploma in Chemistry (MS degree), Technical University of Clausthal, Germany. Dr. Zhang is fluent in English, Chinese and German. In light of the aforementioned experience qualifications, attributes and skills, we believe Ms. Zhang is qualified to serve as a director.

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Dave Pendell

 

David Pendell is a principal of the Aspen Advanced Opportunity Fund. From June 2009, Mr. Pendell has served as General Partner and Officer of Advanced Stage Capital LLC, which he owns and operates. Since January 2011 Mr. Pendell has served as General Partner and Officer of ASC Lease Income LLC. From May of 2013 until February 2016, Mr. Pendell served as a Board Observer of the Company until he was appointed to the Board in February 2016. In addition, Mr. Pendell has served and continues to serve on the board of directors of ERP Maestro (since June of 2013) and the board of directors of Strategic Health Services Inc. (since April of 2015) and has worked with Aspen Advanced Opportunity Fund and Veterans Capital Fund. Mr. Pendell was responsible for the successful launch and subsequent profitable sale of five start-up entities in which he was the lead entrepreneur and numerous other investments where he served as a lead investor/mentor/coach. Predominantly, Mr. Pendell led the growth of Pendell Printing, Inc. from a small print firm of less than $1MM in sales in 1971 to over $85MM in 1998 when the sale of the business was completed. Past management roles include Chairman of the Board/President of Pendell Printing Inc.; co-founder of Envision Inc., a graphic solutions enterprise; President and CEO of Baustert Engineering, Inc., a software business; co-founder of Ecoland, a timber/real estate development company; founder of The Earth Generation, an environmental education publisher; and co- Founder of Fuel Oil News, a publication for the home heating industry. Mr. Pendell also actively participates in the Michigan Angel Fund and Tamiami Angel Fund I and II. He received his BS in Psychology from Central Michigan University in 1969. In light of the aforementioned experience qualifications, attributes and skills, we believe Mr. Pendell is qualified to serve as a director.

 

Robert Blinstrub

 

Mr. Blinstrub was appointed to serve as a director on March 19, 2019. He was a founder and President and CEO of AGM Automotive (“AGM”), a global designer, innovator and producer of engineered solutions for light vehicles, including lighting, overhead consoles, electronics and textiles headquartered in Troy, Michigan with 9 locations globally including the United States, Costa Rica, Mexico, Austria, and China, from 2001 to 2017. AGM leveraged a global footprint underpinned by world-class engineering, production, assembly and supply chain management functions.  As an original founder of AGM, Mr. Blinstrub oversaw its development into a global automotive supplier with OEM customers representing the largest American, European, and Asian OEM's. AGM historically doubled its revenue base every 18 months (profitably). During the latter part of his tenure, AGM acquired and successfully integrated two competitors in the North American and European markets. AGM accumulated countless Supplier awards from its customers for World Class Quality, Product Design, Engineering, Innovations, and Service. Prior to AGM, Mr. Blinstrub led multiple startups and operational turnarounds in his career. Mr. Blinstrub studied Finance and Marketing at the Broad College of Business at Michigan State University. In light of the aforementioned experience qualifications, attributes and skills, we believe Mr. Blinstrub is qualified to serve as a director. 

  

Jacqueline M. Lemke

 

Ms. Lemke joined the Company in November 2018 and currently serves as our Chief Financial Officer. Ms. Lemke, has served on the Board of Directors of the American Brain Tumor Association since January of 2017. From 2012 to 2016, she served as President and CEO of Bioanalytical Systems, Inc., a Nasdaq listed contract biopharmaceutical research organization where she successfully refinanced and modernized the company’s capabilities while positioning the business for sustainable value creation. Previously, Ms. Lemke was Vice President of Finance and Global CFO of Remy, Inc., a billion-dollar division of Remy International, from 2007 to 2010, where she built a global finance team and created a financial system to support rapid decision making and clear lines of management accountability. From 2004 to 2005, she served as Vice President of Finance and Global CFO Connected Home Solutions at Motorola, Inc., and, prior to that, was Global Strategic Planning Director of the multi-billion-dollar revenue Invista division at the DuPont Company. Ms. Lemke’s experience includes managing cyclical, global businesses, negotiating and implementing mergers, acquisitions and joint ventures and building an infrastructure to execute a restructured refinancing. She began her career as a tax consultant at Deloitte & Touche and is a Certified Public Accountant (CPA). Ms. Lemke earned her bachelor’s degree in finance and accounting from Drexel University and her master’s degree in management from Northwestern University.

 

Bamidele Ali

 

Bamidele Ali joined the Company in March 2017 as the Chief Commercial Officer.  Prior to joining XG Sciences Mr. Ali served as Vice President of Business Development for Architected Materials, a hybrid-materials and manufacturing company. In that role, he was responsible for sales, global marketing and branding, joint developments, and product pricing strategies. Before joining Architected Materials, he spent 9 years as the president of Ali Technologies Inc. a nanotechnology focused product development and consulting firm.  Mr. Ali also served as Director, Continuous Improvement & Program Management and Director, Additive Manufacturing Business Development, Mergers & Acquisition for DSM, an $8 billion life sciences and materials company.  In these roles, he developed the company’s global additive manufacturing strategy as well as established a program management office and continuous improvement organization.  Mr. Ali also spent several years leading strategic initiatives and developing medical equipment for General Electric Healthcare.  He has extensive experience evaluating and integrating foreign companies and technology portfolios.  He is also the founder of “ManufactureThis.Build”, an online algorithmic company specializing in financial modeling of production technologies and their applications.   Mr. Ali is a Six Sigma Black Belt. He earned his B.S. in Electrical Engineering from the University of Kentucky and holds a certificate in chemistry from Virginia Tech University.

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Scott Murray

 

Scott Murray has extensive experience as an operation executive and is skilled in business management, product and process development, and strategic leadership of growth of businesses. These experiences ranged from small, privately owned companies to Fortune 500 Companies. Mr. Murray has been the Vice President of Operations of the Company since October 2007. Prior to his tenure with the Company, Mr. Murray was with Motor Wheel Corporation for 17 years having held positions in engineering, marketing, and plant management. He served in the positions of Chief Engineer and Director of Manufacturing prior to the leaving to form a new company. Mr. Murray founded and was CEO of Uretech International Inc. from 1995 through 2004. He directed all process, product, marketing, and commercial activities for that company. As a manufacturer of specialty chemicals and urethane products, Uretech International supplied products to many markets including the automotive, medical, and office furniture industries as well as a variety of industrial applications. Most recently, as Director of Development for McKechnie Automotive, Mr. Murray was responsible for the technical and market introduction of a new product line and the startup of a manufacturing operation for that product line in Kentucky. Mr. Murray is a graduate of Michigan Tech University, where he earned a degree in Metallurgical Engineering. As a member of the Society of Automotive Engineers and the American Iron and Steel Institute served on numerous task forces and technical committees for professional organizations in the automotive industry. He is a past Committee Chairman for the American Society of Non-Destructive Testing. Mr. Murray is a registered Professional Engineer and holds a Six Sigma Black Belt certification.

 

Liya Wang, Ph.D.

 

Dr. Liya Wang leads the research and development activities of the Company for a variety of applications. Previously, Dr. Wang was Principal Scientific Director at CIC Energigune in Spain from 2010 to 2012. There he helped build a world-class new energy research center and led the development of advanced batteries and capacitors. Prior to arriving at CIC Energigune, Dr. Wang was Director of Emerging Technologies from 2006 to 2010 at A123 Systems, a global Li-ion battery manufacturer based in US. He led the development of new generations of Li-ion battery cathodes and the transition of technologies into production. From 2003 to 2006, Dr. Wang worked as R&D Director at Pacific Industrial Development Corp and coordinated the development of nano materials for catalysis and luminescence applications. From 1999 to 2003, he was Manager of Materials Development and Vice President at T/J technologies where he built and led a multi-million dollar battery research program. From 1994 to 1999, he worked at IMRA America as a Researcher on electrochemical capacitors and high-power lithium ion batteries. Dr. Wang received a Bachelor’s and a Master’s degree in Metallurgy from Beijing University of Science and Technology in China, and a Master’s and a PhD degree in Materials Science from University of Michigan in US. He is a Guest Professor at University of Electronic Science and Technology in China and an Adjunct Associate Professor at University of Michigan in USA.

 

Legal Proceedings

 

To our knowledge, neither we nor any of our officers or directors is a party to any material legal proceeding or litigation and such persons know of no material legal proceeding or contemplated or threatened litigation. There are no judgments against us or our officers or directors. None of our officers or directors, promoters or control persons has been convicted of a felony or misdemeanor relating to securities or performance in corporate office.

  

Corporate Governance

 

Audit Committee

 

Our Board has established an Audit Committee, which is composed of Arnold A. Allemang, and Molly P. Zhang and chaired by Steven C. Jones. Pursuant to our Audit Committee charter, the Audit Committee was established for the primary purpose of assisting the Board in its oversight of the Company’s tax, legal regulatory and ethical compliance. The Audit Committee assists the Board in certain areas, including, but not limited to:

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  Oversight and monitoring of the Company’s financial statements, accounting and financial reporting processes, financial statement audits, and other financial information provided by the Company to its shareholders and others;
     
  Overseeing the Company’s compliance with legal, regulatory, and public disclosure requirements;
     
  Oversight of the Company’s registered public accounting firm’s (“independent auditor”) qualifications and independence;
     
  Overseeing the performance of the Company’s independent auditor and the internal audit function;
     
  Overseeing the Company’s systems of disclosure controls and procedures, internal controls over financial reporting, and compliance with ethical standards adopted by the Company;
     
  Oversight of treasury and finance matters;
     
  Oversight and monitoring of enterprise risk management, privacy, and data security;
     
  Oversight of the auditing, accounting, and financial reporting process generally;
     
  Preparation of a report of the Committee to be included in the Company’s annual proxy statement in accordance with any applicable rules of the SEC; and
     
  Review and approval of related-party transactions (as defined by any applicable rules of the SEC and any applicable listing standards of the NASDAQ).

 

The members of the Committee are appointed by the Board at its annual meeting from among the Company’s directors. Members are appointed to serve until their successors are duly elected and qualified by the Board, or until their resignation or removal. The Board determines the number of members on the Committee from time to time, but in any event the Committee is to be composed of at least three Board members or any greater minimum number as required by applicable law, the Company’s Bylaws, or the Company’s contractual obligations. The Board may appoint a chairperson and secretary for the Committee. If the Board does not appoint a chairperson or a secretary, the members of the Committee may elect a chairperson or secretary, respectively, by majority vote. Steven Jones currently serves as Chairman of the Audit Committee.

 

Each member of the Committee is and must be “independent” in accordance with the Company’s contractual obligations and any applicable SEC and NASDAQ rules. The Board determines the standards that are currently applicable to determining whether a member is “independent” and whether each member or nominee member of the Committee satisfies those standards.

 

The members of the Committee must also satisfy other applicable qualification rules of NASDAQ and the SEC. Generally, each member of the Committee must have a strong level of accounting or financial acumen and must be able to read and understand fundamental financial statements. A member of the Committee may not have participated in the preparation of financial statements of the Company or any current subsidiary of it at any time during the past three years. To the extent required by applicable rules of the SEC, at least one member of the Committee must be a “financial expert” as defined by the applicable rules of the SEC. In general, to be considered a “financial expert,” an audit committee member must have the following attributes:

 

  An understanding of generally accepted accounting principles and financial statements.

 

  The ability to assess the general application of generally accepted accounting principles in connection with the accounting for estimates, accruals, and reserves.

 

  Experience preparing, auditing, analyzing, or evaluating financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that can reasonably be expected to be raised by the Company’s financial statements, or experience actively supervising one or more persons engaged in such activities.

 

  An understanding of internal controls and procedures for financial reporting.

 

  An understanding of audit committee functions.

 

Steven Jones and Arnold Allemang qualify as “audit committee financial experts” as the term is defined under the SEC rules.

 

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The Audit Committee has established its pre-approval policies and procedures, pursuant to which the Audit Committee approved the foregoing audit services, provided by Frazier & Deeter in 2017 and 2018 and by RSM for the year ended December 31, 2018 (See Item 9). Consistent with the Audit Committee’s responsibility for engaging the Company’s independent auditors, all audit and permitted non-audit services require pre-approval by the Audit Committee. The Audit Committee approves proposed services and fee estimates for these services. The Audit Committee chairperson or his designee has been designated by the Audit Committee to approve any services arising during the year that were not pre-approved by the Audit Committee.

 

The Audit Committee assists the Board in its general oversight of our financial reporting, internal controls, and audit functions, and is directly responsible for the appointment, compensation and oversight of the work of our independent registered public accounting firm. The Audit Committee reviews and discusses with management and our independent accountants the annual audited and quarterly financial statements (including the disclosures under "Management's Discussion and Analysis of Financial Condition and Results of Operations"), reviews the integrity of the financial reporting processes, both internal and external, reviews the qualifications, performance and independence of our independent accountants, and prepares the Audit Committee Report included in this Annual Report on Form 10-K in accordance with rules and regulations of the Securities and Exchange Commission. The Audit Committee has the power to investigate any matter brought to its attention within the scope of its duties. It also has the authority to retain counsel and advisors to fulfill its responsibilities and duties.

 

Nominating and Corporate Governance Committee

 

Our Board has established and adopted a charter for a Nominating and Corporate Governance Committee (“NGC”). The Committee is composed of Arnold A. Allemang, Steven C. Jones, Molly P. Zhang and Robert Blinstrub. As provided in its charter, the Nomination and Corporate Governance Committee was established for the primary purposes of considering and reporting to the Board on matters relating to the identification, selection, and qualification of Board members and candidates nominated to the Board as well as assisting the Board with respect to corporate governance matters. The NGC is responsible for providing support to the Board in certain areas, including:

 

  Assisting the Board by identifying individuals qualified to become Board members.

 

  Recommending to the Board the director nominees for the next annual meeting of shareholders.

 

  Leading the Board in an annual review of the Board’s performance.

 

  Recommending to the Board director nominees for each committee.

 

  Developing, maintaining, and overseeing the Company’s corporate governance guidelines.

 

  Making recommendations to the Board with respect to corporate governance matters.

 

The members of the NGC are appointed by the Board at its annual meeting from among the Company directors and are appointed to serve until their successors are duly elected and qualified by the Board, or until their resignation or removal. The Board determines the number of members on the NGC from time to time, but in any event the NGC must be composed of at least three Board members or any greater minimum number as required by applicable law, the Company’s Bylaws, or the Company’s contractual obligations. The Board may appoint a chairperson and secretary for the NGC. If the Board does not appoint a chairperson or a secretary, the members of the NGC may elect a chairperson or secretary, respectively, by majority vote. Steven Jones currently serves as the Chairperson of the NGC.

 

Each member of the NGC is and must be “independent” in accordance with the Company’s contractual obligations and any applicable SEC and NASDAQ rules. The Board determines the standards that are currently applicable to determining whether a member is “independent” and whether each member or nominee member of the NGC satisfies those standards.

 

Compensation Committee

 

Our Board has established a Compensation Committee, which is composed of Steven C. Jones and Robert Blinstrub and chaired by Arnold A. Allemang. The Compensation Committee was established for the primary purpose of assisting the Board with the review and determination of executive compensation and the oversight, review, and approval of significant employee benefits programs, policies, and plans. The Board has adopted a Compensation Committee charter.

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The members of the Compensation Committee are appointed by the Board at its annual meeting from among the Company’s directors and are appointed to serve until their successors are duly elected and qualified by the Board, or until their resignation or removal. The Board will determine the number of members on the Compensation Committee from time to time, but in any event the Compensation Committee must be composed of at least three Board members or any greater minimum number as required by applicable law, the Company’s Bylaws, or the Company’s contractual obligations.

 

Each member of the Compensation Committee must be “independent” in accordance with the Company’s contractual obligations and any applicable SEC and NASDAQ rules. Each member of the Compensation Committee must also qualify as an “outside director” for purposes of 162(m) of the Internal Revenue Code of 1986, as amended. The Board shall determine the standards that are currently applicable to determining whether a member is “independent” and whether each member or nominee member of the Compensation Committee satisfies those standards.

 

Executive Committee

 

Our Board has established an Executive Committee, which is composed of Arnold A. Allemang and Steven C. Jones. Pursuant to our Executive Committee charter, the Executive Committee was established for the primary purpose of exercising the powers and duties of the Board between Board Meetings and while the Board is not in session and to implement policy decisions of the Board.

 

During the intervals between meetings of the Board, the Executive Committee may exercise all of the powers and authority of the Board of Directors for the purpose of acting upon matters that should not be postponed until the next scheduled meeting of the Board. The members of the Executive Committee are to exercise their business judgment to act in what they reasonably believe to be in the best interests of the Corporation and its shareholders. The Executive Committee will have all powers and authority of the Board enumerated in the Bylaws of the Corporation, except to:

 

  1. Take action specifically reserved for another committee of the Board;

 

  2. Amend the Corporation’s Articles of Incorporation or Bylaws;

 

  3. Adopt an agreement of merger, conversion, or share exchange;

 

  4. Recommend to shareholders the sale, lease, or exchange of all or substantially all of the Corporation’s property and assets;

 

  5. Recommend to shareholders a dissolution of the Corporation or a revocation of a dissolution;

 

  6. Fill vacancies in the Board;

 

  7. Declare a distribution or dividend or to authorize the issuance of shares; or

 

  8 Take action with respect to any other matter that the Board may not delegate to the Committee under the Michigan Business Corporation Act, the Corporation’s Articles of Incorporation, the Corporation’s Bylaws, or the Corporation’s contractual commitments.

 

Notwithstanding the foregoing, the Board may, by resolution or an amendment to this Charter, restrict the powers and authority of the Executive Committee, in its sole discretion. In addition, the Executive Committee shall comply with all directions of the Board and shall discharge all duties and responsibilities expressly delegated by the Board to the Executive Committee.

 

The Executive Committee may delegate any of its responsibilities, along with the authority to take action in relation to such responsibilities, to one or more subcommittees as the Committee may determine to be appropriate. The Board may appoint a chairperson and secretary for the Compensation Committee. If the Board does not appoint a chairperson or a secretary, the members of the Compensation Committee may elect a chairperson or secretary, respectively, by majority vote. Arnold Allemang currently serves as the Chairperson of the Compensation Committee. 

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Conflicts of Interest

 

Certain potential conflicts of interest are inherent in the relationships between our officers and directors and us.

 

From time to time, one or more of our affiliates may form or hold an ownership interest in and/or manage other businesses both related and unrelated to the type of business that we own and operate. These persons expect to continue to form or hold ownership interests in and/or manage additional businesses which may compete with our business with respect to operations, including financing and marketing, management time and services and potential customers. These activities may give rise to conflicts between or among the interests of us and other businesses with which our affiliates are associated. Our affiliates are in no way prohibited from undertaking such activities, and neither we nor our stockholders will have any right to require participation in such other activities.

 

Further, because we have transacted business and intend to continue to do so with some of our officers, directors and affiliates, as well as with firms in which some of our officers, directors or affiliates have a material interest, including, without limitation, Samsung Ventures, ASC XGS, LLC, XGS II, LLC and AAOF, LP, potential conflicts may arise between the respective interests of us and these related persons or entities. We believe that such transactions will be affected on terms at least as favorable to us as those available from unrelated third-parties.

 

With respect to transactions involving real or apparent conflicts of interest, we have adopted policies and procedures which require that: (i) the fact of the relationship or interest giving rise to the potential conflict be disclosed or known to the directors who authorize or approve the transaction prior to such authorization or approval; and (ii) the transaction be fair and reasonable to us at the time it is authorized or approved by our directors.

 

Risk Oversight

 

The Board of Directors is actively involved in the oversight of risks, including strategic, operational and other risks, which could affect our business. The Board of Directors does not have a standing risk management committee, but administers this oversight function directly through the Audit Committee and the Board of Directors as a whole. The Board of Directors considers strategic risks and opportunities and administers its respective risk oversight function by evaluating management’s monitoring, assessment and management of risks, including steps taken to limit our exposure to known risks, through regular interaction with our senior management and in Board and committee deliberations that are closed to members of management. The interaction with management occurs not only at formal Board and committee meetings but also through periodic and other written and oral communications.

 

Meetings of the Board and Committees

 

The Board met 7 times in 2018. The Board of Directors also acted at times by unanimous written consent, as authorized by our Bylaws and the Michigan Business Corporation Act. The Audit Committee met 6 times in 2018. The Compensation Committee met 2 times in 2018. The Nominating and Governance Committee met 3 times in 2018.

 

Director Independence

 

Our Board of Directors has determined that we currently have five independent directors on our Board of Directors: Arnold A. Allemang, Molly P. Zhang, Steven C. Jones, Dave Pendell and Robert Blinstrub. Philip L. Rose is not considered independent. Because our common stock is not currently listed on a national securities exchange, we have used the definition of “independence” of the NASDAQ Stock Market to make this determination.

 

NASDAQ Listing Rule 5605(a)(2) provides that an “independent director” is a person other than an officer or employee of the Company or any other individual having a relationship that, in the opinion of the Company’s Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. The NASDAQ listing rules provide that a director cannot be considered independent if:

 

  the director is, or at any time during the past three years was, an employee of the Company;

 

  the director or a family member of the director accepted any compensation from the Company in excess of $120,000 during any period of 12 consecutive months within the three years preceding the independence determination (subject to certain exclusions, including, among other things, compensation for Board or Board committee service);

 

  a family member of the director is, or at any time during the past three years was, an executive officer of the Company;

 

  the director or a family member of the director is a partner in, controlling stockholder of, or an executive officer of an entity to which the Company made, or from which the Company received, payments in the current or any of the past three fiscal years that exceed 5% of the recipient’s consolidated gross revenue for that year or $200,000, whichever is greater (subject to certain exclusions);

 

  the director or a family member of the director is employed as an executive officer of an entity where, at any time during the past three years, any of the executive officers of the Company served on the compensation committee of such other entity; or

 

  the director or a family member of the director is a current partner of the Company’s outside auditor, or at any time during the past three years was a partner or employee of the Company’s outside auditor, and who worked on the Company’s audit.

 

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The following is a summary of certain of the experience, qualifications, attributes and skills that led the Company’s Board of Directors to conclude that such person should serve as a director or officer. This information supplements the biographical information provided above.

 

Philip L. Rose, Ph.D., Chief Executive Officer, President, Treasurer & Director. Dr. Rose has extensive international business management experience, having previously served as the chief executive officer, president and director of several companies based both in the United States and abroad, and significant experience in the electronic and specialty materials markets. Based on his practical leadership and industry experience, Dr. Rose provides valuable experience and knowledge.

  

Arnold A. Allemang, Chairman of the Board. Mr. Allemang’s previous board service for several corporations and substantial managerial and operational history at The Dow Chemical Company will prove valuable to the Board as it seeks to implement and maintain growth strategies that will enable the Company to succeed.

 

Steven C. Jones, Director. Mr. Jones’ background in investment banking and in investing, as well as his prior experience serving as a member of several boards and a senior executive in several companies, enables him to provide the Board with valuable insight and expertise.

 

Dave Pendell, Director. Mr. Pendell’s experience in successfully building businesses in a range of end-use markets will prove very useful to the Board.

 

Molly P. Zhang, Director. Ms. Zhang’s experience supporting and advising companies with respect to their growth and business development will enable her to assist the Board and management as they endeavor to expand the Company.

 

Robert Blinstrub, Director. Mr. Blinstrub experience founding, running and selling a successful global supply company of innovative engineered products for light vehicles will enable him to assist the Board and management as they endeavor to expand the Company globally and on matters of supplier relations in the key field of automotives.

 

Code of Ethics

 

We have a Code of Ethics applicable to our principal executive, financial and accounting officers, a copy of which is referenced as Exhibit 14 to this report.

 

ITEM 11. EXECUTIVE COMPENSATION

 

Summary Compensation

 

The following table sets forth all compensation earned and accrued, in all capacities, during the fiscal years ended December 31, 2018 and 2017 by our named executive officers:

 

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Name and Position   Year   Salary   Bonus   Option
Expense(1)
  Other   Total  
Philip L. Rose, Chief Executive   2018   $ 275,000   $ 30,000     132,760     $ 437,760  
Officer, Secretary, Treasurer   2017   $ 275,000   $ 17,000     470,771   12,881   $ 775,652  

Jacqueline M. Lemke

                Chief Financial Officer

  2018   $ 18,077               18,077  
Bamidele Ali, Chief Commercial Officer   2018   $ 215,000     20,000     52,329     $ 287,329  
    2017   $ 153,808           22,939   $ 176,747  
Scott Murray, Vice President of   2018   $ 151,861   $ 15,000       880   $ 167,741  
Operations   2017   $ 148,077   $ 15,000     85,242   1,309   $ 249,628  
Liya Wang, Vice President of   2018   $ 200,000   $ 10,000         $ 210,000  
Research & Development   2017   $ 200,000   $     64,919     $ 264,919  

  

  (1) Option expense is calculated using the fair value of options that vested during the period. See Note 12 to our financial statements included in this report.

  

Outstanding Equity Awards

 

The Board of Directors of the Company occasionally awards stock options and restricted common stock under the Company’s 2017 Plan. Additionally, stock warrants have been issued to certain officers and directors of the Company in conjunction with financing agreements. The following table sets forth information regarding outstanding stock option and stock warrant awards as of December 31, 2018: 

 

Name and Position(s)   Number of
Securities
Underlying
Unexercised
Options and
Warrants that
are currently
Exercisable
    Number of
Securities
Underlying
Unexercised
Options and
Warrants that
are currently
Unexercisable
    Exercise
Price
    Expiration
Date
Philip L. Rose, Chief Executive Officer, Secretary, Treasurer     211,244       118,756     $ 8.00     7/24/2024
Jacqueline M. Lemke, Chief Financial Officer     -       120,000     $ 8.00     12/31/2025
Bamidele Ali, Chief Commercial Officer     20,000       60,000      $ 8.00     7/24/2024
Scott Murray, Vice President of Operations     40,000           $ 8.00     7/24/2024
Liya Wang, Vice President of Research & Development     37,500           $ 8.00     7/24/2024

 

  

Director Compensation

 

Each of our non-employee Directors who was not appointed as a representative of a corporate investor in XG Sciences is entitled to receive compensation in accordance with director compensation plans as amended by the full Board of Directors from time to time. The following table sets forth information concerning the compensation of eligible Directors for the years ended December 31, 2018 and 2017:

Name   Period   Cash Compensation     Restricted Stock (1)    Option
Expense(1)
        Total  
Arnold Allemang   2018   $ 11,000     $ 20,000       9,689         $ 40,689  
    2017   $ 25,000     $ 10,000       26,478         $ 61,478  
Steven Jones   2018   $ 47,000     $ 20,000        8,869         $ 75,869  
    2017   $ 25,000     $ 10,000        25,872         $ 60,872  
David Pendell   2018   $ 12,000     $ 20,000       11,937         $ 43,937  
    2017   $ 17,500     $ 10,000       4,494         $ 31,994  
Molly P. Zhang   2018   $ 12,000     $ 20,000       2,097         $ 34,097  

 

(1)

We granted stock options and restricted stock to each of our Board members as part of their compensation package. On September 30, 2018 and August 10, 2017, each of the 4 independent Board members received 2,500 stock options and 2,500 shares of restricted stock for their Board services. The options were granted at a price of $8.00 per share and vest ratably over a four-year period beginning on the one-year anniversary. The stock options had an aggregate grant date fair value of $29,580 and $26,120 on September 30, 2018 and August 10, 2017, respectively. Option expense is calculated using the fair value of options that vested during the period. See Note 12 to the December 31, 2018 financial statements included in this report. The restricted stock issued to the Board members has an aggregate fair value of $160,000 and vest ratably in arrears over four quarters on the last day of each fiscal quarter following the grant date. As of December 31, 2018, and 2017, 10,000 and 5,000 of the 20,000 shares of restricted stock issued had vested, resulting in compensation expense of $80,000 and $40,000 in for the years ended December 31, 2018 and 2017 respectively.

 

 

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2017 Stock Option Plan

 

The previously established 2007 Plan, which was scheduled to expire on October 30, 2017 and under which we granted key employees and directors options to purchase shares of our common stock at not less than fair market value as of the grant date. On May 4, 2017, the Board approved the 2017 Plan to replace the 2007 Plan, which became effective upon the approval of the stockholders holding a majority of the voting power in the Company on July 18, 2017. The 2017 Plan replaces the 2007 Plan and authorizes us to issue awards (stock options and restricted stock) with respect of a maximum of 1,200,000 shares of our common stock, which equals the number of shares authorized under the 2007 Plan.   

 

The fair value of the options granted was estimated on the date of grant using the Black Scholes option-pricing model. As of December 31, 2018, and 2017, respectively, 797,875 and 677,125 options were outstanding. Vesting of the option shares with the employees range from immediately to 25% per year. Rights to exercise the options vest immediately upon a change in control of the Company or termination of the employee’s continuous service due to death or disability. The options expire at various dates through 2024.

 

Employment Agreements and Potential Payments Upon Termination

 

The Company is party to two employment agreements. The following descriptions summarize the commitments in these arrangements.

 

On December 16, 2013, the Company entered into an employment agreement with Philip L. Rose to serve as the Company’s Chief Executive Officer commencing on January 6, 2014 and continuing indefinitely, subject to termination by the Company for cause or without cause, or resignation by Dr. Rose with or without cause. If the Company terminates Dr. Rose without cause, or if Dr. Rose resigns with cause, the Company has agreed to pay Dr. Rose’s base salary for a period of six months, any permitted COBRA health insurance premiums for Dr. Rose and his family, and any pro-rata bonus amounts that are deemed to have been earned during Dr. Rose’s employment period prior to termination. In the event that the Company terminates Dr. Rose with cause, or if Dr. Rose resigns without cause, the Company has no further obligations beyond the severance date. The Agreement provides that Dr. Rose will be paid an initial base salary of $275,000 annually, with an annual Target Bonus opportunity of 30% of base salary, which may be earned up to a level of 150% of the Target Bonus under certain conditions. Additionally, Dr. Rose was awarded an option to purchase a total of 330,000 shares of common stock at $8.00 per share and with a life of seven years from the award date. These stock options have vested or will vest as follows: 171,658 on July 24, 2017, 39,586 on July 24, 2018, July 24, 2019, July 24, 2020 and 39,584 on July 24, 2021.

  

On March 22, 2017, the Company entered into an employment agreement with Bamidele Ali to serve as the Company’s Chief Commercial Officer. The employment agreement: (i) establishes an annual base salary of $215,000, (ii) grants the employee eligibility to participate in the Company’s Management Incentive Plan with a target annual bonus of 30% of the employee’s annual base salary, and (iii) provides for other fringe benefits, including a stock option grant to purchase 80,000 shares of the Company’s common stock at a strike price of $8.00 per share and with a life of seven years from the award date. These stock options vest ratably over a four-year period beginning on the one-year anniversary; 20,000 on July 24, 2018 and $20,000 each of the three years thereafter until 2021. The employment agreement creates an “at will” employment relationship. However, if the Company terminates the employee’s employment without cause (as defined in the employment agreement), then the Company must pay as severance 100% of the COBRA premiums for the employee’s family health insurance benefits and a pro-rata portion of any annual bonus that would be due for the year in which termination occurs.  

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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

As of March 25, 2019 (the “Ownership Date”), the following table sets forth certain information with respect to the beneficial ownership of our common stock, Series A Preferred Stock and Series B Preferred Stock by (i) by each of our directors and executive officers, (ii) by all of our director and executive officers as a group, and (iii) by each person or entity known by us to beneficially own more than 5% of any class of our outstanding shares. We have determined the number and percentage of shares beneficially owned by such person in accordance with Rule 13d-3 under the Exchange Act.

 

Name and Address of Beneficial Owner(1)(2)

 

 

 

 

 

 

Shares of
Common Stock
Beneficially
Owned(3)

   

 

 

 

 

Percentage of
Shares of
Common Stock
Beneficially
Owned(4)

   

 

Shares of
Common Stock
Underlying
Shares of
Series A
Preferred
Stock
Beneficially
Owned(5)

   

Percentage of
Shares of
Common Stock
Underlying
Shares of
Series A
Preferred
Stock
Beneficially
Owned(6)

   

Total
Percentage of
Outstanding
Shares of Fully
Converted
Voting
Common Stock
Beneficially
Owned(7)

 
Directors, Executive Officers, and Significant Employees                                        
Philip L. Rose(8)     226,400       5.6 %                 3.0 %
Arnold A. Allemang(9)     453,719       11.8 %                 6.1 %
Steven C. Jones(10)     268,042       7.0 %                 3.6 %
David G. Pendell(11)     44,579       1.2 %     5,919       *       *  
Molly P. Zhang(12)     5,625       *                   *  
Jacqueline M. Lemke(13)                              
Bamidele Ali(14)     20,000       *                   *  
Scott Murray(15)     40,100       1.0 %                  *  
Robert Blinstrub(16)                              
Liya Wang(17)     37,500       1.0 %                  *  
Directors & Executive Officers as a Group (9 persons)     1,095,965       26.0 %     5,919       *       14.1 %
                                         
Certain Other Beneficial Owners – Over 5% Ownership                                        
Aspen Advanced Opportunity Fund, LP(18)     3,638,885       48.9 %     3,638,885       71.3 %     40.8 %
POSCO(19)     481,250       11.8 %     281,250       7.7 %     6.5 %
ASC-XGS, LLC(20)     311,293       7.6 %     311,293       8.8 %     4.2 %
XGS II, LLC(21)     360,946       8.7 %     360,946       9.8 %     4.8 %
SVIC No. 15 New Technology Business Inves