VIVOS INC 10-K

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. Market Information The Company’s common stock is traded on the OTCQB Marketplace under the symbol “RDGL.” The following table sets forth, in U.S. dollars, the high and low closing prices for each of the calendar quarters indicated, as reported by the OTCQB Marketplace, for the past two fiscal years. Such OTCQB Marketplace quotations reflect inter-dealer prices, without markup, markdown or commissions and, particularly because our common stock is traded infrequently, may not necessarily represent actual transactions or a liquid trading market. High Low 2019 Quarter ended December 31 $ 0.057 $ 0.0275 Quarter ended September 30 $ 0.0893 $ 0.0112 Quarter ended June 30 $ 0.0392 $ 0.02 Quarter ended March 31 $ 0.068 $ 0.0192 2020 Quarter ended December 31 $ 0.245 $ 0.0187 Quarter ended September 30 $ 0.0387 $ 0.0226 Quarter ended June 30 $ 0.0495 $ 0.0135 Quarter ended March 31 $ 0.402 $ 0.02 Holders As of March 18, 2021, we had 297,346,254 shares of common stock, par value $0.001 per share, issued and outstanding, which were held by approximately 236 shareholders of record. Our transfer agent is Pacific Stock Transfer, 6725 Via Austi Pkwy, Suite 300, Las Vegas, NV 89119. Securities Authorized for Issuance Under Equity Compensation Plans The following table sets forth information as of December 31, 2020 with respect to the Company’s equity compensation plans previously approved by stockholders and equity compensation plans not previously approved by stockholders. 24 Equity Compensation Plan Information Plan Category Number of securities to be issued upon exercise of outstanding options, warrants and rights Weighted-average exercise price of outstanding options, warrants and rights Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (a) (b) (c) Equity compensation plans approved by stockholders - $ - 32,836,047 Equity compensation plans not approved by stockholders 34,370,493 $ 0.13 - Total 34,370,493 (1) $ 0.13 (1) - (1) In addition to the 2015 Plan (defined below), the Company has individual compensation arrangements under which equity securities are authorized for issuance in exchange for consideration in the form of goods or services of certain individuals. 2015 Omnibus Securities and Incentive Plan In October 2015, our Board of Directors and stockholders approved the adoption of the 2015 Omnibus Securities and Incentive Plan (the “ 2015 Plan ”). The 2015 Plan authorizes an aggregate number of shares of common stock for issuance to all employees of the Company or any subsidiary of the Company, any non-employee director, consultants and independent contractors of the Company or any subsidiary, and any joint venture partners (including, without limitation, officers, directors and partners thereof) of the Company or any subsidiary. The aggregate number of shares that may be issued under the Plan shall not exceed twenty percent (20%) of the issued and outstanding shares of common stock on an as converted primary basis on a rolling basis. For calculation purposes, the As Converted Primary Shares (as defined in the 2015 Plan) shall include all shares of common stock and all shares of common stock issuable upon the conversion of outstanding preferred stock and other convertible securities, but shall not include any shares of common stock issuable upon the exercise of options, warrants and other convertible securities issued pursuant to the 2015 Plan. As of December 31, 2020, the Converted Primary Shares calculation results in 32,836,047 aggregate shares that may be issued under the 2015 Plan. The 2015 Plan is administered by the Company’s Compensation Committee, who may issue awards in the form of stock options and/or restricted stock awards. Effective December 31, 2020, an aggregate total of 1,162,500 restricted stock units (“ RSUs ”) under the 2015 Plan were authorized, but as of March 18, 2021, 385,000 had been issued. Recent Sales of Unregistered Securities Below is a description of all unregistered securities issued by the Company during and subsequent to the quarter ended December 31, 2020, through the date of this report. Each of the issuances identified below were issued in transactions exempt from registration under the Securities Act of 1933, as amended, in reliance on Section 3(a)(9) and/or 4(2) thereof. Issuances During the Quarter Ended December 31, 2020 During the month of November 2020, the Company issued 933,750 shares of common stock in the exchange of 1,867,500 warrants to an accredited investor. During the month of December 2020, the Company issued 7,207,400 shares of common stock in consideration for the conversion of 576,592 shares of Series B Convertible Preferred issued to an accredited investor. During the month of December 2020, the Company issued 4,759,435 shares of common stock in the cashless exercise of 6,860,000 warrants. In December 2020, the Chief Executive Officer, exercised 2,500,000 options into shares of common stock valued at $60,000. In addition, the Company raised $1,138,800 in the Regulation A+ from November 30, 2020 through December 3, 2020 and issued 42,177,778 shares of common stock and sold 19,200,000 warrants for $19,200 in these offerings. 25 Issuances Subsequent to December 31, 2020 In January 2021, the Company issued 1,259,250 shares of common stock in conversion of a convertible note payable of $50,000 and accrued interest of $370. This conversion resulted in a loss on conversion of $176,295. In January 2021, the Company issued 3,423,968 shares of common stock in the cashless exercise of 4,875,000 warrants. In January 2021, the Company issued 384,445 shares of common stock in conversion of accounts payable in the amount of $50,000. ITEM 6. SELECTED FINANCIAL DATA. This item is not applicable to the Company because the Company is a smaller reporting company as defined by Rule 12b-2 under the Securities Exchange Act of 1934, as amended. ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. The following discussion and analysis is intended as a review of significant factors affecting the Company’s financial condition and results of operations for the periods indicated. The discussion should be read in conjunction with the Company’s financial statements and the notes presented herein. In addition to historical information, the following Management’s Discussion and Analysis of Financial Condition and Results of Operations contains forward-looking statements that involve risks and uncertainties. The Company’s actual results could differ significantly from those anticipated in these forward-looking statements as a result of the risk factors set forth above in Item 1A and other factors discussed in this Annual Report. 26 Results of Operations Comparison for the Year Ended December 31, 2020 and December 31, 2019 The following table sets forth information from the Company’s statements of operations for the years ended December 31, 2020 and 2019. Year Ended December 31, 2020 Year Ended December 31, 2019 Revenues, net $ 7,000 $ 9,500 Cost of goods sold 5,608 6,028 Gross profit 1,392 3,472 Operating expense 673,913 1,333,451 Operating loss (672,521 ) (1,329,979 ) Non-operating expense (284,471 ) (280,118 ) Net loss $ (956,992 ) $ (1,610,097 ) Revenue and Cost of Goods Sold We had $7,000 in revenues for the year ended December 31, 2020, compared to $9,500 in revenue for the year ended December 31, 2019, a period over period decrease of $2,500. These revenues are reflected net of discounts. The decrease was a result of the Company’s recognition of their sales for IsoPet®. We had $5,608 in cost of goods sold for the year ended December 31, 2020, compared to $6,028 in cost of goods sold for the year ended December 31, 2019, a period over period decrease of $420. The decrease was a result of the Company’s recognition of their sales for IsoPet®. Management does not anticipate that the Company will generate sufficient revenue to sustain operations until such time as the Company secures multiple revenue-generating arrangements with respect to RadioGel™ and/or any of our other brachytherapy technologies. Operating Expenses Operating expenses for the years ended December 31, 2020 and 2019 consisted of the following: Year ended December 31, 2020 Year ended December 31, 2019 Professional fees $ 243,942 $ 462,952 Stock options and warrants consideration 2,176 608,588 Payroll expense 234,094 120,000 Research and development 84,668 67,584 General and administrative expense 109,033 74,327 $ 673,913 $ 1,333,451 Operating expenses for the years ended December 31, 2020 and 2019 were $673,913 and $1,333,451, respectively. The decrease in operating expense from 2019 to 2020 is attributable to a slow down in operations as a result of cash flow issues the Company incurred, decreased stock options and warrants granted ($608,588 for the year ended December 31, 2019 versus $2,176 for the year ended December 31, 2020) as a result of granting of options with respect to revised employment agreements, increased research and development ($67,584 for the year ended December 31, 2019 versus $84,668 for the year ended December 31, 2020) as a result of a ramp up in testing, increased general and administrative expense ($74,327 for the year ended December 31, 2019 versus $109,033 for the year ended December 31, 2020), and decreased professional fees ($462,952 for the year ended December 31, 2019 versus $243,942 for the year ended December 31, 2020), which resulted from decreased consulting expenses of the Company, as the Company was focused on product development. 27 Non-Operating Income (Expense) Non-Operating income (expense) for the years ended December 31, 2020 and 2019 consisted of the following: Year ended December 31, 2020 Year ended December 31, 2019 Interest expense $ (287,471 ) $ (261,374 ) Net gain (loss) on settlement of debt - (18,744 ) Other income 3,000 - $ (284,471 ) $ (280,118 ) Non-operating income (expense) for the year ended December 31, 2020 varied from the year ended December 31, 2019 primarily due to an increase in interest expense, attributable to the notes payable activity from 2019 to 2020. Net Loss The Company’s net loss for the years ended December 31, 2020 and 2019 was $956,992 and $1,610,097, respectively, as a result of the items described above. Liquidity and Capital Resources At December 31, 2020, the Company had working capital of $32,034, as compared to negative working capital of $1,479,689 at December 31, 2019. During the year ended December 31, 2020, the Company experienced negative cash flow from operations of $875,807 and realized $1,759,130 of cash flows from financing activities. As of December 31, 2020, the Company did not have any commitments for capital expenditures. Cash used in operating activities increased from $837,113 for the year ended December 31, 2019 to $875,807 for the year ended December 31, 2020. Cash used in operating activities was primarily a result of the Company’s non-cash items, such as loss from operations, loss on preferred and common stock and stock options and warrants issued for services and other expenses. Cash provided from financing activities increased from $852,000 for the year ended December 31, 2019 to $1,759,130 for the year ended December 31, 2020. The increase in cash provided from financing activities was primarily a result of increase in proceeds from the Regulation A+ where the Company raised $1,662,780 from common stock and warrant issuances, $60,000 from the exercise of stock options, plus proceeds of $150,000 from convertible notes, which $50,000 was repaid. In 2019, the Company raised $737,000 from related parties and through convertible notes. The Company has generated material operating losses since inception. The Company had a net loss of $956,992 for the year ended December 31, 2020, and a net loss of $1,610,097 for the year ended December 31, 2019. The Company expects to continue to experience net operating losses for the foreseeable future. Historically, the Company has relied upon investor funds to maintain its operations and develop the Company’s business. The Company anticipates raising additional capital within the next twelve months for working capital as well as business expansion, although the Company can provide no assurance that additional capital will be available on terms acceptable to the Company, if at all. If the Company is unable to obtain additional financing to meet its working capital requirements, it may have to curtail its business or cease all operations. 28 The Company requires funding of at least $1.8 million per year to maintain current operating activities. Over the next 24 months, the Company believes it will cost approximately $9 million to fund: (1) fund the FDA approval process to conduct human clinical trials, (2) conduct Phase I, pilot, clinical trials, (3) activate several regional clinics to administer IsoPet ® across the county, (4) create an independent production center within the current production site to create a template for future international manufacturing, and (5) initiate regulatory approval processes outside of the United States. The principal variables in the timing and amount of spending for the brachytherapy products in the next 12 to 24 months will be the FDA’s classification of the Company’s brachytherapy products as Class II or Class III devices (or otherwise) and any requirements for additional studies, which may possibly include clinical studies. Thereafter, the principal variables in the amount of the Company’s spending and its financing requirements would be the timing of any approvals and the nature of the Company’s arrangements with third parties for manufacturing, sales, distribution and licensing of those products and the products’ success in the U.S. and elsewhere. The Company intends to fund its activities through strategic transactions such as licensing and partnership agreements or additional capital raises. Although the Company is seeking to raise additional capital and has engaged in numerous discussions with investment bankers and investors, to date, the Company has not received firm commitments for the required funding. Based upon its discussions, the Company anticipates that if the Company is able to obtain the funding required to retire outstanding debt, pay past due payables and maintain its current operating activities, that the terms associated with such funding will result in material dilution to existing shareholders. Recent geopolitical events, including the inherent instability and volatility in global capital markets, as well as the lack of liquidity in the capital markets, could impact the Company’s ability to obtain financing and its ability to execute its business plan. Contractual Obligations (payments due by period as of December 31, 2020) Contractual Obligation Total Payments Due Less than 1 Year 1-3 Years 3-5 Years More than 5 Years License Agreement with Battelle Memorial Institute $ 14,000 $ 10,000 * $ 4,000 $ - $ - *This was paid December 30, 2020 Effective March 2012, the Company entered into an exclusive license agreement with Battelle Memorial Institute regarding the use of its patented RadioGel™ technology. This license agreement originally called for a $17,500 nonrefundable license fee and a royalty based on a percent of gross sales for licensed products sold; the license agreement also contains a minimum royalty amount to be paid each year starting with 2013. The license agreement was most recently amended on December 20, 2018, and pursuant to the amendment the maintenance fee schedule was updated for minimum royalties, as well as the increase in royalties from one percent (1%) to two percent (2%), then on October 8, 2019 to reduce the fee back to one percent (1%). Our Chief Executive Officer currently works from his home office in virtual communication with key personnel. Cadwell Laboratories, which is controlled by Carl Cadwell, a director of the Company, provides office space to management on an as-needed basis until such time as the Company leases permanent office space. Off-Balance Sheet Arrangements The Company does not have any off-balance sheet arrangements that are reasonably likely to have a current or future effect on the Company’s financial condition, revenues, results of operations, liquidity or capital expenditures. Accounting Policies Use of Estimates The preparation of financial statements in accordance with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of financial statements and the reported amounts of revenues and expenses during the reporting period. Estimates the Company considers include criteria for stock-based compensation expense, and valuation allowances on deferred tax assets. Actual results could differ from those estimates. 29 Fixed Assets Fixed assets are carried at the lower of cost or net realizable value. Production equipment with a cost of $2,500 or greater and other fixed assets with a cost of $1,500 or greater are capitalized. Major betterments that extend the useful lives of assets are also capitalized. Normal maintenance and repairs are charged to expense as incurred. When assets are sold or otherwise disposed of, the cost and accumulated depreciation are removed from the accounts and any resulting gain or loss is recognized in operations. Depreciation is computed using the straight-line method over the following estimated useful lives: Production equipment: 3 to 7 years Office equipment: 2 to 5 years Furniture and fixtures: 2 to 5 years Leasehold improvements and capital lease assets are amortized over the shorter of the life of the lease or the estimated life of the asset. Management of the Company reviews the net carrying value of all of its equipment on an asset by asset basis whenever events or changes in circumstances indicate that its carrying amount may not be recoverable. These reviews consider the net realizable value of each asset, as measured in accordance with the preceding paragraph, to determine whether impairment in value has occurred, and the need for any asset impairment write-down. License Fees License fees are stated at cost, less accumulated amortization. Amortization of license fees is computed using the straight-line method over the estimated economic useful life of the asset. The Company periodically reviews the carrying values of capitalized license fees and any impairments are recognized when the expected future operating cash flows to be derived from such assets are less than their carrying value. Patents and Intellectual Property While patents are being developed or pending, they are not being amortized. Management has determined that the economic life of the patents to be ten years and amortization, over such ten-year period and on a straight-line basis will begin once the patents have been issued and the Company begins utilization of the patents through production and sales, resulting in revenues. The Company evaluates the recoverability of intangible assets, including patents and intellectual property on a continual basis. Several factors are used to evaluate intangibles, including, but not limited to, management’s plans for future operations, recent operating results and projected and expected undiscounted future cash flows. Revenue Recognition In May 2014, the Financial Accounting Standards Board (“ FASB ”) issued Accounting Standard Update (“ ASU ”) No. 2014-09, Revenue from Contracts with Customers (Topic 606). This standard provides a single set of guidelines for revenue recognition to be used across all industries and requires additional disclosures. The updated guidance introduces a five-step model to achieve its core principal of the entity recognizing revenue to depict the transfer of goods or services to customers at an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The Company adopted the updated guidance effective January 1, 2018 using the full retrospective method. 30 Under ASC 606, in order to recognize revenue, the Company is required to identify an approved contract with commitments to preform respective obligations, identify rights of each party in the transaction regarding goods to be transferred, identify the payment terms for the goods transferred, verify that the contract has commercial substance and verify that collection of substantially all consideration is probable. The adoption of ASC 606 did not have an impact on the Company’s operations or cash flows. Net Loss Per Share The Company accounts for its loss per common share by replacing primary and fully diluted earnings per share with basic and diluted earnings per share. Basic loss per share is computed by dividing loss available to common stockholders (the numerator) by the weighted-average number of common shares outstanding (the denominator) for the period and does not include the impact of any potentially dilutive common stock equivalents. The computation of diluted earnings per share is similar to basic earnings per share, except that the denominator is increased to include the number of additional common shares that would have been outstanding if potentially dilutive common shares had been issued. When the Company incurs a loss, the denominator is not increased by the potentially dilutive common shares as the effect would be anti-dilutive. Research and Development Costs Research and developments costs, including salaries, research materials, administrative expenses and contractor fees, are charged to operations as incurred. The cost of equipment used in research and development activities which has alternative uses is capitalized as part of fixed assets and not treated as an expense in the period acquired. Depreciation of capitalized equipment used to perform research and development is classified as research and development expense in the year computed. Income Taxes The Company accounts for income taxes under FASB ASC Topic 740-10-25 (“ ASC 740-10-25 ”). Under ASC 740-10-25, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under ASC 740-10-25, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. 31 The Company files income tax returns in the U.S. federal jurisdiction. Interest costs and penalties related to income taxes, if any, will be classified as interest expense and general and administrative costs, respectively, in the Company’s financial statements. For the years ended December 31, 2020 and 2019, the Company did not recognize any interest or penalty expense related to income taxes. The Company believes that it is not reasonably possible for the amounts of unrecognized tax benefits to significantly increase or decrease within the next 12 months. Fair Value of Financial Instruments The Company adopted ASC Topic 820 (“ Fair Value Measurements ”) as of January 1, 2008 for financial instruments measured as fair value on a recurring basis. ASC Topic 820 defines fair value, established a framework for measuring fair value in accordance with accounting principles generally accepted in the United States and expands disclosures about fair value measurements. Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC Topic 820 established a three-tier fair value hierarchy which prioritizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). These tiers include: - Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets; - Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and - Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. Stock-Based Compensation The Company recognizes compensation costs under FASB ASC Topic 718, Compensation – Stock Compensation and ASU 2018-07. Companies are required to measure the compensation costs of share-based compensation arrangements based on the grant-date fair value and recognize the costs in the financial statements over the period during which employees are required to provide services. Share based compensation arrangements include stock options, restricted share plans, performance-based awards, share appreciation rights and employee share purchase plans. As such, compensation cost is measured on the date of grant at their fair value. Such compensation amounts, if any, are amortized over the respective vesting periods of the option grant. Derivative Liabilities and Beneficial Conversion Feature The Company evaluates its convertible debt, options, warrants or other contracts, if any, to determine if those contracts or embedded components of those contracts qualify as derivatives to be separately accounted for in accordance with Accounting Standards Codification Topic 815, Accounting for Derivative Instruments and Hedging Activities (“ ASC 815 ”) as well as related interpretations of this standard and Accounting Standards Update 2017-11, which was adopted by the Company effective January 1, 2018. In accordance with this standard, derivative instruments are recognized as either assets or liabilities in the balance sheet and are measured at fair values with gains or losses recognized in earnings. Embedded derivatives that are not clearly and closely related to the host contract are bifurcated and are recognized at fair value with changes in fair value recognized as either a gain or loss in earnings. 32 The result of this accounting treatment is that the fair value of the derivative instrument is marked-to-market each balance sheet date and with the change in fair value recognized in the statement of operations as other income or expense. Upon conversion, exercise or cancellation of a derivative instrument, the instrument is marked to fair value at the date of conversion, exercise or cancellation than that the related fair value is removed from the books. Gains or losses on debt extinguishment are recognized in the statement of operations upon conversion, exercise or cancellation of a derivative instrument after any shares issued in such a transaction are recorded at market value. The classification of derivative instruments, including whether such instruments should be recorded as liabilities or as equity, is re-assessed at the end of each reporting period. Equity instruments that are initially classified as equity that become subject to reclassification are reclassified to liability at the fair value of the instrument on the reclassification date. Instruments that become a derivative after inception are recognized as a derivative on the date they become a derivative with the offsetting entry recorded in earnings. The Company determines the fair value of derivative instruments and hybrid instruments, considering all of the rights and obligations of each instrument, based on available market data using the Black-Scholes model, adjusted for the effect of dilution, because it embodies all of the requisite assumptions (including trading volatility, estimated terms, dilution and risk-free rates) necessary to fair value these instruments. For instruments in default with no remaining time to maturity the Company uses a one-year term for their years to maturity estimate unless a sooner conversion date can be estimated or is known. Estimating fair values of derivative financial instruments requires the development of significant and subjective estimates that may, and are likely to, change over the duration of the instrument with related changes in internal and external market factors. In addition, option-based techniques (such as Black-Scholes model) are highly volatile and sensitive to changes in the trading market price of our common stock. The Company accounts for the beneficial conversion feature on its convertible instruments in accordance with ASC 470-20. The Beneficial Conversion Feature (“BCF”) is normally characterized as the convertible portion or feature that provides a rate of conversion that is below market value or in the money when issued. The Company records a BCF when these criteria exist, when issued. BCFs that are contingent upon the occurrence of a future event are recorded when the contingency is resolved. To determine the effective conversion price, the Company first allocates the proceeds received to the convertible instrument, and then use those allocated proceeds to determine the effective conversion price. The intrinsic value of the conversion option should be measured using the effective conversion price for the convertible instrument on the proceeds allocated to that instrument. The accounting for a BCF requires that the BCF be recognized by allocating the intrinsic value of the conversion option to additional paid in capital, resulting in a discount to the convertible instrument. This discount should be accreted from the date on which the BCF is first recognized through the earliest conversion date for instruments that do not have a stated redemption date. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. This item is not applicable to the Company because the Company is a smaller reporting company as defined by Rule 12b-2 under the Securities Exchange Act of 1934. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. All financial information required by this Item is included on the pages immediately following the Index to Financial Statements appearing on page F-1 and is hereby incorporated by reference. ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. None 33