株探米国株
英語
エドガーで原本を確認する
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended September 30, 2023

 

or

 

☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from ________________ to ________________

 

Commission file number 001-40992

 

SURGEPAYS, INC.

(Exact name of registrant as specified in its charter)

 

Nevada   98-0550352

(State or other jurisdiction of

incorporation or organization)

  

(I. R. S. Employer

Identification No.)

 

3124 Brother Blvd, Suite 104    
Bartlett TN   38133
(Address of principal executive offices)   (Zip Code)

 

901-302-9587

(Registrant’s telephone number, including area code)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock   SURG  

The Nasdaq Stock Market LLC

(Nasdaq Capital Market)
Common Stock Purchase Warrants   SURGW  

The Nasdaq Stock Market LLC

(Nasdaq Capital Market)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the 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 (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or 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 to Section 7(a)(2)(B) of the Securities Act. ☐

 

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

 

The number of shares of the registrant’s common stock outstanding as of November 10, 2023 was 14,228,202 shares.

 

 

 

 

 

TABLE OF CONTENTS

 

PART I 2
     
ITEM 1: FINANCIAL STATEMENTS 2
  Consolidated Balance Sheets as of September 30, 2023 (Unaudited) and December 31, 2022 3
  Consolidated Statements of Operations (Unaudited) for the three and nine months ended September 30, 2023, and 2022 4
  Consolidated Statement of Shareholders’ Equity (Unaudited) for the three and nine months ended September 30, 2023, and 2022 5-6
  Consolidated Statements of Cash flow (Unaudited) for the nine months ended September 30, 2023, and 2022 7
  Notes to Consolidated Financial Statements (Unaudited) 8
ITEM 2: MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION 53
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK 67
ITEM 4: CONTROLS AND PROCEDURES 67
     
PART II 68
   
ITEM 1: LEGAL PROCEEDINGS 68
ITEM 1A: RISK FACTORS 69
ITEM 2: UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS 69
ITEM 3: DEFAULTS UPON SENIOR SECURITIES 69
ITEM 4: MINE SAFETY DISCLOSURE 69
ITEM 5: OTHER INFORMATION 69
ITEM 6: EXHIBITS 70
SIGNATURES 71

 

1

 

PART I

 

ITEM 1. FINANCIAL STATEMENTS

 

SurgePays, Inc. and Subsidiaries

 

    Page(s)
     
Consolidated Balance Sheets   3
     
Consolidated Statements of Operations   4
     
Consolidated Statements of Changes in Stockholders’ Equity   5 - 6
     
Consolidated Statements of Cash Flows   7
     
Notes to Consolidated Financial Statements   8 - 52

 

2

 

Consolidated Balance Sheets

 

    September 30, 2023     December 31, 2022  
    (Unaudited)     (Audited)  
             
Assets                
                 
Current Assets                
Cash   $ 12,731,449     $ 7,035,654  
Accounts receivable - net     9,774,428       9,230,365  
Inventory     14,549,407       11,186,242  
Prepaids     197,879       111,524  
Total Current Assets     37,253,163       27,563,785  
                 
Property and equipment - net     432,224       643,373  
                 
Other Assets                
Note receivable     176,851       176,851  
Intangibles - net     2,289,847       2,779,977  
Internal use software development costs - net     571,689       387,180  
Goodwill     1,666,782       1,666,782  
Investment in CenterCom     449,843       354,206  
Operating lease - right of use asset - net     398,926       431,352  
Total Other Assets     5,553,938       5,796,348  
                 
Total Assets   $ 43,239,325     $ 34,003,506  
                 
Liabilities and Stockholders’ Equity                
                 
Current Liabilities                
Accounts payable and accrued expenses   $ 6,833,124     $ 5,784,374  
Accounts payable and accrued expenses - related party     1,002,558       1,728,721  
Installment sale liability     5,920,346       13,018,184  
Deferred revenue     118,000       243,110  
Operating lease liability     42,208       39,490  
Notes payable - related parties     558,150       1,108,150  
Notes payable     10,554       1,542,033  
Total Current Liabilities     14,484,940       23,464,062  
                 
Long Term Liabilities                
Note payable     53,135       53,134  
Notes payable - related parties     4,026,413       4,493,798  
Notes payable - SBA government     463,870       474,846  
Operating lease liability     367,465       399,413  
Total Long Term Liabilities     4,910,883       5,421,191  
                 
Total Liabilities     19,395,823       28,885,253  
                 
Commitments and Contingencies (Note 8)     -       -  
                 
Stockholders’ Equity                
Common stock, $0.001 par value, 500,000,000 shares authorized 14,343,261 and 14,116,832 shares issued and outstanding, respectively     14,344       14,117  
Additional paid-in capital     41,889,886       40,780,707  
Accumulated deficit     (18,207,472 )     (35,804,106 )
Stockholders’ equity     23,696,758       4,990,718  
Non-controlling interest     146,744       127,535  
Total Stockholders’ Equity     23,843,502       5,118,253  
                 
Total Liabilities and Stockholders’ Equity   $ 43,239,325     $ 34,003,506  

 

The accompanying notes are an integral part of these unaudited consolidated financial statements

 

3

 

Consolidated Statements of Operations

 

    2023     2022     2023     2022  
    For the Three Months Ended September 30,     For the Nine Months Ended September 30,  
    2023     2022     2023     2022  
                         
Revenues   $ 34,160,834     $ 36,171,345     $ 104,823,710     $ 85,317,860  
                                 
Costs and expenses                                
Cost of revenue     23,680,247       34,250,541       76,622,912       78,572,421  
General and administrative expenses     3,389,015       2,933,204       10,201,663       9,655,529  
Total costs and expenses     27,069,262       37,183,745       86,824,575       88,227,950  
                                 
Income (loss) from operations     7,091,572       (1,012,400 )     17,999,135       (2,910,090 )
                                 
Other income (expense)                                
Interest expense     (130,335 )     (633,593 )     (478,928 )     (1,370,236 )
Gain (loss) on investment in CenterCom     51,894       (52,435 )     95,636       (42,099 )
Amortization of debt discount     -       (57,933 )     -       (95,001 )
Gain on forgiveness of PPP loan - government     -       -       -       524,143  
Total other income (expense) - net     (78,441 )     (743,961 )     (383,292 )     (983,193 )
                                 
Net income (loss) including non-controlling interest     7,013,131       (1,756,361 )     17,615,843       (3,893,283 )
                                 
Non-controlling interest     (71,170 )     (216,163 )     19,209       (167,714 )
                                 
Net income (loss) available to common stockholders   $ 7,084,301     $ (1,540,198 )   $ 17,596,634     $ (3,725,569 )
                                 
Earnings (loss) per share - attributable to common stockholders                                
Basic   $ 0.50     $ (0.12 )   $ 1.24     $ (0.30 )
Diluted   $ 0.49     $ (0.12 )   $ 1.19     $ (0.30 )
                                 
Weighted average number of shares outstanding - attributable to common stockholders                                
Basic     14,291,263       12,443,052       14,205,127       12,259,907  
Diluted     14,507,984       12,443,052       14,740,201       12,259,907  

 

The accompanying notes are an integral part of these unaudited consolidated financial statements

 

4

 

Consolidated Statements of Changes in Stockholders’ Equity

 

      Shares     Amount     Capital     Deficit     Interest     Equity  
    Common Stock     Additional Paid-in     Accumulated     Non-Controlling     Total Stockholders’  
    Shares     Amount     Capital     Deficit     Interest     Equity  
                                     
December 31, 2022 - - 14,116,832     $ 14,117     $ 40,780,707     $ (35,804,106 )   $ 127,535     $ 5,118,253  
                                                 
Stock issued for services     60,082       60       307,398       -                            -       307,458  
                                                 
Recognition of stock based compensation - stock options     -       -       9,294       -       -       9,294  
                                                 
Non-controlling interest     -       -       -       -       (576 )     (576 )
                                                 
Net income - - -       -       -       4,546,341       -       4,546,341  
                                                 
March 31, 2023 - - 14,176,914       14,177       41,097,399       (31,257,765 )     126,959       9,980,770  
                                                 
Stock issued for services     64,927       65       311,121       -       -       311,186  
                                                 
Recognition of stock based compensation - stock options     -       -       9,294       -       -       9,294  
                                                 
Exercise of warrants for cash     43,814       44       207,196       -       -       207,240  
                                                 
Non-controlling interest     -       -       -       -       90,955       90,955  
                                                 
Net income - - -       -       -       5,965,992       -       5,965,992  
                                                 
June 30, 2023 - - 14,285,655       14,286       41,625,010       (25,291,773 )     217,914       16,565,437  
                                                 
Stock issued for services     57,606       58       255,582       -       -       255,640  
                                                 
Recognition of stock based compensation - stock options     -       -       9,294       -       -       9,294  
                                                 
Non-controlling interest     -       -       -       -       (71,170 )     (71,170 )
                                                 
Net income - - -       -       -       7,084,301       -       7,084,301  
                                                 
September 30, 2023 - - 14,343,261     $ 14,344     $ 41,889,886     $ (18,207,472 )   $ 146,744     $ 23,843,502  

 

The accompanying notes are an integral part of these unaudited consolidated financial statements

 

5

 

    Shares     Amount     Shares     Amount     Shares     Amount     Capital     Deficit     Interest     Equity  
    Series A Preferred Stock     Series C Preferred Stock     Common Stock     Additional Paid-in     Accumulated     Non-Controlling    

Total Stockholders’

  
    Shares     Amount     Shares     Amount     Shares     Amount     Capital     Deficit     Interest     Equity  
                                                             
December 31, 2021     260,000     $ 260       -     $ -       12,063,834     $ 12,064     $ 38,662,340     $ (35,123,343 )   $ -     $ 3,551,321  
                                                                                 
Recognition of stock based compensation     -       -       -       -       -       -       9,294       -       -       9,294  
                                                                                 
Warrants issued as debt issue costs     -                  -                    -                 -       -       -       38,953       -       -       38,953  
                                                                                 
Non-controlling interest     -       -       -       -       -       -       -       -       (32,645 )     (32,645 )
                                                                                 
Net loss     -       -       -       -       -       -       -       (1,212,334 )                             -       (1,212,334 )
                                                                                 
March 31, 2022     260,000       260       -       -       12,063,834       12,064       38,710,587       (36,335,677 )     (32,645 )     2,354,589  
                                                                                 
Recognition of stock based compensation     -       -       -       -       -       -       9,294       -       -       9,294  
                                                                                 
Stock issued as direct offering costs     -       -       -       -       200,000       200       (200 )     -       -       -  
                                                                                 
Stock issued to purchase software     -       -       -       -       85,000       85       411,315       -       -       411,400  
                                                                                 
Warrants issued as debt issue costs     -       -       -       -       -       -       76,451       -       -       76,451  
                                                                                 
Warrants issued as interest expense     -       -       -       -       -       -       212,608       -       -       212,608  
                                                                                 
Non-controlling interest     -       -       -       -       -       -       -       -       81,094       81,094  
                                                                                 
Net loss     -       -       -       -       -       -       -       (973,037 )     -       (973,037 )
                                                                                 
June 30, 2022     260,000       260       -       -       12,348,834       12,349       39,420,055       (37,308,714 )     48,449       2,172,399  
                                                                                 
Recognition of stock based compensation     -       -       -       -       -       -       9,294       -       -       9,294  
                                                                                 
Warrants issued as interest expense     -       -       -       -       -       -       38,754       -       -       38,754  
                                                                                 
Exercise of warrants (cashless)     -       -       -       -       147,153       147       (147 )     -       -       -  
                                                                                 
Non-controlling interest     -       -       -       -       -       -       -       -       (216,163 )     (216,163 )
                                                                                 
Net loss     -       -       -       -       -       -       -       (1,540,198 )     -       (1,540,198 )
                                                                                 
September 30, 2022     260,000     $ 260       -     $ -       12,495,987     $ 12,496     $ 39,467,956     $ (38,848,912 )   $ (167,714 )   $ 464,086  

 

The accompanying notes are an integral part of these unaudited consolidated financial statements

 

6

 

Consolidated Statements of Cash Flows

 

    2023     2022  
    For the Nine Months Ended September 30,  
    2023     2022  
             
Operating activities                
Net income (loss) - including non-controlling interest   $ 17,615,843     $ (3,893,283 )
Adjustments to reconcile net income (loss) to net cash used in operations                
Provision for inventory obsolescence     -       51,718  
Depreciation and amortization     701,279       664,534  
Amortization of right-of-use assets     32,426       44,747  
Amortization of debt discount/debt issue costs     -       95,001  
Amortization of internal use software development costs     96,795       27,882  
Stock issued for services     874,284       -  
Recognition of share based compensation - related party     27,882       -  
Warrants issued for interest expense     -       251,362  
(Gain) loss on equity method investment - CenterCom     (95,637 )     42,098  
Gain on forgiveness of PPP loan     -       (524,143 )
Changes in operating assets and liabilities          
(Increase) decrease in                
Accounts receivable     (544,063)       (6,217,533)  
Inventory     (3,363,165 )     (5,184,807 )
Prepaids     (86,355 )     (131,853 )
Increase (decrease) in                
Accounts payable and accrued expenses     1,048,750       7,074,491  
Accounts payable and accrued expenses - related party     (726,163 )     2,168,460  
Installment sale liability - net     (7,097,838 )     -  
Deferred revenue     (125,110 )     1,620,260  
Operating lease liability     (29,230 )     (39,977 )
Net cash provided by (used in) operating activities     8,329,698       (3,951,043 )
                 
Investing activities                
Purchase of property and equipment     -       (9,611 )
Capitalized internal use software development costs     (281,304 )     -  
Purchase of software     -       (300,000 )
Acquisition of Torch, Inc.     -       (800,000 )
Net cash used in investing activities     (281,304 )     (1,109,611 )
                 
Financing activities                
Proceeds from exercise of common stock warrants     207,240       -  
Repayments of loans - related party     (1,017,385 )     -  
Proceeds from notes payable     -       6,700,000  
Repayments on notes payable     (1,531,478 )     -  
Repayments on notes payable - SBA government     (10,976 )     (30,792 )
Net cash provided (used in) by financing activities     (2,352,599 )     6,669,208  
                 
Net increase in cash     5,695,795       1,608,554  
                 
Cash - beginning of period     7,035,654       6,283,496  
                 
Cash - end of period   $ 12,731,449     $ 7,892,050  
                 
Supplemental disclosure of cash flow information                
Cash paid for interest   $ 209,840     $ 195,950  
Cash paid for income tax   $ -     $ -  
                 
Supplemental disclosure of non-cash investing and financing activities                
                 
Debt issue costs recorded in connection with notes payable   $ -     $ 115,404  
Stock issued to acquire software   $ -     $ 411,400  

 

The accompanying notes are an integral part of these unaudited consolidated financial statements

 

7

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Note 1 - Organization and Nature of Operations

 

Organization and Nature of Operations

 

SurgePays, Inc. (“SurgePays,” “SP,” “we,” “our” or “the Company”), and its operating subsidiaries, is a technology-driven company building a next generation supply chain software platform that can offer wholesale goods and services more cost efficiently than traditional and existing wholesale distribution models.

 

The parent (SurgePays, Inc.) and subsidiaries are organized as follows:

 Schedule of Subsidiaries

Company Name   Incorporation Date   State of Incorporation
SurgePays, Inc.   August 18, 2006   Nevada
KSIX Media, Inc.   November 5, 2014   Nevada
KSIX, LLC   September 14, 2011   Nevada
Surge Blockchain, LLC   January 29, 2009   Nevada
Injury Survey, LLC   July 28, 2020   Nevada
DigitizeIQ, LLC   July 23, 2014   Illinois
LogicsIQ, Inc.   October 2, 2018   Nevada
Surge Payments, LLC   December 17, 2018   Nevada
SurgePhone Wireless, LLC   August 29, 2019   Nevada
SurgePays Fintech, Inc.   August 22, 2019   Nevada
ECS Prepaid, LLC   June 9, 2009   Missouri
Central States Legal Services, Inc.   August 1, 2003   Missouri
Electronic Check Services, Inc.   May 19, 1999   Missouri
Torch Wireless * January 29, 2019   Wyoming

 

* Effective January 1, 2022, the Company acquired Torch Wireless

 

8

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Basis of Presentation

 

The accompanying unaudited consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial statements (“U.S. GAAP”) and with the instructions to Form 10-Q and Article 8 of Regulation S-X of the United States Securities and Exchange Commission (“SEC”). Accordingly, they do not contain all information and footnotes required by accounting principles generally accepted in the United States of America for annual financial statements.

 

In the opinion of the Company’s management, the accompanying unaudited consolidated financial statements contain all of the adjustments necessary (consisting only of normal recurring accruals) to present the financial position of the Company as of September 30, 2023 and the results of operations and cash flows for the periods presented. The results of operations for the nine months ended September 30, 2023 are not necessarily indicative of the operating results for the full fiscal year or any future period.

 

These unaudited consolidated financial statements should be read in conjunction with the financial statements and related notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 30, 2023.

 

Management acknowledges its responsibility for the preparation of the accompanying unaudited consolidated financial statements which reflect all adjustments, consisting of normal recurring adjustments, considered necessary in its opinion for a fair statement of its consolidated financial position and the consolidated results of its operations for the periods presented.

 

Liquidity and Management’s Plans

 

As reflected in the accompanying consolidated financial statements, for the nine months September 30, 2023, the Company had:

 

● Net income available to common stockholders of $17,596,634; and
● Net cash provided by operations was $8,329,698

 

Additionally, at September 30, 2023, the Company had:

 

● Accumulated deficit of $18,207,472
● Stockholders’ equity of $23,843,502; and
● Working capital of $22,768,223

 

9

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

We manage liquidity risk by reviewing, on an ongoing basis, our sources of liquidity and capital requirements. The Company has cash on hand of $12,731,449 at September 30, 2023.

 

The Company has historically incurred significant losses and has not, prior to 2023, demonstrated an ability to generate sufficient revenues from the sales of its products and services to achieve profitable operations. There can be no assurance that profitable operations will continue to be, or if achieved, could be sustained on a continuing basis. In making this assessment we performed a comprehensive analysis of our current circumstances including: our financial position, our cash flows and cash usage forecasts for the twelve months ended September 30, 2024, and our current capital structure including equity-based instruments and our obligations and debts.

 

The Company believes it has sufficient cash resources on hand along with access to additional debt and/or equity-based capital from third parties and related parties as needed to meet its current obligations for a period that is one year from the issuance date of these financial statements.

 

Management’s strategic plans include the following:

 

● Continue the hyper growth of the Affordable Connectivity Program revenue stream,
● Expand product and services offerings to a larger surrounding geographic area,
● Continuing to explore and execute prospective partnering or distribution opportunities; and
● Identifying unique market opportunities that represent potential positive short-term cash flow.

 

Note 2 - Summary of Significant Accounting Policies

 

Principles of Consolidation and Non-Controlling Interest

 

These consolidated financial statements have been prepared in accordance with U.S. GAAP and include the accounts of the Company and its wholly owned subsidiaries. All intercompany transactions and balances have been eliminated.

 

For entities that are consolidated, but not 100% owned, a portion of the income or loss and corresponding equity is allocated to owners other than the Company. The aggregate of the income or loss and corresponding equity that is not owned by us is included in Non-controlling Interests in the consolidated financial statements.

 

10

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Business Combinations

 

The Company accounts for business acquisitions using the acquisition method of accounting, in accordance with which assets acquired and liabilities assumed are recorded at their respective fair values at the acquisition date.

 

The fair value of the consideration paid, including contingent consideration, is assigned to the assets acquired and liabilities assumed based on their respective fair values. Goodwill represents the excess of the purchase price over the estimated fair values of the assets acquired and liabilities assumed.

 

Significant judgments are used in determining fair values of assets acquired and liabilities assumed, as well as intangibles. Fair value and useful life determinations are based on, among other factors, estimates of future expected cash flows, and appropriate discount rates used in computing present values. These judgments may materially impact the estimates used in allocating acquisition date fair values to assets acquired and liabilities assumed, as well as the Company’s current and future operating results. Actual results may vary from these estimates which may result in adjustments to goodwill and acquisition date fair values of assets and liabilities during a measurement period or upon a final determination of asset and liability fair values, whichever occurs first. Adjustments to fair values of assets and liabilities made after the end of the measurement period are recorded within the Company’s operating results.

 

Effective January 1, 2022, the Company executed a management agreement with Torch Wireless (“Torch”). Generally, the Company was engaged to handle the following services:

 

  ● Oversee management of the business being conducted by Torch,
  ● Involved in the performance of Torch’s obligations under contracts regarding its business operations and maintenance of Torch’s customer relationships,
  ● Assist Torch with regulatory compliance,
  ● Manage all billing and collection functions, including the right to collect revenues related to Torch’s business operations, as part of the agreement, Torch may not participate in this function; and
  ● Manage all payment functions related to the business, including the right to disburse funds, as part of the agreement, Torch may not participate in this function

 

Torch is a provider of subsidized mobile broadband services to consumers qualifying under the federal guidelines of the U.S. Federal Communication Commission’s Affordable Connectivity Program (“ACP”). The ACP provides the Company with up to a $100 reimbursement for the cost of each tablet device distributed and a $30 per customer, per month subsidy for mobile broadband (internet connectivity) services.

 

11

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

With the purchase of Torch, the Company offers subsidized mobile broadband in all fifty (50) states.

 

It was determined that the Company had acquired 100% of Torch, effective January 1, 2022, resulting in Torch becoming a wholly-owned subsidiary, in a transaction accounted for as a business combination. Pursuant to ASC 805-10-25-7, the Company determined that the acquisition date preceded the closing date as it was managing Torch and in full control of all operational decision making. At this time, the Company had obtained control of Torch through its management contract.

 

At the time of acquisition, Torch had no significant assets or liabilities. The Company paid $800,000. As a result of the acquisition, the Company recorded goodwill of $800,000.

 

At the time of acquisition, Torch had nominal revenues and losses. As a result, and given the immaterial nature of this acquisition, the Company elected not to present any pro-forma financial information during the year ended December 31, 2022.

 

In addition, the Company was required to pay the Sellers monthly residual payments for customers enrolled by the Company through December 31, 2022 of either $2 or $3 per customer (depending on the category of customer).

 

For the nine months ended September 30, 2023 and 2022, the Company incurred expenses of $0 and $584,038, respectively, related to the residual payments. All expenses are included as a component of cost of goods sold.

 

This transaction did not involve the purchase of a “significant amount of assets” as defined in the Instructions to Item 2.01 of Form 8-K. Additionally, the acquisition of Torch was not deemed to be significant at any level under SEC Regulation S-X 3.05 and did not require the presentation of any additional historical audited financial statements.

 

For financial reporting purposes, Torch has been consolidated into the Company’s consolidated statements of financial position, results of operations, and cash flows.

 

At September 30, 2023 and December 31, 2022 goodwill was $1,666,782.

 

There were no impairment losses for the nine months ended September 30, 2023 and 2022, respectively.

 

12

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Note Receivable (Sale of Former Subsidiary)

 

On May 7, 2021, the Company disposed of its subsidiary True Wireless, Inc.

 

In connection with the sale, the Company received an unsecured note receivable for $176,851, bearing interest at 0.6%, with a default interest rate of 10%. The Company will receive twenty-five (25) monthly payments of principal and accrued interest totaling $7,461 commencing in June 2023.

 

Payments are scheduled as follows:

 Schedule of Receivables

For the Year Ended December 31,      
       
2023 (3 months)   $ 52,227  
2024     89,532  
2025     44,766  
      186,525  
Less: amount representing interest     (9,674 )
Total   $ 176,851  

 

On July 12, 2023, Notice of Default was provided by SurgePays, Inc. to Blue Skies Connections, LLC for failure to pay amounts due under that certain Promissory Note dated June 14, 2021 by Blue Skies Connections, LLC in favor of SurgePays, Inc. in the original principal amount of $176,851 (the “Note”). Pursuant to the terms of the Note, SurgePays, Inc. accelerated the amount due. See Note 8 for Contingencies – Legal Matters for additional discussion.

 

As of September 30, 2023, the Company believes the note is collectible.

 

Business Segments and Concentrations

 

The Company uses the “management approach” to identify its reportable segments. The management approach requires companies to report segment financial information consistent with information used by management for making operating decisions and assessing performance as the basis for identifying the Company’s reportable segments. The Company manages its business as multiple reportable segments. See Note 10 regarding segment disclosure.

 

The SurgePhone and Torch Wireless business segment made up approximately 85% and 72% of total consolidated revenues for the nine months ended September 30, 2023 and 2022, respectively.

 

13

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Revenues related to this business segment are 100% derived from programs administered by the Federal Communications Commission (FCC), and all funds related to these programs are received directly from organizations under the direction of the FCC and subject to administrative rulings, statutory changes, and other funding restrictions that could impact the Company’s operations in this segment.

 

Accounts receivable related to these programs made up 98% and 96% of accounts receivable at September 30, 2023 and December 31, 2022, respectively.

 

Customers in the United States accounted for 100% of our revenues. We do not have any property or equipment outside of the United States.

 

Use of Estimates

 

Preparing financial statements in conformity with U.S. GAAP 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 the financial statements and revenues and expenses during the reported period. Actual results could differ from those estimates, and those estimates may be material.

 

Significant estimates during the nine months ended September 30, 2023 and 2022, respectively, include, allowance for doubtful accounts and other receivables, inventory reserves and classifications, valuation of loss contingencies, valuation of derivative liabilities, valuation of stock-based compensation, estimated useful lives related to intangible assets, capitalized internal-use software development costs, and property and equipment, implicit interest rate in right-of-use operating leases, uncertain tax positions, and the valuation allowance on deferred tax assets.

 

Risks and Uncertainties

 

The Company operates in an industry that is subject to intense competition and changes in consumer demand. The Company’s operations are subject to significant risk and uncertainties including financial and operational risks including the potential risk of business failure.

 

The Company has experienced, and in the future may experience, variability in sales and earnings. The factors expected to contribute to this variability include, among others, (i) the cyclical nature of the industry, (ii) general economic conditions in the various local markets in which the Company competes, including a potential general downturn in the economy, and (iii) the volatility of prices in connection with the Company’s distribution of the product. These factors, among others, make it difficult to project the Company’s operating results on a consistent basis.

 

14

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Fair Value of Financial Instruments

 

The Company accounts for financial instruments under Financial Accounting Standards Board (“FASB”) ASC 820, Fair Value Measurements. ASC 820 provides a framework for measuring fair value and requires disclosures regarding 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, based on the Company’s principal or, in absence of a principal, most advantageous market for the specific asset or liability.

 

The Company uses a three-tier fair value hierarchy to classify and disclose all assets and liabilities measured at fair value on a recurring basis, as well as assets and liabilities measured at fair value on a non-recurring basis, in periods subsequent to their initial measurement. The hierarchy requires the Company to use observable inputs when available, and to minimize the use of unobservable inputs, when determining fair value.

 

The three tiers are defined as follows:

 

  ● Level 1 – Observable inputs that reflect quoted market prices (unadjusted) for identical assets or liabilities in active markets;
  ● Level 2 – Observable inputs other than quoted prices in active markets that are observable either directly or indirectly in the marketplace for identical or similar assets and liabilities; and
  ● Level 3 – Unobservable inputs that are supported by little or no market data, which require the Company to develop its own assumptions.

 

The determination of fair value and the assessment of a measurement’s placement within the hierarchy requires judgment. Level 3 valuations often involve a higher degree of judgment and complexity. Level 3 valuations may require the use of various cost, market, or income valuation methodologies applied to unobservable management estimates and assumptions. Management’s assumptions could vary depending on the asset or liability valued and the valuation method used. Such assumptions could include estimates of prices, earnings, costs, actions of market participants, market factors, or the weighting of various valuation methods. The Company may also engage external advisors to assist us in determining fair value, as appropriate. Although the Company believes that the recorded fair value of our financial instruments is appropriate, these fair values may not be indicative of net realizable value or reflective of future fair values.

 

15

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

The Company’s financial instruments, including cash, accounts receivable, accounts payable and accrued expenses, and accounts payable and accrued expenses – related party, are carried at historical cost. At September 30, 2023 and December 31, 2022, respectively, the carrying amounts of these instruments approximated their fair values because of the short-term nature of these instruments.

 

ASC 825-10 “Financial Instruments” allows entities to voluntarily choose to measure certain financial assets and liabilities at fair value (“fair value option”). The fair value option may be elected on an instrument-by-instrument basis and is irrevocable unless a new election date occurs. If the fair value option is elected for an instrument, unrealized gains and losses for that instrument should be reported in earnings at each subsequent reporting date. The Company did not elect to apply the fair value option to any outstanding financial instruments.

 

Cash and Cash Equivalents and Concentration of Credit Risk

 

For purposes of the consolidated statements of cash flows, the Company considers all highly liquid instruments with a maturity of three months or less at the purchase date and money market accounts to be cash equivalents.

 

At September 30, 2023 and December 31, 2022, respectively, the Company did not have any cash equivalents.

 

The Company is exposed to credit risk on its cash and cash equivalents in the event of default by the financial institutions to the extent account balances exceed the amount insured by the FDIC, which is $250,000.

 

At September 30, 2023 and December 31, 2022, respectively, the Company did not experience any losses on cash balances in excess of FDIC insured limits.

 

Accounts Receivable

 

Accounts receivable are stated at the amount management expects to collect from outstanding customer balances. Credit is extended to customers based on an evaluation of their financial condition and other factors. Interest is not accrued on overdue accounts receivable. The Company does not require collateral.

 

Management periodically assesses the Company’s accounts receivable and, if necessary, establishes an allowance for estimated uncollectible amounts. The Company provides an allowance for doubtful accounts based upon a review of the outstanding accounts receivable, historical collection information and existing economic conditions. Accounts determined to be uncollectible are charged to operations when that determination is made.

 

16

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Allowance for doubtful accounts was $17,525 at September 30, 2023 and December 31, 2022, respectively.

 

There was no bad debt expense for the three and nine months ended September 30, 2023 and 2022, respectively.

 

Bad debt expense (recovery) is recorded as a component of general and administrative expenses in the accompanying consolidated statements of operations.

 

Inventory

 

Inventory primarily consists of tablets, cell phones and sim cards. Inventories are stated at the lower of cost or net realizable value using the average cost valuation method.

 

There was a provision for inventory obsolescence of $0 and $51,718 for the nine months ended September 30, 2023 and 2022, respectively.

 

At September 30, 2023 and December 31, 2022, the Company had inventory of $14,549,407 and $11,186,242, respectively.

 

Impairment of Long-lived Assets including Internal Use Capitalized Software Costs

 

Management evaluates the recoverability of the Company’s identifiable intangible assets and other long-lived assets when events or circumstances indicate a potential impairment exists, in accordance with the provisions of ASC 360-10-35-15 “Impairment or Disposal of Long-Lived Assets.” Events and circumstances considered by the Company in determining whether the carrying value of identifiable intangible assets and other long-lived assets may not be recoverable include but are not limited to significant changes in performance relative to expected operating results; significant changes in the use of the assets; significant negative industry or economic trends; and changes in the Company’s business strategy. In determining if impairment exists, the Company estimates the undiscounted cash flows to be generated from the use and ultimate disposition of these assets.

 

If impairment is indicated based on a comparison of the assets’ carrying values and the undiscounted cash flows, the impairment to be recognized is measured as the amount by which the carrying amount of the assets exceeds the fair value of the assets.

 

There were no impairment losses for the nine months ended September 30, 2023 and 2022, respectively.

 

17

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Property and Equipment

 

Property and equipment is stated at cost less accumulated depreciation. Depreciation is provided on the straight-line basis over the estimated useful lives of the assets.

 

Expenditures for repair and maintenance which do not materially extend the useful lives of property and equipment are charged to operations. When property or equipment is sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the respective accounts with the resulting gain or loss reflected in operations.

 

Management reviews the carrying value of its property and equipment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable.

 

There were no impairment losses for the three and nine months ended September 30, 2023 and 2022, respectively.

 

Internal Use Software Development Costs

 

We capitalize certain internal use software development costs associated with creating and enhancing internally developed software related to our technology infrastructure. These costs include personnel and related employee benefits expenses for employees who are directly associated with and who devote time to software projects, and external direct costs of materials and services consumed in developing or obtaining the software. Software development costs that do not meet the qualification for capitalization, as further discussed below, are expensed as incurred and recorded in general and administrative expenses in the consolidated results of operations.

 

Software development activities generally consist of three stages:

 

(i) planning stage,
(ii) application and infrastructure development stage, and
(iii) post implementation stage.

 

Costs incurred in the planning and post implementation stages of software development, including costs associated with the post-configuration training and repairs and maintenance of the developed technologies, are expensed as incurred.

 

18

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

We capitalize costs associated with software developed for internal use when the planning stage is completed, management has authorized further funding for the completion of the project, and it is probable that the project will be completed and perform as intended. Costs incurred in the application and infrastructure development stages, including significant enhancements and upgrades, are capitalized. Capitalization ends once a project is substantially complete, and the software and technologies are ready for their intended purpose. There is judgment involved in estimating the stage of development as well as estimating time allocated to a particular project. A significant change in the time spent on each project could have a material impact on the amount capitalized and related amortization expense in subsequent periods.

 

We amortize internal use software development costs using a straight-line method over a three-year estimated useful life, commencing when the software is ready for its intended use. The straight-line recognition method approximates the manner in which the expected benefit will be derived. We determined the life of internal use software based on historical software upgrades and replacement.

 

On an ongoing basis, we assess if the estimated remaining useful lives of capitalized projects continue to be reasonable based on the remaining expected benefit and usage. If the remaining useful life of a capitalized project is revised, it is accounted for as a change in estimate and the remaining unamortized cost of the underlying asset is amortized prospectively over the updated remaining useful life.

 

We also evaluate internal use software for abandonment and use that as a significant indicator for impairment on a quarterly basis.

 

Right of Use Assets and Lease Obligations

 

The Right of Use Asset and Lease Liability reflect the present value of the Company’s estimated future minimum lease payments over the lease term, which may include options that are reasonably assured of being exercised, discounted using a collateralized incremental borrowing rate.

 

19

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Typically, renewal options are considered reasonably assured of being exercised if the associated asset lives of the building or leasehold improvements exceed that of the initial lease term, and the performance of the business remains strong. Therefore, the Right of Use Asset and Lease Liability may include an assumption on renewal options that have not yet been exercised by the Company. The Company’s operating leases contained renewal options that expire at various dates with no residual value guarantees. Future obligations relating to the exercise of renewal options is included in the measurement if, based on the judgment of management, the renewal option is reasonably certain to be exercised. Factors in determining whether an option is reasonably certain of exercise include, but are not limited to, the value of leasehold improvements, the value of the renewal rate compared to market rates, and the presence of factors that would cause a significant economic penalty to the Company if the option is not exercised. Management reasonably plans to exercise all options, and as such, all renewal options are included in the measurement of the right-of-use assets and operating lease liabilities.

 

As the rate implicit in leases are not readily determinable, the Company uses an incremental borrowing rate to calculate the lease liability that represents an estimate of the interest rate the Company would incur to borrow on a collateralized basis over the term of a lease within a particular currency environment.

 

See Note 8 regarding operating leases.

 

Revenue Recognition

 

The Company recognizes revenue in accordance with ASC 606 to align revenue recognition more closely with the delivery of the Company’s services and will provide financial statement readers with enhanced disclosures. In accordance with ASC 606, revenue is recognized when a customer obtains control of promised services. The amount of revenue recognized reflects the consideration to which the Company expects to be entitled to receive in exchange for these services. To achieve this core principle, the Company applies the following five steps:

 

Identify the contract with a customer

 

A contract with a customer exists when (i) the Company enters into an enforceable contract with a customer that defines each party’s rights regarding the services to be transferred and identifies the payment terms related to these services, (ii) the contract has commercial substance and, (iii) the Company determines that collection of substantially all consideration for services that are transferred is probable based on the customer’s intent and ability to pay the promised consideration. The Company applies judgment in determining the customer’s ability and intention to pay, which is based on a variety of factors including the customer’s historical payment experience or, in the case of a new customer, published credit and financial information pertaining to the customer.

 

20

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Identify the performance obligations in the contract

 

Performance obligations promised in a contract are identified based on the services that will be transferred to the customer that are both capable of being distinct, whereby the customer can benefit from the service either on its own or together with other resources that are readily available from third parties or from the Company, and are distinct in the context of the contract, whereby the transfer of the services is separately identifiable from other promises in the contract. To the extent a contract includes multiple promised services, the Company must apply judgment to determine whether promised services are capable of being distinct and distinct in the context of the contract. If these criteria are not met the promised services are accounted for as a combined performance obligation.

 

Determine the transaction price

 

The transaction price is determined based on the consideration to which the Company will be entitled in exchange for transferring services to the customer. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price utilizing either the expected value method or the most likely amount method depending on the nature of the variable consideration. Variable consideration is included in the transaction price if, in the Company’s judgment, it is probable that a significant future reversal of cumulative revenue under the contract will not occur. None of the Company’s contracts contain a significant financing component.

 

Allocate the transaction price to performance obligations in the contract

 

If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. However, if a series of distinct services that are substantially the same qualifies as a single performance obligation in a contract with variable consideration, the Company must determine if the variable consideration is attributable to the entire contract or to a specific part of the contract. For example, a bonus or penalty may be associated with one or more, but not all, distinct services promised in a series of distinct services that forms part of a single performance obligation. Contracts that contain multiple performance obligations require an allocation of the transaction price to each performance obligation based on a relative standalone selling price basis unless the transaction price is variable and meets the criteria to be allocated entirely to a performance obligation or to a distinct service that forms part of a single performance obligation. The Company determines standalone selling price based on the price at which the performance obligation is sold separately. If the standalone selling price is not observable through past transactions, the Company estimates the standalone selling price taking into account available information such as market conditions and internally approved pricing guidelines related to the performance obligations.

 

21

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Recognize revenue when or as the Company satisfies a performance obligation

 

The Company satisfies performance obligations either over time or at a point in time. Revenue is recognized at the time the related performance obligation is satisfied by transferring a promised service to a customer.

 

The following reflects additional discussion regarding our revenue recognition policies for each of our material revenue streams. For each revenue stream we do not offer any returns, refunds or warranties, and no arrangements are cancellable. Additionally, all contract consideration is fixed and determinable at the initiation of the contract. Performance obligations for Torch and LogicsIQ are satisfied when services are performed. Performance obligations for ECS and SB are satisfied at point of sale.

 

For each of our revenue streams we only have a single performance obligation.

 

Surge Phone Wireless (SPW) and Torch Wireless

 

SPW and Torch Wireless are licensed to provide subsidized mobile broadband services through the ACP to qualifying low-income customers to all fifty (50) states. Revenues are recognized when an ACP application is completed and accepted. Each month we reconcile subscriber usage to ensure the service was utilized. A monthly file is submitted to the Universal Service Administrative Company for review and approval, at which time we have completed our performance obligation and recognize accounts receivable and revenue. Revenues are recorded in the month when services were rendered, with payment typically received on the 28th of the following month.

 

Surge Blockchain

 

Revenues are generated through the sale of various products such as energy drinks, CBD products, and other top selling products in convenience store and bodega nationwide. At the time in which our products are sold at the store our performance obligation is considered complete. At point of sale, our web portal platform initiates an automated clearing house transaction (ACH) resulting in the recording revenue.

 

22

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

LogicsIQ

 

LogicsIQ, Inc. is a lead generation and case management solutions company primarily serving law firms in the mass tort industry. Revenues are earned from our lead generation retained services offerings and call center activities through CenterCom.

 

Lead generation consist of sourcing leads, which requires us to drive traffic to our landing pages for a specific marketing campaign. We also achieve this in certain marketing campaigns by using third-party preferred vendors to meet the needs of our clients. Revenues are recognized at the time the lead is delivered to the client. If payment is received in advance of the delivery of services, it is included in deferred revenue, and subsequently recognized once the performance obligation has been completed.

 

Retained service offerings consist of turning leads into a retained legal case. To provide this service to our customers, we qualify leads through verification of information collected during the lead generation process. Additionally, we further qualify these leads using a client questionnaire which assists in determining the services to be provided. The qualification process is completed using our call center operations.

 

Effective February 1, 2023, LogicsIQ started offering call center services to existing clients. These services are similar in nature to the services CenterCom offers LogicsIQ. The total revenue from these services for the three and nine months ended September 30, 2023 was $340,989 and $1,212,019, respectively.

 

If payment is received in advance of the delivery of services, it is included in deferred revenue, and subsequently recognized once the performance obligation has been completed. At the time of delivery of leads and the creation of retained cases (customers are qualified at this point), our performance obligation has been completed and revenues are recognized. Arrangements with customers do not provide the customer with the right to take possession of our software or platform at any time. Once the advertising is delivered, it is non-refundable.

 

Surge Fintech and ECS

 

Revenues are generated through the sale of telecommunication products such as mobile phones, wireless top-up refills, and other mobile related products. At the time in which our products are sold through our online web portal (point of sale), our performance obligation is considered complete. At point of sale, our web portal platform initiates an automated clearing house transaction (ACH) resulting in the recording revenue.

 

23

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Contract Liabilities (Deferred Revenue)

 

Contract liabilities represent deposits made by customers before the satisfaction of performance obligation and recognition of revenue. Upon completion of the performance obligation(s) that the Company has with the customer based on the terms of the contract, the liability for the customer deposit is relieved and revenue is recognized.

 

At September 30, 2023 and December 31, 2022, the Company had deferred revenue of $118,000 and $243,110, respectively.

 

The following represents the Company’s disaggregation of revenues for the nine months ended September 30, 2023 and 2022:

 Schedule of Disaggregation of Revenue from Contracts With Customers

    For the Nine Months Ended September 30,  
    2023     2022  
                         
Revenue   Revenue     % of Revenues     Revenue     % of Revenues  
                         
Surge Phone and Torch Wireless   $ 89,536,546       85.42 %   $ 61,462,327       72.04 %
Surge Blockchain, LLC     30,533       0.03 %     102,378       0.12 %
LogicsIQ, Inc.     6,647,061       6.34 %     10,689,006       12.53 %
Surge Fintech & ECS     8,609,570       8.21 %     13,064,149       15.31 %
Total Revenues   $ 104,823,710       100 %   $ 85,317,860       100 %

 

Cost of Revenues

 

Cost of revenues consists of purchased telecom services including data usage and access to wireless networks. Additionally, prepaid phone cards, commissions, and advertising costs.

 

Income Taxes

 

The Company accounts for income tax using the asset and liability method prescribed by ASC 740, “Income Taxes”. Under this method, deferred tax assets and liabilities are determined based on the difference between the financial reporting and tax bases of assets and liabilities using enacted tax rates that will be in effect in the year in which the differences are expected to reverse. The Company records a valuation allowance to offset deferred tax assets if based on the weight of available evidence, it is more-likely-than-not that some portion, or all, of the deferred tax assets will not be realized. The effect on deferred taxes of a change in tax rates is recognized as income or loss in the period that includes the enactment date.

 

24

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

The Company follows the accounting guidance for uncertainty in income taxes using the provisions of ASC 740 “Income Taxes”. Using that guidance, tax positions initially need to be recognized in the financial statements when it is more likely than not the position will be sustained upon examination by the tax authorities. As of September 30, 2023 and December 31, 2022, respectively, the Company had no uncertain tax positions that qualify for either recognition or disclosure in the financial statements.

 

The Company recognizes interest and penalties related to uncertain income tax positions in other expense. No interest and penalties related to uncertain income tax positions were recorded for the nine months ended September 30, 2023 and 2022, respectively.

 

For the three and nine months ended September 30, 2023, the Company generated net income. The Company currently has an unapplied net operating loss carryforward (deferred tax asset), which is currently being evaluated for applicability in offsetting the current taxable net income. The Company believes the current net operating loss carryforward is in excess of any amounts of income tax that may be due. At September 30, 2023, the Company has an estimated income tax liability of $0.

 

Investment – Former Related Party

 

On January 17, 2019, we announced the completion of an agreement to acquire a 40% equity ownership of CenterCom Global, S.A. de C.V. (“CenterCom”). CenterCom is a dynamic operations center currently providing sales support, customer service, IT infrastructure design, graphic media, database programming, software development, revenue assurance, lead generation, and other various operational support services. Our CenterCom team is based in El Salvador. CenterCom also provides call center support for various third-party clients.

 

Anthony N. Nuzzo, a former director and officer and the holder of approximately 10% of our voting equity, had a controlling interest in CenterCom Global. During 2022, Mr. Nuzzo passed away. See Form 8-K filed on March 24, 2022.

 

The strategic partnership with CenterCom as a bilingual operations hub has powered our growth and revenue. CenterCom has been built to support the infrastructure required to rapidly scale in synergy and efficiency to support our sales growth, customer service and development.

 

We account for this investment under the equity method. Investments accounted for under the equity method are recorded based upon the amount of our investment and adjusted each period for our share of the investee’s income or loss. All investments are reviewed for changes in circumstance or the occurrence of events that suggest an other than temporary event where our investment may not be recoverable. The financial information used to account for the investment is unaudited.

 

25

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

At September 30, 2023 and December 31, 2022, our investment in CenterCom was $449,843 and $354,206, respectively.

 

During the three months ended September 30, 2023 and 2022, we recognized a gain of $51,894 and a loss of $52,435, respectively.

 

During the nine months ended September 30, 2023 and 2022, we recognized a gain of $95,636 and a loss of $42,099, respectively.

 

Advertising Costs

 

Advertising costs are expensed as incurred. Advertising costs are included as a component of general and administrative expense in the consolidated statements of operations.

 

The Company recognized $89,069 and $34,708 in marketing and advertising costs during the three months ended September 30, 2023 and 2022, respectively.

 

The Company recognized $137,933 and $170,714 in marketing and advertising costs during the nine months ended September 30, 2023 and 2022, respectively.

 

Stock-Based Compensation

 

The Company accounts for our stock-based compensation under ASC 718 “Compensation – Stock Compensation” using the fair value-based method. Under this method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. This guidance establishes standards for the accounting for transactions in which an entity exchanges its equity instruments for goods or services. It also addresses transactions in which an entity incurs liabilities in exchange for goods or services that are based on the fair value of the entity’s equity instruments or that may be settled by the issuance of those equity instruments.

 

The Company uses the fair value method for equity instruments granted to non-employees and uses the Black-Scholes model for measuring the fair value of options.

 

The fair value of stock-based compensation is determined as of the date of the grant or the date at which the performance of the services is completed (measurement date) and is recognized over the vesting periods.

 

26

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

When determining fair value of stock-based compensation, the Company considers the following assumptions in the Black-Scholes model:

 

● Exercise price,
● Expected dividends,
● Expected volatility,
● Risk-free interest rate; and
● Expected life of option

 

Stock Warrants

 

In connection with certain financing (debt or equity), consulting and collaboration arrangements, the Company may issue warrants to purchase shares of its common stock. The outstanding warrants are standalone instruments that are not puttable or mandatorily redeemable by the holder and are classified as equity awards. The Company measures the fair value of warrants issued for compensation using the Black-Scholes option pricing model as of the measurement date. However, for warrants issued that meet the definition of a derivative liability, fair value is determined based upon the use of a binomial pricing model.

 

Warrants issued in conjunction with the issuance of common stock are initially recorded at fair value as a reduction in additional paid-in capital of the common stock issued. All other warrants (for services) are recorded at fair value and expensed over the requisite service period or at the date of issuance if there is not a service period.

 

Basic and Diluted Earnings (Loss) per Share

 

Pursuant to ASC 260-10-45, basic earnings (loss) per common share is computed by dividing net income (loss) by the weighted average number of shares of common stock outstanding for the periods presented.

 

Diluted earnings per share is computed by dividing net income by the weighted average number of shares of common stock, common stock equivalents and potentially dilutive securities outstanding during the period.

 

Potentially dilutive common shares may consist of contingently issuable shares, common stock issuable upon the conversion of stock options and warrants (using the treasury stock method), and convertible notes. These common stock equivalents may be dilutive in the future.

 

27

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

In the event of a net loss, diluted loss per share is the same as basic loss per share since the effect of the potential common stock equivalents upon conversion would be anti-dilutive.

 

The following potentially dilutive equity securities outstanding as of September 30, 2023 and 2022 were as follows:

 Schedule of Diluted Net Income(Loss) Per Share

    September 30, 2023     September 30, 2022  
Warrants     5,616,892       5,648,563  
Stock options     11,902       6,801  
Series A, convertible preferred stock     -       26,000  
Total common stock equivalents     5,628,794       5,681,364  

 

Warrants and stock options included as commons stock equivalents represent those that are fully vested and exercisable. See Note 9.

 

Based on the potential common stock equivalents noted above at September 30, 2023, the Company has sufficient authorized shares of common stock (500,000,000) to settle any potential exercises of common stock equivalents.

 

The following table shows the computation of basic and diluted earnings per share for the three and nine months ended September 30, 2023. The Company had a net loss in 2022, as a result, basic and diluted earnings per share for the three and nine months ended September 30, 2022 were the same.

 Schedule of Earnings per Share Basic and Diluted

    3 Months Ended     9 Months Ended  
    September 30, 2023     September 30, 2023  
             
Numerator                
Net income   $ 7,084,301     $ 17,596,634  
                 
Denominator                
Weighted average shares outstanding - basic     14,291,263       14,205,127  
Effect of dilutive securities (warrants)     216,721       535,074  
Weighted average shares outstanding - diluted     14,507,984       14,740,201  
                 
Earnings per share - basic   $ 0.50     $ 1.24  
Earnings per share - diluted   $ 0.49     $ 1.19  

 

28

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Related Parties

 

Parties are considered to be related to the Company if the parties, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with the Company. Related parties also include principal owners of the Company, its management, members of the immediate families of principal owners of the Company and its management and other parties with which the Company may deal with if one party controls or can significantly influence the management or operating policies of the other to an extent that one of the transacting parties might be prevented from fully pursuing its own separate interests.

 

During the nine months ended September 30, 2023 and 2022, the Company incurred expenses with related parties in the normal course of business totaling $124,767 and $124,767, respectively, with Carddawg Investments, Inc. an affiliate of our Chief Executive Officer (Kevin Brian Cox).

 

From time to time, the Company may use credit cards to pay corporate expenses, these credit cards are in the names of certain of the Company’s officers and directors. These amounts are insignificant.

 

Recent Accounting Standards

 

Changes to accounting principles are established by the FASB in the form of Accounting Standards Updates (“ASU’s”) to the FASB’s Codification. We consider the applicability and impact of all ASU’s on our consolidated financial position, results of operations, stockholders’ equity, cash flows, or presentation thereof. Management has evaluated all recent accounting pronouncements issued through the date these financial statements were available to be issued and found no recent accounting pronouncements issued, but not yet effective accounting pronouncements, when adopted, will have a material impact on the consolidated financial statements of the Company.

 

29

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

In March 2022, the Financial Accounting Standards Board (the “FASB”) issued ASU 2022-02, Financial Instruments – Credit Losses (Topic 326): Troubled Debt Restructurings and Vintage Disclosures (“ASU 2022-02”), which eliminates the accounting guidance on troubled debt restructurings (“TDRs”) for creditors in ASC 310, Receivables (Topic 310), and requires entities to provide disclosures about current period gross write-offs by year of origination. Also, ASU 2022-02 updates the requirements related to accounting for credit losses under ASC 326, Financial Instruments – Credit Losses (Topic 326), and adds enhanced disclosures for creditors with respect to loan refinancings and restructurings for borrowers experiencing financial difficulty. ASU 2022-02 was effective for the Company January 1, 2023. The adoption of ASU 2022-02 did not have a material impact on the Company’s consolidated financial statements.

 

This guidance was adopted on January 1, 2023. The adoption of ASU 2022-02 did not have a material impact on the Company’s consolidated financial statements.

 

Reclassifications

 

Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no material effect on the consolidated results of operations, stockholders’ equity, or cash flows.

 

Note 3 – Property and Equipment

 

Property and equipment consisted of the following:

 Schedule of Property and Equipment

                Estimated Useful
Type   September 30, 2023     December 31, 2022     Lives (Years)
                 
Computer equipment and software   $ 1,006,286     $ 1,006,286     3 - 5
Furniture and fixtures     82,752       82,752     5 - 7
      1,089,038       1,089,038      
Less: accumulated depreciation/amortization     656,814       445,665      
Property and equipment - net   $ 432,224     $ 643,373      

 

In June 2022, the Company acquired software having a fair value of $711,400. Payment for the software consisted of $300,000 as well as the issuance of 85,000 shares of common stock having a fair value of $411,400 ($4.84/share), based upon the quoted closing trading price.

 

30

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Depreciation and amortization expense for the three months ended September 30, 2023 and 2022 was $211,149 and $140,318, respectively.

 

Depreciation and amortization expense for the nine months ended September 30, 2023 and 2022 was $701,279 and $664,534, respectively.

 

These amounts are included as a component of general and administrative expenses in the accompanying consolidated statements of operations.

 

Note 4 – Intangibles

 

Intangibles consisted of the following:

Schedule of Intangible Assets 

                Estimated Useful
Type   September 30, 2023     December 31, 2022     Lives (Years)
                 
Proprietary Software   $ 4,286,402     $ 4,286,402     7
Tradenames/trademarks     617,474       617,474     15
ECS membership agreement     465,000       465,000     1
Noncompetition agreement     201,389       201,389     2
Customer Relationships     183,255       183,255     5
      5,753,520       5,753,520      
Less: accumulated amortization     (3,463,673 )     (2,973,543 )    
Intangibles - net   $ 2,289,847     $ 2,779,977      

 

Amortization expense for the three months ended September 30, 2023 and 2022 was $163,377 and $163,377, respectively.

 

Amortization expense for the nine months ended September 30, 2023 and 2022 was $490,130 and $490,130, respectively.

 

31

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Estimated amortization expense for each of the five (5) succeeding years is as follows:

 Schedule of Estimated Amortization Expenses

For the Year Ended December 31:      
       
2023 (3 Months)     163,376  
2024     653,507  
2025     653,507  
2026     653,507  
2027     165,950  
Total   $ 2,289,847  

 

Note 5 – Internal Use Software Development Costs

 

Internal Use Software Development Costs consisted of the following:

 Schedule of Intangible Assets

                Estimated Useful
Type   September 30, 2023     December 31, 2022     Life (Years)
                 
Internal Use Software Development Costs   $ 668,484     $ 387,180     3
Less: accumulated amortization     96,795       -      
Internal Use Software Development Costs - net   $ 571,689     $ 387,180      

 

Costs incurred for Internal Use Software Development Costs

 

Additional costs of $281,304 were incurred in 2023, which will be amortized over their estimated useful life of three (3) years once the application and infrastructure development stage is completed.

 

Amortization of Software Development Costs

 

Management determined that all costs incurred in 2022 related to internal use software development costs related to the application and infrastructure development stage which were completed at December 31, 2022. Amortization of these costs began in 2023.

 

Management has determined that all costs incurred in 2023 related to internal use software development costs related to the application and infrastructure development stage will be completed as of December 31, 2023. Amortization of these costs will begin in 2024.

 

32

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

For the three months ended September 30, 2023 and 2022, amortization of internal use software development costs was $32,265 and $0, respectively.

 

For the nine months ended September 30, 2023 and 2022, amortization of internal use software development costs was $96,795 and $0, respectively.

 

Estimated amortization expense is as follows for the years ended December 31:

 Schedule of Estimated Amortization Expenses

         
2023 (3 Months)     32,265  
2024     222,828  
2025     222,828  
2026     93,768  
Total   $ 571,689  

 

Note 6 – Debt

 

The following represents a summary of the Company’s notes payable – SBA government, notes payable – related parties, and notes payable, key terms, and outstanding balances at September 30, 2023 and December 31, 2022, respectively:

 

Notes Payable – SBA government

 

(1) Paycheck Protection Program - PPP Loan

 

Pertaining to the Company’s eighteen (18) month loan and in accordance with the Paycheck Protection Program (“PPP”) and Conditional Loan Forgiveness, the promissory note evidencing the loan contains customary events of default relating to, among other things, payment defaults, breach of representations and warranties, or provisions of the promissory note. The occurrence of an event of default may result in the repayment of all amounts outstanding, collection of all amounts owing from the Company, and/or filing suit and obtaining judgment against the Company.

 

Under the terms of the PPP loan program, all or a portion of this Loan may be forgiven upon request from Borrower to Lender, provided the Loan proceeds are used in accordance with the terms of the Coronavirus Aid, Relief and Economic Security Act (the “Act” or “CARES”), Borrower is not in default under the Loan or any of the Loan Documents, and Borrower has provided documentation to Lender supporting such request for forgiveness that includes verifiable information on Borrower’s use of the Loan proceeds, to Lender’s satisfaction, in its sole and absolute discretion.

 

33

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

(2) Economic Injury Disaster Loan (“EIDL”)

 

This program was made available to eligible borrowers in light of the impact of the COVID-19 pandemic and the negative economic impact on the Company’s business. Proceeds from the EIDL are to be used for working capital purposes.

 

Installment payments, including principal and interest, are due monthly (beginning twelve (12) months from the date of the promissory note) in amounts ranging from $109 - $751/month. The balance of principal and interest is payable over the next thirty (30) years from the date of the promissory note. There are no penalties for prepayment. The EIDL Loan is not required to be refinanced by the PPP loan.

 

Schedule of Notes Payable 

    PPP     EIDL     EIDL     PPP        
Terms   SBA     SBA     SBA     SBA     Total  
                               
Issuance dates of SBA loans     April 2020       May 2020       July 2020       March 2021          
Term     18 months       30 Years       30 Years       5 Years          
Maturity date     October 2021       May 2050       July 2050       March 2026          
Interest rate     1 %     3.75 %     3.75 %     1 %        
Collateral     Unsecured       Unsecured       Unsecured       Unsecured          
Conversion price     N/A       N/A       N/A       N/A          
                                         
Balance - December 31, 2021   $ 126,418     $ 150,000     $ 336,600     $ 518,167     $ 1,131,185  
Forgiveness of loan     -       -       -       (518,167 )     (518,167 )   1
Repayments     -       (4,078 )     (7,676 )     -       (11,754 )
Reclassification to note payable     (126,418 )     -       -       -       (126,418 )   2
Balance - December 31, 2022     -       145,922       328,924       -       474,846  
Repayments     -       (3,072 )     (7,904 )     -       (10,976 )
Balance - September 30, 2023   $ -     $ 142,850     $ 321,020     $ -     $ 463,870  

 

1– During 2022, the Company received a forgiveness on a PPP loan totaling $524,143, of which $518,167 was for principal and $5,976 for accrued interest. The Company recorded this forgiveness as other income in the accompanying consolidated statements of operations.

 

2– During 2021, the Company received a partial forgiveness on a PPP loan totaling $377,743, of which $371,664 was for principal and $6,079 for accrued interest. The Company recorded this forgiveness as other income in the accompanying consolidated statements of operations. In March 2022, the Company refinanced the balance with a third-party bank and the maturity date was extended to March 2025. Monthly payments are $3,566/month. See additional disclosure below as part of notes the payable summary in Note 6.

 

34

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Notes Payable – Related Parties

Schedule of Notes Payable 

    1     2        
    Note Payable     Note Payable        
Terms   Related Party     Related Party     Total  
                   
Issuance dates of notes     Various       August 2021          
Maturity date     December 31, 2023 and December 31, 2024       August 2031          
Interest rate     10 %     10 %        
Collateral     Unsecured       Unsecured          
Conversion price     N/A       N/A          
                         
Balance - December 31, 2021   $ 5,593,431     $ 467,385       6,060,816  
Conversion of debt into common stock     (1,086,413 )     -       (1,086,413 )
Reclass of accrued interest to note payable     627,545       -       627,545  
Balance - December 31, 2022     5,134,563       467,385       5,601,948  
Less: short term     1,108,150       -       1,108,150  
Long term   $ 4,026,413     $ 467,385     $ 4,493,798  
                         
Balance - December 31, 2022   $ 5,134,563     $ 467,385     $ 5,601,948  
Repayments     (550,000 )     (467,385 )     (1,017,385 )
Balance - September 30, 2023     4,584,563       -       4,584,563  
Less: short term     558,150       -       558,150  
Long term   $ 4,026,413     $ -     $ 4,026,413  

 

1 Activity is with the Company’s Chief Executive Officer and Board Member (Kevin Brian Cox). Of the total, $558,150 is due December 31, 2023 and $4,026,413 is due December 31, 2024.

 

In 2022, the Company included $627,545 of accrued interest into the note balance. In 2022, the Company issued 270,745 shares of common stock at $4.01/share to settle $1,086,413 of debt principal. As a result of the debt conversion with a related party, accordingly gains/losses are not recognized, however, the Company increased stockholders’ equity for $1,086,413.

 

2 Activity is with David May, who is a Board Member. The note of $467,385 and related accrued interest of $63,641 (aggregate $531,026) was repaid in 2023.

 

35

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Notes Payable

Schedule of Notes Payable 

    1     2     3     4        
Terms  

Notes

Payable

    

Notes

Payable

    

Notes

Payable

    

Note

Payable

     Total  
                               
Issuance dates of notes     April/May 2022       April/June 2022       March 2022       2022          
Maturity date     October/November 2022       January/February 2023       March 2023       2025          
Interest rate     19 %     24 %     19 %     1 %        
Default interest rate     26 %     N/A       26 %     0 %        
Collateral     Unsecured       All assets       Unsecured       Unsecured          
Warrants issued as debt discount/issue costs     36,000       N/A       15,000       N/A          
                                         
Balance - December 31, 2021   $ -     $ -     $ -     $ -     $ -  
Gross proceeds     1,200,000       5,000,000       500,000       -       6,700,000  
Reclassification from SBA - PPP note payable     -       -       -       126,418       126,418  
Repayments     (100,000 )     (5,000,000 )     (100,000 )     (31,251 )     (5,231,251 )
Debt issue costs     (76,451 )     -       (38,953 )     -       (115,404 )
Amortization of debt issue costs     76,451       -       38,953       -       115,404  
Balance - December 31, 2022     1,100,000       -       400,000       95,167       1,595,167  
Repayments     (1,100,000 )     -       (400,000 )     (31,478 )     (1,531,478 )
Balance - September 30, 2023   $ -     $ -     $ -     $ 63,689     $ 63,689  

 

1- These notes were issued with 36,000, three (3) year warrants, which have been reflected as debt issue costs and are amortized over the life of the debt.
   
2- The Company executed a $5,000,000, secured, revolving promissory note with a third party. The Company may draw down on the note at 80% of eligible accounts receivable. The note was repaid in full in November 2022. See below secured revolving date.
   
3- These notes were issued with 15,000, three (3) year warrants, which have been reflected as debt issue costs and were amortized over the life of the debt. Additionally, in September 2022, the Company issued 12,000, three (3) year warrants, which have been treated as interest expense in connection with extending the maturity date for notes totaling $400,000 to March 2023. In October 2022, the Company repaid $100,000. The balance of $400,000 in these notes were repaid in full in 2023.
   
4- This loan, originally a PPP loan, was refinanced in 2022 and was extended from October 2021 to March 2025. Monthly payments are $3,566 per month.

 

36

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Secured Revolving Debt

 

In April 2022, a maximum of $3,000,000 was made available to the Company, issued pursuant to a series of 270-day (9 months) revolving notes for purposes of purchasing inventory. In June 2022, this amount was increased to $5,000,000.

 

The notes accrued interest at a monthly rate of 2% (24% annualized). The Company took drawdowns based upon eligible accounts receivable. In the event that eligible accounts receivable were less than 80% of the loan amount, within four (4) business days, the Company would have been required to make a payment to the lender so that the loan amount was no greater than 80% of the then current eligible accounts receivable.

 

The maximum amount outstanding under the loan was the lesser of $5,000,000 or 80% of eligible accounts receivable. Additionally, any related accrued interest associated with this mandatory payment was also due. These advances were secured by all assets of the Company.

 

In 2022, the Company repaid the $5,000,000 plus accrued interest of $46,027 and the line was terminated.

 

Debt Maturities

 

The following represents the maturities of the Company’s various debt arrangements for each of the five (5) succeeding years and thereafter as follows:

 

Schedule of Debt Maturities 

For the Year Ended

December 31,

   Notes Payable - Related Parties     Notes Payable - SBA Government     Note Payable     Total  
                         
2023 (3 Months)   $ 558,150     $ -     $ 10,554     $ 568,704  
2024     4,026,413       -       42,455       4,068,868  
2025     -       -       10,680       10,680  
2026     -       -       -       -  
2027     -       -       -       -  
Thereafter     -       463,870       -       463,870  
Total   $ 4,584,563     $ 463,870     $ 63,689     $ 5,112,122  

 

37

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Note 7 – Fair Value of Financial Instruments

 

The Company evaluates its financial assets and liabilities subject to fair value measurements on a recurring basis to determine the appropriate level in which to classify them for each reporting period. This determination requires significant judgments to be made.

 

The Company did not have any assets or liabilities measured at fair value on a recurring basis at September 30, 2023 and December 31, 2022, respectively.

 

Note 8 – Commitments and Contingencies

 

Operating Leases

 

We have entered into various operating lease agreements, including our corporate headquarters. We account for leases in accordance with ASC Topic 842: Leases, which requires a lessee to utilize the right-of-use model and to record a right-of-use asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases are classified as either financing or operating, with classification affecting the pattern of expense recognition in the statement of operations. In addition, a lessor is required to classify leases as either sales-type, financing or operating. A lease will be treated as a sale if it transfers all of the risks and rewards, as well as control of the underlying asset, to the lessee. If risks and rewards are conveyed without the transfer of control, the lease is treated as financing. If the lessor does not convey risk and rewards or control, the lease is treated as operating. We determine if an arrangement is a lease, or contains a lease, at inception and record the lease in our financial statements upon lease commencement, which is the date when the underlying asset is made available for use by the lessor.

 

Right-of-use assets represent our right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments over the lease term. Lease right-of-use assets and liabilities at commencement are initially measured at the present value of lease payments over the lease term. We generally use our incremental borrowing rate based on the information available at commencement to determine the present value of lease payments except when an implicit interest rate is readily determinable. We determine our incremental borrowing rate based on market sources including relevant industry data.

 

We have lease agreements with lease and non-lease components and have elected to utilize the practical expedient to account for lease and non-lease components together as a single combined lease component, from both a lessee and lessor perspective with the exception of direct sales-type leases and production equipment classes embedded in supply agreements. From a lessor perspective, the timing and pattern of transfer are the same for the non-lease components and associated lease component and, the lease component, if accounted for separately, would be classified as an operating lease.

 

38

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

We have elected not to present short-term leases on the balance sheet as these leases have a lease term of 12 months or less at lease inception and do not contain purchase options or renewal terms that we are reasonably certain to exercise. All other lease assets and lease liabilities are recognized based on the present value of lease payments over the lease term at commencement date. Because most of our leases do not provide an implicit rate of return, we used our incremental borrowing rate based on the information available at lease commencement date in determining the present value of lease payments.

 

Our leases, where we are the lessee, do not include an option to extend the lease term. For purposes of calculating lease liabilities, lease term would include options to extend or terminate the lease when it is reasonably certain that we will exercise such options.

 

Lease expense for operating leases is recognized on a straight-line basis over the lease term as an operating expense, included as a component of general and administrative expenses, in the accompanying consolidated statements of operations.

 

Certain operating leases provide for annual increases to lease payments based on an index or rate, our lease has no stated increase, payments were fixed at lease inception. We calculate the present value of future lease payments based on the index or rate at the lease commencement date. Differences between the calculated lease payment and actual payment are expensed as incurred.

 

At September 30, 2023 and December 31, 2022, respectively, the Company had no financing leases as defined in ASC 842, “Leases.”

 

The tables below present information regarding the Company’s operating lease assets and liabilities at September 30, 2023 and 2022, respectively:

 

Schedule of Lease Expense 

    For the Nine
Months Ended		     For the Nine
Months Ended		  
    September 30, 2023     September 30, 2022  
Operating Leases   $ 32,426     $ 34,294  
Interest on lease liabilities     15,789       11,598  
Total net lease cost   $ 48,215     $ 45,892  

 

39

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Supplemental balance sheet information related to leases was as follows:

Schedule of Supplemental Information Related to Leases 

    September 30, 2023     December 31, 2022  
             
Operating leases                
                 
Operating lease ROU assets - net   $ 398,926     $ 431,352  
                 
Operating lease liabilities - current     42,208       39,490  
Operating lease liabilities - non-current     367,465       399,413  
Total operating lease liabilities   $ 409,673     $ 438,903  

 

Supplemental cash flow and other information related to leases was as follows:

Schedule of Supplemental Cash Flow and Other Information Related to Leases 

    For the Nine
Months Ended		     For the Nine
Months Ended		  
    September 30, 2023     September 30, 2022  
Cash paid for amounts included in measurement of lease liabilities                
Operating cash flows from operating leases   $ 29,230     $ 30,948  
                 
ROU assets obtained in exchange for lease liabilities                
Operating leases   $ -     $ -  
                 
Weighted average remaining lease term (in years)                
Operating leases     6.75       7.99  
                 
Weighted average discount rate                
Operating leases     5 %     5 %

 

40

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Future minimum lease payments for the years ended December 31:

 

Schedule of Future Minimum Payments 

         
2023 (3 Months)   $ 15,274  
2024     61,876  
2025     63,460  
2026    

65,044

  

2027

    

66,627

  
Thereafter     217,506  
Total lease payments     489,787  
Less: amount representing interest     (80,114 )
Total lease obligations     409,673  
Less: short term lease liability     (42,208 )
Long term lease liability   $ 367,465  

 

Employment Agreements (Chief Executive Officer and Chief Financial Officer)

 

Chief Financial Officer

 

In November 2023, the Company finalized the terms of its employment agreement with its Chief Financial Officer as follows:

 

  1. Base salary
    a. For the year ended December 31, 2023 - $475,000,
    b. For the year ended December 31, 2024 - $489,250; and
    c. For the year ended December 31, 2025 - $503,928
       
  2. Annual cash bonus
    a. For the year ended December 31, 2023 - $510,000; and
    b. Future years – to be determined by the Board of Directors
       
  3. Restricted Stock Awards
    a. Effective November 10, 2023, 600,000 shares of common stock.
    b. The shares will vest as follows:
      i. 200,000 on December 31, 2023,
      ii. 200,000 on December 31, 2024; and
      iii. 200,000 on December 31, 2025,
      iv. Shares shall immediately vest if any of the following occur and the Chief Financial Officer is employed by the Company at the time of:
        1. Death,
        2. Total disability,
        3. Termination without cause; and
        4. Change in control
       
  4. Other
    a. Vacation,
    b. Car allowance of $500 per month,
    c. Home office expense reimbursement of $667 per month,
    d. 401(K) plan participation,
    e. Life insurance; and
    f. Liability insurance

 

Chief Executive Officer

 

The Company is currently finalizing amendments to the terms of its executive employment agreement with its Chief Executive Officer. This agreement is expected to be completed during the fourth quarter of 2023.

 

Contingencies – Legal Matters

 

During the normal course of business, the Company may be exposed to litigation. When the Company becomes aware of potential litigation, it evaluates the merits of the case in accordance with Financial Accounting Standards Board (“FASB”) ASC 450-20-50, “Contingencies”. The Company evaluates its exposure to the matter, possible legal or settlement strategies and the likelihood of an unfavorable outcome. If the Company determines that an unfavorable outcome is probable and can be reasonably estimated, it establishes the necessary accruals.

 

As of September 30, 2023, for all matters listed below, the Company is not aware of any contingent liabilities that should be reflected in the consolidated financial statements.

 

True Wireless and Surge Holdings - Terracom Litigation

 

Global Reconnect, LLC and Terracom, Inc. v. Jonathan Coffman, Jerry Carroll, True Wireless, & Surge Holdings: In the Chancery Court of Hamilton County, TN, Docket # 20-00058, Filed Jan 21, 2020. On January 21, 2020, a complaint was filed related to a noncompetition dispute. Terracom believes Mr. Coffman and Mr. Carroll are in violation of their non-compete agreements by working for us and True Wireless, Inc. Oklahoma and Tennessee state law does not recognize non-compete agreements and are not usually enforced in the state courts of these states, as such we believe True Wireless has a strong case against Terracom. The matter is entering the discovery process. Both Mr. Carroll and Mr. Coffman are no longer working for True Wireless in sales. Mr. Carroll is off the payroll and Mr. Coffman works for SurgePays, Inc., but not in wireless sales. The complaint requests general damages plus fees and costs for tortious interference with a business relationship in their prayer for relief. They have made no written demand for damages at this point in time. The Company believes this matter is simply an anti-competitive attempt by Terracom to cause distress to True Wireless. The case was dismissed without prejudice by the Court on December 15, 2022.

 

41

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Surge Holdings – Juno Litigation

 

Juno Financial v. AATAC and Surge Holdings Inc. AND Surge Holdings Inc. v. AATAC; Circuit Court of Hillsborough County, Florida, Case # 20-CA-2712 DIV A: Breach of Contract, Account Stated and Open Account claims against Surge by a factoring company. Surge has filed a cross-complaint against defendant AATAC for Breach of Contract, Account Stated, Open Account and Common Law Indemnity. The case remains in discovery but has been inactive for some time. Following analysis by our litigation counsel stating that there is a good defense, management has decided that a reserve is not necessary. The case remains on the docket and has no court dates set at this time.

 

True Wireless and SurgePays – Litigation

 

Blue Skies Connections, LLC, and True Wireless, Inc. v. SurgePays, Inc., et. al.: In the District Court of Oklahoma County, OK, CJ-2021-5327, filed on December 13, 2021. Plaintiffs petition alleges breach of a Stock Purchase Agreement by SurgePays, SurgePhone Wireless, LLC, and Kevin Brian Cox, and makes other allegations related to SurgePays’ consulting work with Jonathan Coffman, a True Wireless employee. Blue Skies believes the Defendants are in violation of their non-competition and non-solicitation agreements related to the sale of True Wireless from SurgePays to Blue Skies. Oklahoma state law does not recognize non-compete agreements and non-solicitation agreements in the manner alleged by Plaintiffs, as such we believe SurgePays, SurgePhone, and Cox have a strong defense against the claims asserted by Blue Skies and True Wireless. The matter continues in the discovery process. Mr. Coffman is no longer working for True Wireless. An attempt at mediation in July, 2022 did not achieve a settlement. The petition requests injunctive relief, general damages, punitive damages, attorney fees and costs for alleged breach of contract, tortious interference with a business relationship, and fraud. Plaintiffs have made a written demand for damages and the parties continue to discuss a potential resolution. This matter is an anti-competitive attempt by Blue Skies and True Wireless to damage SurgePays, SurgePhone, and Cox. Written discovery is winding down and depositions began in the third quarter of 2023 and are expected to continue into the fourth quarter of 2023. The case is set for trial in April 2024.

  

Aliotta and Vasquesz v SurgePays – Litigation

 

Robert Aliotta and Steve Vasquez, on behalf of themselves and others similarly situated v. SurgePays, Inc. d/b/a Surge Logics, filed January 4, 2023, in the U.S. District Court for the Northern District of Illinois, Case No. 1:23-cv-00042. Plaintiffs allege violations of the Telephone Consumer Protection Act (TCPA) and the Florida Telephone Solicitations Act (FTSA) based on telephone solicitations allegedly made by or on behalf of SurgePays, Inc. Plaintiffs seek damages for themselves and seek certification of a class action on behalf of others similarly situated. Defendants intend to vigorously defend the action however most similar cases are eventually resolved by an out-of-court settlement. Plaintiff Steve Vasquez has been dismissed from the action. SurgePays, Inc has been removed from the case following a Motion to Dismiss and LogicsIQ, Inc. has been named as the defendant. The case remains in the discovery stage.

 

SurgePays – Mike Fina Litigation

 

SurgePays, Inc. et al. v. Fina et al., Case No. CJ-2022-2782, District Court of Oklahoma County, Oklahoma. Plaintiffs SurgePays, Inc. and Kevin Brian Cox initiated this case against its former officer Mike Fina, his companies Blue Skies Connections, LLC, True Wireless, Inc., Government Consulting Solutions, Inc., Mussell Communications LLC, and others. This case also arises from the June 2021 transaction by which SurgePays sold True Wireless to Blue Skies. During the litigation of CJ-2021-5327 described above, SurgePays learned information that showed Mike Fina breached his duties owed to True Wireless during his employment and consulting work for True Wireless prior to SurgePays’ sale of True Wireless to Blue Skies. SurgePays alleges that Mike Fina conspired with the other defendants to damage True Wireless thereby harming the value of the company and causing its eventual sale at a greatly reduced price. SurgePays asserts claims for (i) breach of contract; (ii) breach of fiduciary duty; (iii) fraud; (iv) tortious interference; and (v) unjust enrichment. At this stage, no defendant has asserted a counter-claim against SurgePays.

 

42

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

SurgePays filed a Second Amended Petition on January 27, 2023. Defendants Fina, Blue Skies, True Wireless, and Government Consulting Solutions filed a Motion to Dismiss on March 10, 2023. On June 29, 2023, the Court granted the Motion to Dismiss, ruling the claims asserted are “derivative” and could only be asserted by the True Wireless entity now owed by Blue Skies. The parties could not reach agreement on an Order memorializing the Court’s ruling, and the Court has set the matter for hearing on November 16, 2023. The Court rejected Defendant Misty Garrett’s untimely request to join in the Motion to Dismiss, and Defendants Misty Garrett, Rob Rowlen, and Terracom, LLC remain as defendants in the case. It is SurgePays’ present intent to vigorously appeal the Court’s dismissal of Fina, Blue Skies, True Wireless, and Government Consulting Solutions, and to continue prosecuting the case against the other Defendants. At this early stage, no attempts at settlement have been made.

 

SurgePays, Inc. v. Blue Skies Connections, LLC

 

In the Circuit Court of Tennessee for the 30th Judicial District at Memphis, Docket # CT-3219-23. On August 8, 2023, a complaint was filed by SurgePays for breach of a promissory note by Blue Skies Connections, LLC. The note at issue is dated June 14, 2021, and requires Blue Skies Connections to repay the principal sum of $176,850.56, by monthly payments of $7,461.37 commencing on June 1, 2023. Blue Skies Connections has failed to make any payments due under the terms of the note, and this breach entitles SurgePays to demand payment of the entire amount of the note together with all accrued interest. Service of the Complaint on Blue Skies Connections was achieved on September 15, 2023, and the responsive pleading from Blue Skies Connections was due on or before October 16, 2023.

 

Note 9 – Stockholders’ Equity

 

At September 30, 2023, the Company had three (3) classes of stock:

 

Common Stock

 

- 500,000,000 shares authorized
- Par value - $0.001
- Voting at 1 vote per share

 

43

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Series A, Convertible Preferred Stock

 

- 13,000,000 shares authorized
- none issued and outstanding
- Par value - $0.001
- Voting at 10 votes per share
- Ranks senior to any other class of preferred stock
- Dividends - none
- Liquidation preference – none
- Rights of redemption - none
- Conversion into 1/10 of a share of common stock for each share held

 

In 2022, all Series A, Preferred stockholders, representing 260,000 shares issued and outstanding, agreed to convert their holdings into 1,300,000 shares of common stock. The transaction had a net effect of $0 on stockholders’ equity.

 

Series C, Convertible Preferred Stock

 

- 1,000,000 shares authorized
- None issued and outstanding
- Par value - $0.001
- Voting at 250 votes per share
- Ranks junior to any other class of preferred stock
- Dividends – equal to the per share amount (as converted basis) as the common stockholders should the Board of Directors declare a dividend
- Liquidation preference – original issue price plus any declared yet unpaid accrued dividends
- Rights of redemption - none
- Conversion into 250 shares of common stock for each share held

 

 

44

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Securities and Incentive Plan

 

In March 2023, the Company’s shareholders approved the 2022 Plan (the “Plan”) initially approved, authorized and adopted by the Board of Directors in August 2022.

 

The Plan provides for the following:

 

1. 3,500,000 shares of common stock
2. An annual increase on the first day of each calendar year beginning January 1, 2023 and ending on January 31, 2031 equal to the lesser of:

 

a. 10% of the common stock outstanding on the final day of the immediately preceding calendar year, or
b. Such smaller amount of common stock as determined by the Board of Directors.

 

3. The shares may be issued as follows to directors, officers, employees, and consultants:

 

a. Distribution equivalent rights
b. Incentive share options
c. Non-qualified share options
d. Performance unit awards
e. Restricted share awards
f. Restricted share unit awards
g. Share appreciation rights
h. Tandem share appreciation rights
i. Unrestricted share awards

 

See the proxy statement filed with the SEC on January 19, 2023 for a complete detail of the Plan.

 

Equity Transactions for the Nine Months Ended September 30, 2023

 

Stock Issued for Services

 

The Company issued 182,615 shares of common stock for services rendered, having a fair value of $874,284 ($4.19 - $9.40/share), based upon the quoted closing trading price.

 

Exercise of Warrants

 

The Company issued 43,814 shares of common stock upon an exercise of warrants with an exercise price of $4.73 for $207,240.

 

45

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Equity Transactions for the Year Ended December 31, 2022

 

Stock Issued as Direct Offering Costs

 

The Company issued 200,000 shares of common stock for services rendered in connection with the Company’s NASDAQ uplisting in 2021. As a result, the Company recorded the par value of the common stock issued with a corresponding charge to additional paid-in capital, resulting in a net effect of $0 to stockholders’ equity.

 

Stock Issued for Acquisition of Software

 

The Company acquired software having a fair value of $711,400. Payment for the software consisted of $300,000 in cash and the Company issued 85,000 shares of common stock having a fair value of $411,400 ($4.84/share), based upon the quoted closing trading price.

 

Exercise of Warrants (Cashless)

 

The Company issued 147,153 shares of common stock in connection with a cashless exercise of 498,750 warrants. The transaction had a net effect of $0 on stockholders’ equity.

 

Exercise of Warrants

 

The Company issued 100 shares of common stock in connection with an exercise of 473 warrants for $473.

 

46

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Stock Options

 

Stock option transactions for the nine months ended September 30, 2023 and the year ended December 31, 2022 are summarized as follows:

 

Schedule of Stock Option Transactions

                Weighted           Weighted  
                Average           Average  
          Weighted     Remaining     Aggregate     Grant  
    Number of     Average     Contractual     Intrinsic     Date  
Stock Options   Options     Exercise Price     Term (Years)     Value     Fair Value  
Outstanding - December 31, 2021     17,004     $ 16.00       5.16     $ -       -  
Vested and Exercisable - December 31, 2021     3,401     $ 16.00       5.16     $ -          
Unvested and non-exercisable - December 31, 2021     13,603     $ 16.00       5.16     $ -          
Granted     -       -                     $ -  
Exercised     -       -                          
Cancelled/Forfeited     -       -                          
Outstanding - December 31, 2022     17,004     $ 16.00       4.16     $ -       -  
Vested and Exercisable - December 31, 2022     6,801     $ 16.00       4.16     $ -          
Unvested and non-exercisable - December 31, 2022     10,203     $ 16.00       4.16     $ -          
Granted     -       -                     $ -  
Exercised     -       -                          
Cancelled/Forfeited     -       -                                                 
Outstanding - September 30, 2023     17,004     $ 16.00       3.67     $ -       -  
Vested and Exercisable - September 30, 2023     11,902     $ 16.00       3.67     $ -          
Unvested and non-exercisable - September 30, 2023     5,101     $ 16.00       3.67     $ -          

 

During 2023 and 2022, 5,101 and 3,401 stock options vested each year, respectively, and were held by the Company’s Chief Financial Officer.

 

Stock-based compensation expense for the three months ended September 30, 2023 and 2022 was $9,294 and $9,294, respectively.

 

Stock-based compensation expense for the nine months ended September 30, 2023 and 2022 was $27,880 and $27,880, respectively.

 

As of September 30, 2023, compensation cost related to the unvested options not yet recognized was $15,489.

 

Weighted average period in which compensation will vest (years) 0.42 years. The unvested stock option expense is expected to be recognized through March 2024.

 

47

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Warrants

 

Warrant activity for the nine months ended September 30, 2023 and the year ended December 31, 2022 are summarized as follows:

 

Schedule of Warrants Activity

                Weighted        
          Weighted     Average        
          Average     Remaining     Aggregate  
    Number of     Exercise     Contractual     Intrinsic  
Warrants   Warrants     Price     Term (Years)     Value  
Outstanding - December 31, 2021     6,082,984     $ 8.68       2.93     $ -  
Vested and Exercisable - December 31, 2021     5,852,984     $ 8.70       2.85     $ -  
Unvested - December 31, 2021     230,000     $ 8.00       4.85     $ -  
Granted     189,000     $ 4.73       -          
Exercised     (498,850 )   $ 6.49       -          
Cancelled/Forfeited     (91,743 )   $ 40.02       -          
Outstanding - December 31, 2022     5,681,392     $ 5.05       1.85     $ 10,026,387  
Vested and Exercisable - December 31, 2022     5,681,392     $ 5.05       1.85     $ 10,026,387  
Unvested - December 31, 2022     -     $ -       -     $ -  
Granted     -     $ -       -          
Exercised     (43,814 )   $ 4.73       -          
Cancelled/Forfeited     (20,686 )   $ 23.65       -          
Outstanding - September 30, 2023     5,616,892     $ 4.99       1.11     $ -  
Vested and Exercisable - September 30, 2023     5,616,892     $ 4.99       1.11     $ -  
Unvested and non-exercisable - September 30, 2023     -     $ -       -     $ -  

 

Warrant Transactions for the Year Ended December 31, 2022

 

Warrants Issued as Debt Issue Costs

 

In connection with $1,700,000 in notes payable (See Note 6), the Company issued 51,000 warrants, which are accounted for as debt issue costs, having a fair value of $115,404. These debt issue costs were amortized in full as of December 31, 2022.

 

48

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

The fair value of these warrants was determined using a Black-Scholes option pricing model with the following inputs:

 

Schedule of Fair Value of Warrants

Expected term (years)   3 years  
Expected volatility     119% - 120 %
Expected dividends     0 %
Risk free interest rate     2.45% - 2.80 %

 

Warrants Issued as Interest Expense

 

A vendor increased the amount of credit the Company had for making purchases. In consideration for the increase, the Company issued 90,000 warrants, which are accounted for as interest expense, having a fair value of $212,608.

 

The fair value of these warrants was determined using a Black-Scholes option pricing model with the following inputs:

 

Schedule of Fair Value of Warrants

Expected term (years)   3 years  
Expected volatility     120 %
Expected dividends     0 %
Risk free interest rate     2.71 %

 

In 2022, the Company extended the due dates of certain notes payable totaling $1,600,000 for an additional 6 months. In consideration for the extension of the maturity date, the Company issued 48,000 warrants, which are accounted for as additional interest expense, having a fair value of $153,186. The Company also determined that these transactions were classified as debt modifications and that extinguishment accounting did not apply.

 

The fair value of these warrants was determined using a Black-Scholes option pricing model with the following inputs:

 

Schedule of Fair Value of Warrants

Expected term (years)   3 years  
Expected volatility     116% - 119 %
Expected dividends     0 %
Risk free interest rate     4.13% - 4.25 %

 

Note 10 – Segment Information

 

Operating segments are defined as components of an enterprise about which separate financial information is available and evaluated regularly by the chief operating decision maker, or decision–making group, in deciding how to allocate resources and in assessing performance. The Company’s chief operating decision maker is its Chief Executive Officer.

 

The Company evaluated the performance of its operating segments based on revenue and operating loss. All data below is prior to intercompany eliminations.

 

49

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Segment information for the Company’s operations for the three and nine months ended September 30, 2023 and 2022, are as follows:

 

Schedule of Operating Segments

    2023     2022     2023     2022  
    For the Three Months Ended
September 30,		     For the Nine Months Ended
September 30,		  
    2023     2022     2023     2022  
                         
Revenues                                
Surge Phone and Torch Wireless   $ 30,662,332     $ 27,345,641     $ 89,536,546     $ 61,462,327  
Surge Blockchain, LLC     9,232       54,707       30,533       102,378  
LogicsIQ, Inc.     684,631       4,763,990       6,647,061       10,689,006  
Surge Fintech & ECS     2,804,639       4,007,007       8,609,570       13,064,149  
Surge Pays, Inc.     -       -       -       -  
Total   $ 34,160,834     $ 36,171,345     $ 104,823,710     $ 85,317,860  
                                 
Cost of revenues                                
Surge Phone and Torch Wireless   $ 19,884,100     $ 24,298,074     $ 62,324,237     $ 54,836,122  
Surge Blockchain, LLC     53       957       204       2,457  
LogicsIQ, Inc.     963,786       5,693,500       5,774,505       10,457,462  
Surge Fintech & ECS     2,832,308       4,258,010       8,523,966       13,276,380  
Surge Pays, Inc.     -       -       -       -  
Total   $ 23,680,247     $ 34,250,541     $ 76,622,912     $ 78,572,421  
                                 
Operating expenses                                
Surge Phone and Torch Wireless   $ 145,057     $ 84,775     $ 307,829     $ 215,664  
Surge Blockchain, LLC     165       300       3,092       53,271  
LogicsIQ, Inc.     173,074       446,292       741,757       1,454,111  
Surge Fintech & ECS     534,840       370,599       1,204,631       1,013,518  
Surge Pays, Inc.     2,535,879       2,031,238       7,944,354       6,918,965  
Total   $ 3,389,015     $ 2,933,204     $ 10,201,663     $ 9,655,529  
                                 
Income (loss) from operations                                
Surge Phone and Torch Wireless   $ 10,633,176     $ 2,962,792     $ 26,904,480     $ 6,410,541  
Surge Blockchain, LLC     9,014       53,450       27,237       46,650  
LogicsIQ, Inc.     (452,229 )     (1,375,802 )     130,799       (1,222,567 )
Surge Fintech & ECS     (562,509 )     (621,602 )     (1,119,028 )     (1,225,749 )
Surge Pays, Inc.     (2,535,880 )     (2,031,238 )     (7,944,353 )     (6,918,965 )
Total   $ 7,091,572     $ (1,012,400 )   $ 17,999,135     $ (2,910,090 )

 

All intercompany accounts are separately presented above as both a component of the assets and liabilities. These amounts net to $0 in the Company’s consolidated balance sheets.

 

50

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Segment information for the Company’s assets and liabilities at September 30, 2023 and December 31, 2022, are as follows:

 

    September 30, 2023     December 31, 2022  
             
Total Assets                
Surge Phone and Torch Wireless   $ 47,829,587     $ 27,239,365  
Surge Blockchain, LLC     (523,544 )     (550,782 )
LogicsIQ, Inc.     1,564,471       2,500,499  
Surge Fintech & ECS     805,254       1,906,212  
Surge Pays, Inc.     (6,436,443 )     2,908,212  
Total   $ 43,239,325     $ 34,003,506  
                 
Total Liabilities                
Surge Phone and Torch Wireless   $ 9,170,215     $ 15,484,392  
Surge Blockchain, LLC     198,197       198,197  
LogicsIQ, Inc.     1,561,065       2,619,521  
Surge Fintech & ECS     76,992       58,919  
Surge Pays, Inc.     8,389,354       10,524,224  
Total   $ 19,395,823     $ 28,885,253  

 

All intercompany accounts are separately presented above as both a component of the assets and liabilities. These amounts net to $0 in the Company’s consolidated balance sheets.

 

Note 11 – Installment Sale Liability

 

Agreement

 

In 2022, the Company executed a two-year (2) financing arrangement with Affordable Connectivity Financing (“ACF”, “Seller”) to receive up to $25,000,000 to purchase devices for sale.

 

This agreement is based upon the Company submitting a purchase order and ACF approving the request. The Company may cancel the purchase order prior to ACF paying for the devices. The agreement may be extended by a period of one (1) year upon mutual consent.

 

Under the terms of the agreement, ACF is directly purchasing products and reselling to the Company at a markup. At December 31, 2022, the markup was 9.85%. Effective April 1, 2023 and each quarter thereafter, this amount is subject to increase based upon the secured overnight financing rate.

 

Repayment Period

 

Each installment sale contract shall be repaid over a period of nine (9) months.

 

51

 

SURGEPAYS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

SEPTEMBER 30, 2023

(UNAUDITED)

 

Security

 

This arrangement is fully secured by all assets of the Company.

 

Minimum Outstanding Balance

 

3 month rolling average of 70% of the installment sale credit amount.

 

Prepayment Penalty

 

The Company is subject to a cancellation fee of 3% during the first year and 2% during the second year.

 

Administrative Fee

 

The Company is required to pay $2,000 per month.

 

Default Rate

 

For any unpaid amounts under this agreement, the Company is subject to a fee of 1.35% per month (16.2% annualized).

 

Commitment Fee

 

ACF charged a 2% commitment fee on the initial installment sale, and 2% for each incremental increase of $5,000,000 in the installment sale credit amount.

 

For example, if the initial installment sale credit amount is $15,000,000, the credit availability fee would be $300,000 (2%). Any subsequent increase of $5,000,000 or more would result in an additional fee of $100,000 (2%). Commitment fees are paid over a period of 12 months as part of the Seller’s monthly invoicing.

 

Covenants

 

At September 30, 2023 and December 31, 2022, respectively, the Company was in compliance with all of the following ratios:

 

1. Company adjusted EBITDA,
2. Total Leverage Ratio,
3. Fixed Charge Coverage Ratio,
4. Minimum Subscriber Base; and
5. Minimum Liquidity

 

Additionally, the Company is required to provide various data to the vendor on a periodic basis. The Company has not received notice from the vendor regarding any instances of non-compliance.

 

Lockbox

 

The Company will maintain a lockbox for the benefit of the Seller.

 

Installment Sale Liability

 

At September 30, 2023 and December 31, 2022, the Company has recorded an installment sale liability of $5,920,346 and $13,018,184, respectively, which is included in the accompanying consolidated balance sheets.

 

During the three and nine months ended September 30, 2023, the Company paid fees of $135,706 and $402,212, respectively. These amounts have been included as a component of cost of goods sold in the accompanying consolidated statements of operations.

 

52

 

ITEM 2: MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This statement contains forward-looking statements within the meaning of the Securities Act. Discussions containing such forward-looking statements may be found throughout this statement. Actual events or results may differ materially from those discussed in the forward-looking statements as a result of various factors, including the matters set forth in this statement. The accompanying consolidated financial statements as of September 30, 2023 and 2022 and for the three months and nine months then ended includes the accounts of SurgePays, Inc. and its wholly owned subsidiaries during the period owned by SurgePays, Inc.

 

About SurgePays, Inc.

 

SurgePays, Inc. (“SurgePays”, “we” the “Company”) was incorporated in Nevada on August 18, 2006, and is a financial technology and telecom company focused on providing these essential services to the underbanked community. The Company’s wireless subsidiaries, SurgePhone Wireless and Torch Wireless, provide mobile broadband, voice and SMS text messaging to both subsidized and direct retail prepaid customers. The Company’s blockchain fintech platform utilizes a suite of financial and prepaid products to convert corner stores into tech-hubs for underbanked neighborhoods.

 

SurgePhone Wireless and Torch Wireless

 

SurgePhone and Torch, wholly owned subsidiaries of SurgePays, are mobile virtual network operators (MVNO) licensed by the Federal Communications Commission (the “FCC”) to provide subsidized access to quality internet through mobile broadband services to consumers qualifying under the federal guidelines of the Affordable Connectivity Program (the “ACP”). The ACP (the successor program, as of March 1, 2022 to the Emergency Broadband Benefit program) provides SurgePhone and Torch up to a $100 reimbursement for the cost of each tablet device distributed and a $30 per customer, per month subsidy for mobile broadband (internet connectivity) services. SurgePhone and Torch combined are licensed to offer subsidized mobile broadband to all fifty states.

 

53

 

SurgePays Fintech (ECS Business)

 

We refer to the collective operations of ECS Prepaid, LLC, a Missouri limited liability company, Electronic Check Services, Inc., a Missouri corporation, and Central States Legal Services, Inc., a Missouri corporation, as “Surge Fintech.” This was previously referred to as the “ECS Business.”

 

Surge Fintech has been a financial technology tech and wireless top-up platform for over 15 years. Through a series of transactions between October 2019 and January 2020, we acquired the ECS Business primarily for the favorable ACH banking relationship and a fintech transactions platform processing over 20,000 transactions a day at approximately 8,000 independently owned convenience stores. The platform serves as the proven backbone for wireless top-up transactions and wireless product aggregation for the SurgePays nationwide network.

 

ShockWave CRM™

 

SurgePays acquired the Software as a Service (SaaS) Customer Relationship Management (CRM) and Billing System software platform “MVNO Cloud Services” on June 7, 2022. Payment for the software consisted of $300,000 in cash, of which $100,000 was paid in June 2022, and the remaining $200,000 in July 2022. Additionally, the Company issued 85,000 shares of common stock having a fair value of $411,400 ($4.84/share), based upon the quoted closing trading price. SurgePays has rebranded the software as ShockWave CRM.

 

ShockWave is an end-to-end cloud-based SaaS offering an Omnichannel CRM, Billing system and carrier integrations specific to the telecommunication and broadband industry. Some of these services include sales agent management, device and SIM inventory management, order processing and provisioning, retail POS activations and payments, customer service management, retention tools, billing, and payments.

 

Surge Blockchain

 

Surge Blockchain Software is a back-office marketplace (accessed through the SurgePays fintech portal for convenience stores) offering wholesale consumable goods direct to convenience stores who are transacting on the SurgePays Fintech platform. The wholesale e-commerce platform is easily accessed through the secure app interface – similar to a website. We believe what makes this sales platform unique is that it also offers the merchant the ability to order wholesale consumable goods at a significant discount from traditional distributors with one touch ease. We are able to sell products at a significant discount by using on demand Direct Store Delivery (DSD). Our platform is connected directly to manufacturers, who ship products direct to the store while cutting out the middleman. The goal of the SurgePays Portal is to leverage the competitive advantage and efficiencies of e-commerce to provide as many commonly sold consumable products as possible to convenience stores, corner markets, bodegas, and supermarkets while increasing profit margins for these stores.

 

LogicsIQ, Inc.

 

LogicsIQ, Inc. is a lead generation and case management solutions company primarily serving law firms in the mass tort industry. LogicsIQ’s CRM “Intake Logics” facilitates the entire life cycle of converting a lead into a signed retainer client integrated into the law firm’s case management software. Our proven strategy of delivering cost-effective retained cases to our attorney and law firm clients means those clients are better able to manage their media and advertising budgets and reach targeted audiences more quickly and effectively when utilizing our proprietary data driven analytics dashboards. Our ability to deliver transparent results through our integrated Business Intelligence (B.I.) dashboards has bolstered our reputation as an industry leader in the mass tort client acquisition field.

 

Centercom

 

Since 2019, we have owned a 40% equity interest in Centercom Global, S.A. de C.V. (“Centercom”). Centercom is a bilingual operations center providing the Company with sales support, customer service, IT infrastructure design, graphic media, database programming, software development, revenue assurance, lead generation, and other various operational support services. Centercom is based in El Salvador.

 

COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 2023 AND 2022

 

Reclassifications

 

Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no effect on the consolidated results of operations, stockholders’ deficit, or cash flows.

 

Revenues during the three months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
             
Revenue   $ 34,160,834     $ 36,171,345  
Cost of revenue (exclusive of depreciation and amortization)     (23,680,247 )     (34,250,541 )
General and administrative     (3,389,015 )     (2,933,204 )
Income (loss) from operations   $ 7,091,572     $ (1,012,400 )

 

54

 

Revenue decreased overall by $2,010,511 (5.6%) from the three months ended September 30, 2022 to the three months ended September 30, 2023. The breakout was as follows:

 

   

For the Three Months Ended

September 30,

  
    2023     2022  
             
Revenues:                
Surge Phone and Torch Wireless   $ 30,662,332     $ 27,345,641  
Surge Blockchain, LLC     9,232       54,707  
LogicsIQ, Inc.     684,631       4,763,990  
Surge Fintech & ECS     2,804,639       4,007,007  
Total   $ 34,160,834     $ 36,171,345  

 

SurgePhone and Torch Wireless revenues (as detailed in Notes 2 and 10 of the financial statements) increased by $3,316,691 related to the additional revenue stream generated by the increase in subscribers at the end of September 30, 2023 for the Affordable Connectivity Program replacing the Emergency Broadband Benefit Program started in August of 2021. LogicsIQ revenues decreased by $4,079,359 related to the slowing of Camp Lejeune litigation cases requested by our clients. The overall case count went from 3,635 in the three months ended September 30, 2022 to 760 in the three months ended September 30, 2023. Surge Fintech (ECS) revenues decreased by $1,202,368 due to the shifting of customers to the ACP from wireless prepaid services at our stores.

 

We expect revenues to grow for the Company in future periods, specifically our subscriber base and active store count.

 

   

For the Three Months Ended

September 30,

  
    2023     2022  
Income (loss) from operations:                
Surge Phone and Torch Wireless   $ 10,633,176     $ 2,962,792  
Surge Blockchain, LLC     9,014       54,450  
LogicsIQ, Inc.     (452,229 )     (1,375,802 )
Surge Fintech & ECS     (562,509 )     (621,602 )
SurgePays, Inc.     (2,535,879 )     (2,031,238 )
Total   $ 7,091,572     $ (1,012,400 )

 

55

 

Operations income improved overall by $8,103,972 from the three months ended September 30, 2022 to the three months ended September 30, 2023, primarily as a result of an increase in operating profit of $7,670,384 in SurgePhone and Torch Wireless, a decrease in operating loss of $923,573 in LogicsIQ, and a decrease in operating loss of $59,093 in Surge Fintech. Most of these changes are related to the change in revenue for each stream. Overall margins remained consistent for both three-month periods ended September 30, 2022 and 2023.

 

Cost of Revenue, Gross Profit and Gross Margin

 

   

For the Three Months Ended

September 30,

  
    2023     2022  
Cost of Revenue:            
Surge Phone and Torch Wireless   $ 19,884,100     $ 24,298,074  
Surge Blockchain, LLC     53       957  
LogicsIQ, Inc.     963,786       5,693,500  
Surge Fintech & ECS     2,832,308       4,258,010  
Total   $ 23,680,247     $ 34,250,541  

 

Cost of revenue for services primarily consists of tablet, phone and SIM cards and associated freight, shipping and handling costs, marketing services, data plan expenses, royalties, and out-sourced call center expenses.

 

We expect that our cost of revenue will increase or decrease to the extent that our revenue increases and decreases and depends on our subscriber base and store count.

 

Gross profit is calculated as revenue less cost of revenue. Gross profit margin is gross profit expressed as a percentage of revenue. Our gross profit in future periods will depend on a variety of factors, including market conditions that may impact our pricing, sales mix among devices, sales mix changes among consumables, excess and obsolete inventories, and our cost structure for manufacturing operations relative to volume. Our gross profit in future periods will vary based upon our revenue stream mix and may increase based upon our distribution channels.

 

We expect that our gross profit margin for products and service will increase over the long term as our sales and production volumes increase and our cost per unit decreases due to efficiencies of scale. We intend to use our design, information systems, and sales force capabilities to further advance and improve the efficiency of our revenue streams, which we believe will reduce costs and increase our gross margin.

 

General and administrative during the three months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Depreciation and amortization   $ 266,025     $ 303,695  
Selling, general and administration     3,122,990       2,629,509  
Total   $ 3,389,015     $ 2,933,204  

 

The decrease in depreciation and amortization costs for the three months ended September 30, 2023 compared to the three months ended September 30, 2022 is the result of fully depreciated assets during 2022 no longer being depreciated in 2023.

 

Selling, general and administrative expenses during the three months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Contractors and consultants   $ 617,687     $ 472,366  
Professional services     417,414       281,185  
Compensation     918,222       822,411  
Computer and internet     288,229       128,958  
Advertising and marketing     89,069       34,708  
Insurance     339,780       289,410  
Other     452,589       600,471  
Total   $ 3,122,990     $ 2,629,509  

 

56

 

Selling, general and administrative costs (S, G & A) increased by $493,481 (19.0%). The changes are discussed below:

 

● Contractors and consultants expense increased by $145,321 or 30.8% from $472,366 in the three months ended September 30, 2022 to $412,377 in the three months ended September 30, 2023.
   
● Professional services increased $136,229 in the three months ended September 30, 2023 primarily due to an increase in legal fees of $139,908. Legal proceedings are in various stages resulting in increased expense for the quarter ended September 30, 2023.
   
● Compensation increased by $95,811 in the three months ended September 30, 2023 to $918,222 in the three months ended June 30, 2023 primarily as a result of new positions.
   
● Computer and internet costs increased by 123.5% to $288,229 in the three months ended September 30, 2023 from $128,958 in the three months ended September 30, 2022. The increase is primarily due to the acquisition of ShockWave CRM™ and the continued expenses related to the maintenance of the software.
   
● Advertising and marketing costs increased to $89,069 in the three months ended September 30, 2023 from $34,708 in the three months ended September 30, 2022 primarily due to a one-time direct mailing campaign.
   
● Insurance expense increased to $339,780 in the three months ended September 30, 2023 from $289,410 in the three months ended September 30, 2022 primarily as a result of higher premiums related to cyber security.
   
● Other costs decreased to $452,589 in the three months ended September 30, 2023 from $600,471 in the three months ended September 30, 2022. Building related expenses decreased by $118,252 and office expenses decreased by $29,854.

 

Other (expense) income during the three months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Interest, net   $ (130,335 )   $ (633,593 )
Amortization of debt discount     -       (57,933 )
Gain (loss) on equity investment in Centercom     51,894       (52,435 )
Total other (expense) income   $ (78,441 )   $ (743,961 )

 

57

 

Interest expense decreased to $503,258 in the three months ended September 30, 2023 from $633,593 in the three months ended September 30, 2022.

 

The equity investment in Centercom increased by $51,894 in the three months ended September 30, 2023 compared to a decrease of $52,435 in the three months ended September 30, 2022.

 

Equity Transactions for the Three Months Ended June 30, 2023

 

Stock Issued for Services

 

COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 2023 and 2022

 

Reclassifications

 

Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no effect on the consolidated results of operations, stockholders’ deficit, or cash flows.

 

Revenues during the nine months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Revenue   $ 104,823,710     $ 85,317,860  
Cost of revenue (exclusive of depreciation and amortization)     (76,622,912 )     (78,572,421 )
General and administrative     (10,201,663 )     (9,655,529 )
Income (loss) from operations   $ 17,999,135     $ (2,910,090 )

 

58

 

Revenue increased overall by $19,505,850 (22.9%) from the nine months ended September 30, 2022 to the nine months ended September 30, 2023. The breakout was as follows:

 

   

For the Nine Months Ended
September 30,

  
    2023     2022  
             
Revenues:                
Surge Phone and Torch Wireless   $ 89,536,546     $ 61,462,327  
Surge Blockchain, LLC     30,533       102,378  
LogicsIQ, Inc.     6,647,061       10,689,006  
Surge Fintech & ECS     8,609,570       13,064,149  
Total   $ 104,823,710     $ 85,317,860  

 

SurgePhone and Torch Wireless revenues (as detailed in Notes 2 and 11 of the financial statements) increased by $28,074,219 related to the additional revenue stream generated by the increase in subscribers at the end of September 30, 2023 for the Affordable Connectivity Program replacing the Emergency Broadband Benefit Program started in August of 2021. LogicsIQ revenues decreased by $4,041,945. The overall case count went from 6,498 in the nine months ended September 30, 2022 to 3,746 in the nine months ended September 30, 2023. Surge Fintech (ECS) revenues decreased by $4,454,579 due to the shifting of customers to the ACP from wireless prepaid services at our stores.

 

We expect revenues to grow for the Company in future periods, specifically our subscriber base and active store count.

 

   

For the Nine Months Ended
September 30,

  
    2023     2022  
Income (loss) from operations:                
Surge Phone and Torch Wireless   $ 26,904,480     $ 6,410,541  
Surge Blockchain, LLC     27,237       46,650  
LogicsIQ, Inc.     130,799       (1,222,567 )
Surge Fintech & ECS     (1,119,027 )     (1,225,749 )
SurgePays, Inc.     (7,944,354 )     (6,918,965 )
Total   $ 17,999,135     $ (2,910,090 )

 

59

 

Operations income improved overall by $20,909,225 from the nine months ended September 30, 2022 to the nine months ended September 30, 2023, primarily as a result of an increase in operating profit of $20,493,939 in SurgePhone and Torch Wireless, an elimination of operating loss to an operating profit in LogicsIQ, and a decrease in operating loss of $106,722 in Surge Fintech. Most of these changes are related to the change in revenue for each stream.

 

Cost of Revenue, Gross Profit and Gross Margin

 

   

For the Nine Months Ended
September 30,

  
    2023     2022  
Cost of Revenue:            
Surge Phone and Torch Wireless   $ 62,324,237     $ 54,836,122  
Surge Blockchain, LLC     204       2,457  
LogicsIQ, Inc.     5,774,505       10,457,462  
Surge Fintech & ECS     8,523,966       13,276,380  
Total   $ 76,622,912     $ 78,572,421  

 

    For the Nine Months Ended
September 30,		  
    2023     2022  
Gross Profit:                
Surge Phone and Torch Wireless   % 30.0     % 10.4  
Surge Blockchain, LLC     89.2       45.6  
LogicsIQ, Inc.     2.0       (11.4 )
Surge Fintech & ECS     (13.0 )     (9.4 )
Total   % 17.2     % (3.4 )

 

Cost of revenue for services primarily consists of tablet, phone and SIM cards and associated freight, shipping and handling costs, marketing services, data plan expenses, royalties, and out-sourced call center expenses.

 

We expect that our cost of revenue will increase or decrease to the extent that our revenue increases and decreases and depends on our subscriber base and store count.

 

Gross profit is calculated as revenue less cost of revenue. Gross profit margin is gross profit expressed as a percentage of revenue. Our gross profit in future periods will depend on a variety of factors, including market conditions that may impact our pricing, sales mix among devices, sales mix changes among consumables, excess and obsolete inventories, and our cost structure for manufacturing operations relative to volume. Our gross profit in future periods will vary based upon our revenue stream mix and may increase based upon our distribution channels.

 

Overall profit margin improved to 17.2% for the nine-month period ended September 30, 2023 compared to -3.4% for the nine-month period ended September 30, 2022.

 

We expect that our gross profit margin for products and service will increase over the long term as our sales and production volumes increase and our cost per unit decreases due to efficiencies of scale. We intend to use our design, information systems, and sales force capabilities to further advance and improve the efficiency of our revenue streams, which we believe will reduce costs and increase our gross margin.

 

General and administrative during the nine months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Depreciation and amortization   $ 798,074     $ 664,533  
Selling, general and administration     9,403,589       8,990,996  
Total   $ 10,201,663     $ 9,655,529  

 

The increase in depreciation and amortization costs for the nine months ended September 30, 2023 compared to the nine months ended September 30, 2022 is the result of amortizing internal-use software development costs capitalized in 2022 associated with software enhancements to our various software platforms continuing in 2023. There were no such costs incurred in the first nine months of 2022.

 

Selling, general and administrative expenses during the nine months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Contractors and consultants   $ 1,729,842     $ 1,443,516  
Professional services     1,255,451       947,722  
Compensation     3,409,495       3,404,852  
Computer and internet     639,342       286,536  
Advertising and marketing     137,933       170,714  
Insurance     991,035       1,170,905  
Other     1,240,491       1,566,751  
Total   $ 9,403,589     $ 8,990,996  

 

60

 

Selling, general and administrative costs (S, G & A) increased by $412,593 (4.6%). The changes are discussed below:

 

● Contractors and consultants expense increased by $286,326 from $1,443,516 in the nine months ended September 30, 2022 to $1,729,842 in the nine months ended September 30, 2023.
   
● Professional services increased $307,729 in the nine months ended September 30, 2023 primarily due to an increase in legal fees of $238,754. Legal proceedings are the main reason for the higher spending on professional services in 2023.
   
● Compensation increased from $3,404,852 in the nine months ended September 30, 2022 to $3,409,495 in the nine months ended September 30, 2023.
   
● Computer and internet costs increased by 123.1% to $639,342 in the nine months September 30, 2023 from $286,536 in the nine months ended September 30, 2022. The increase is primarily due to the acquisition of ShockWave CRM™ and the on-going expense to maintain the software.
   
● Advertising and marketing costs decreased to $137,933 in the nine months ended September 30, 2023 from $170,714 in the nine months ended September 30, 2022 primarily due to vendor changes related to investor relations.
   
● Insurance expense decreased to $991,035 in the nine months ended September 30, 2023 from $1,170,905 in the nine months ended September 30, 2022 primarily as a result of lower premiums related to Directors and Officers coverage.
   
● Other costs decreased to $1,240,491 in the nine months ended September 30, 2023 from $1,566,751 in the nine months ended September 30, 2022.

 

Other (expense) income during the nine months ended September 30, 2023 and 2022 consisted of the following:

 

    2023     2022  
Interest, net   $ (478,928 )   $ (1,370,236 )
PPP loan forgiveness     -       524,143  
Amortization of debt discount     -       (95,001 )
Gain (loss) on equity investment in Centercom     95,636       (42,099 )
Total other (expense) income   $ (574,564 )   $ (983,193 )

 

61

 

Interest expense decreased to $478,928 in the nine months ended September 30, 2023 from $1,370,236 in the nine months ended September 30, 2022.

 

The equity investment in Centercom increased by $95,636 in the nine months ended September 30, 2023 compared to a decrease of $42,099 in the nine months ended September 30, 2022.

 

Equity Transactions for the Nine Months Ended September 30, 2023

 

Stock Issued for Services

 

The Company issued 182,615 shares of common stock for services rendered, having a fair value of $874,284 ($4.19 - $9.40/share), based upon the quoted closing trading price.

 

Exercise of Warrants

 

The Company issued 43,814 shares of common stock in connection with an exercise of $4.73 warrants for $207,240.

 

Segment Information

 

Operating segments are defined as components of an enterprise about which separate financial information is available and evaluated regularly by the chief operating decision maker, or decision–making group, in deciding how to allocate resources and in assessing performance. The Company’s chief operating decision maker is its Chief Executive Officer.

 

The Company evaluated the performance of its operating segments based on revenue and operating loss. Segment information for the three and nine months ended September 30, 2023 and 2022, are as follows:

 

    For the Three Months Ended
September 30,		     For the Nine Months Ended
September 30,		  
    2023     2022     2023     2022  
    (unaudited)     (unaudited)     (unaudited)     (unaudited)  
Revenues:                                
SurgePhone & Torch Wireless   $ 30,662,332     $ 27,345,641     $ 89,536,546     $ 61,462,327  
Surge Blockchain     9,232       54,707       30,533       102,378  
LogicsIQ     684,631       4,763,990       6,647,061       10,689,006  
Surge Fintech & ECS     2,804,639       4,007,007       8,609,570       13,064,149  
Total   $ 34,160,834     $ 36,171,345     $ 104,823,710     $ 85,317,860  
                                 
Cost of revenues (exclusive of depreciation and amortization):                                
SurgePhone & Torch Wireless   $ 19,884,100     $ 24,298,074     $ 62,324,237     $ 54,836,122  
Surge Blockchain     53       957       204       2,457  
LogicsIQ     963,786       5,693,500       5,774,505       10,457,462  
Surge Fintech & ECS     2,832,308       4,258,010       8,523,966       13,276,380  
Total   $ 23,680,247     $ 34,250,541     $ 76,622,912     $ 78,572,421  
                                 
Operating expenses:                                
SurgePhone & Torch Wireless   $ 145,057     $ 84,775     $ 307,829     $ 215,664  
Surge Blockchain     165       300       3,092       53,271  
LogicsIQ     173,074       446,292       741,757       1,454,111  
Surge Fintech & ECS     534,840       370,599       1,204,631       1,013,518  
SurgePays     2,535,879       2,031,238       7,944,354       6,918,965  
Total   $ 3,389,015     $ 2,933,204     $ 10,201,663     $ 9,655,529  
                                 
Operating income (loss):                                
SurgePhone & Torch Wireless   $ 10,633,176     $ 2,962,792     $ 26,904,480     $ 6,410,541  
Surge Blockchain     9,014       53,450       27,237       46,650  
LogicsIQ     (452,229 )     (1,375,802 )     130,799       (1,222,567 )
Surge Fintech & ECS     (562,509 )     (621,602 )     (1,119,028 )     (1,225,749 )
SurgePays     (2,535,880 )     (2,031,238 )     (7,944,353 )     (6,918,965 )
Total   $ 7,091,572     $ (1,012,400 )   $ 17,999,135     $ (2,910,090 )

 

All intercompany accounts are separately presented above as both a component of the assets and liabilities. These amounts net to $0 in the Company’s consolidated balance sheets.

 

62

 

Segment information for the Company’s assets and liabilities at September 30, 2023 and December 31, 2022, are as follows:

 

    September 30, 2023     December 31, 2022  
    (unaudited)     (audited)  
Total Assets:                
SurgePhone & Torch Wireless   $ 47,829,587     $ 27,239,365  
Surge Blockchain     (523,544 )     (550,782 )
LogicsIQ     1,564,471       2,500,499  
Surge Fintech & ECS     805,254       1,906,212  
SurgePays     (6,436,443 )     2,908,212  
Total   $ 43,239,325     $ 34,003,506  
                 
Total Liabilities:                
SurgePhone & Torch Wireless   $ 9,170,215     $ 15,484,392  
Surge Blockchain     198,197       198,197  
LogicsIQ     1,561,065       2,619,521  
Surge Fintech & ECS     76,992       58,919  
SurgePays     8,389,354       10,524,224  
Total   $ 19,395,823     $ 28,885,253  

 

All intercompany accounts are separately presented above as both a component of the assets and liabilities. These amounts net to $0 in the Company’s consolidated balance sheets.

 

SurgePhone Wireless and Torch Wireless

 

The ACP revenue for the three months ended September 30, 2023 increased by $3,316,691 as compared to the three months ended September 30, 2022. The increase was a result of increasing the subscriber base month over month. Cost of revenues for the three months ended September 30, 2023, decreased by $4,413,975 from the same period ended September 30, 2022, as a result of the device expense ($5,463,473), data usage expenses ($7,341,183) and marketing services paid of ($4,875,587) for the ACP. The operating income increased $7,670,383 from the three months ended September 30, 2022, to operating income of $10,633,175 as of three months ended September 30, 2023.

 

The ACP revenue for the nine months ended September 30, 2023 increased by $28,074,219 as compared to the nine months ended September 30, 2022. The increase was a result of increasing the subscriber base month over month. Cost of revenues for the nine months ended September 30, 2023, increased by $7,488,114 from the same period ended September 30, 2022, as a result of the device expense ($19,066,964), data usage expenses ($21,614,871) and marketing services paid of ($15,276,830) for the ACP. The operating income increased $20,493,939 from the nine months ended September 30, 2022, to operating income of $26,904,480 as of nine months ended September 30, 2023.

 

Surge Blockchain

 

The revenue for the three months ended September 30, 2023 decreased by $45,475 compared to the three months ended September 30, 2022. The operating income for the three months ended September 30, 2023 decreased by $44,436 compared to the same period in 2022.

 

The revenue for the nine months ended September 30, 2023 decreased by $71,845 compared to the nine months ended September 30, 2022. The operating income for the nine months ended September 30, 2023 decreased by $19,413 compared to the same period in 2022.

 

LogicsIQ

 

The revenue for the three months ended September 30, 2023 decreased by $4,079,359 compared to the three months ended September 30, 2022. The revenue changed due to the maturity curve of the various litigation cases as older litigation (Roundup) slowed down and newer litigation (Camp Lejeune) is sourced. Operating income increased by $923,573 for comparable periods of 2023 to 2022. LogicsIQ ended with an operating loss of $452,229 for the three months ended September 30, 2023 compared to an operating loss of $1,375,802 for the same period in 2022.

 

The revenue for the nine months ended September 30, 2023 decreased by $4,041,945 compared to the nine months ended September 30, 2022. The revenue changed due to the maturity curve of the various litigation cases as older litigation (Roundup) slowed down and newer litigation (Camp Lejeune) is sourced. Operating income increased by $1,353,366 for comparable periods of 2023 to 2022. LogicsIQ ended with an operating income of $130,799 for the nine months ended September 30, 2023 compared to an operating loss of $1,222,567 for the same period in 2022.

 

63

 

Surge Fintech and ECS

 

The revenue for the three months ended September 30, 2023 was $2,804,639 compared to $4,007,007 for the same period in 2022. The decrease of 30% was a continuing result of the impact of COVID-19 and our strategic plan to move our salesforce from independent contractors to employed salespersons.

 

The revenue for the nine months ended September 30, 2023 was $8,609,570 compared to $13,064,149 for the same period in 2022. The decrease of 34% was a continuing result of the residual impact of COVID-19 and the shifting of customers to the ACP from wireless prepaid services at our stores.

 

Overall

 

The overall increase in revenue of $19,505,850 from 2022 to 2023 for the nine months ended September 30, can be attributable to opening of some markets and the new revenue stream of the ACP program. The net operating income improved by $20,909,226 from the nine months ended September 30, 2022 to the nine months ended September 30, 2023.

 

LIQUIDITY, CAPITAL RESOURCES AND GOING CONCERN

 

At September 30, 2023 and December 31, 2022, our current assets were $37,253,163 and $27,563,785 respectively, and our current liabilities were $14,484,940 and $23,464,062, respectively, which resulted in a working capital surplus of $22,768,223 on September 30, 2023 and a working capital surplus of $4,099,723 on December 31, 2022.

 

Total assets at September 30, 2023 and December 31, 2022 amounted to $43,239,325 and $34,003,506, respectively. At September 30, 2023, assets consisted of current assets of $37,253,163, net property and equipment of $432,224, net intangible assets of $2,289,847, goodwill of $1,666,782, equity investment in Centercom of $449,843, note receivable of $176,851, internal use software of $571,689, and net operating lease right of use asset of $398,926, as compared to current assets of $27,563,785, net property and equipment of $643,373, net intangible assets of $2,779,977, goodwill of $1,666,782, equity investment in Centercom of $354,206, notes receivable of $176,851, internal use software of $387,180, and net operating lease right of use asset of $431,352 at December 31, 2022.

 

64

 

At September 30, 2023, our total liabilities of $19,395,823 decreased by $9,489,430 from $28,885,253 at December 31, 2022.

 

At September 30, 2023, our total stockholders’ equity was $23,843,502 as compared to $5,118,253 at December 31, 2022. The principal reason for the decrease in stockholders’ equity was the impact of the net income for the period.

 

The following table sets forth the major sources and uses of cash for the nine months ended September 30, 2023 and 2022.

 

    September 30, 2023     September 30, 2022  
             
Net cash used in operating activities   $ 8,329,698     $ (3,951,043 )
Net cash used in investing activities     (281,304 )     (1,109,611 )
Net cash provided by financing activities     (2,352,599 )     6,669,208  
Net change in cash and cash equivalents   $ 5,695,795     $ 1,608,554

 

At September 30, 2023, the Company had the following material commitments and contingencies.

 

Notes payable – related party - See Note 6 to the Consolidated Financial Statements.

 

Notes payable and long-term debt - See Note 6 to the Consolidated Financial Statements.

 

Related party transactions - See Note 2 to the Consolidated Financial Statements for additional discussion.

 

Cash requirements and capital expenditures –At the current level of operations, the Company does not anticipate borrowing funds to meet basic operating costs. The Company may need to borrow funds to meet the hyper-growth expected to occur in the ACP in 2024.

 

Known trends and uncertainties – The Company is planning to acquire other businesses with similar business operations. The uncertainty of the economy may increase the difficulty of raising funds to support the planned business expansion.

 

Critical Accounting Policies and Estimates

 

Management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which were prepared in accordance with U.S. generally accepted accounting principles, or GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions for the reported amounts of assets, liabilities, revenue, and expenses. Our estimates are based on our historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions, and any such differences may be material.

 

While our significant accounting policies are more fully described in Note 2—Summary of Significant Accounting Policies of the Notes to Consolidated Financial Statements included in Item 8, Financial Statements and Supplementary Data of this Annual Report on Form 10-K, we believe the following discussion addresses our most critical accounting policies, which are those that are most important to our financial condition and results of operations and which require our most difficult, subjective and complex judgments.

 

Use of Estimates

 

Preparing financial statements in conformity with U.S. GAAP 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 the financial statements and revenues and expenses during the reported period. Actual results could differ from those estimates, and those estimates may be material.

 

Significant estimates during the years ended December 31, 2022 and 2021, respectively, include, allowance for doubtful accounts and other receivables, inventory reserves and classifications, valuation of loss contingencies, valuation of derivative liabilities, valuation of stock-based compensation, estimated useful lives related to intangible assets, capitalized internal-use software development costs, and property and equipment, implicit interest rate in right-of-use operating leases, uncertain tax positions, and the valuation allowance on deferred tax assets.

 

Fair Value of Financial Instruments

 

The Company accounts for financial instruments under Financial Accounting Standards Board (“FASB”) ASC 820, Fair Value Measurements. ASC 820 provides a framework for measuring fair value and requires disclosures regarding 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, based on the Company’s principal or, in absence of a principal, most advantageous market for the specific asset or liability.

 

The Company uses a three-tier fair value hierarchy to classify and disclose all assets and liabilities measured at fair value on a recurring basis, as well as assets and liabilities measured at fair value on a non-recurring basis, in periods subsequent to their initial measurement. The hierarchy requires the Company to use observable inputs when available, and to minimize the use of unobservable inputs, when determining fair value.

 

65

 

The three tiers are defined as follows:

 

  ● Level 1 - Observable inputs that reflect quoted market prices (unadjusted) for identical assets or liabilities in active markets;
  ● Level 2 - Observable inputs other than quoted prices in active markets that are observable either directly or indirectly in the marketplace for identical or similar assets and liabilities; and
  ● Level 3 - Unobservable inputs that are supported by little or no market data, which require the Company to develop its own assumptions.

 

The determination of fair value and the assessment of a measurement’s placement within the hierarchy requires judgment. Level 3 valuations often involve a higher degree of judgment and complexity. Level 3 valuations may require the use of various cost, market, or income valuation methodologies applied to unobservable management estimates and assumptions. Management’s assumptions could vary depending on the asset or liability valued and the valuation method used. Such assumptions could include estimates of prices, earnings, costs, actions of market participants, market factors, or the weighting of various valuation methods. The Company may also engage external advisors to assist us in determining fair value, as appropriate.

 

Impairment of Long-lived Assets including Internal Use Capitalized Software Costs

 

Management evaluates the recoverability of the Company’s identifiable intangible assets and other long-lived assets when events or circumstances indicate a potential impairment exists, in accordance with the provisions of ASC 360-10-35-15 “Impairment or Disposal of Long-Lived Assets.” Events and circumstances considered by the Company in determining whether the carrying value of identifiable intangible assets and other long-lived assets may not be recoverable include but are not limited to significant changes in performance relative to expected operating results; significant changes in the use of the assets; significant negative industry or economic trends; and changes in the Company’s business strategy. In determining if impairment exists, the Company estimates the undiscounted cash flows to be generated from the use and ultimate disposition of these assets.

 

If impairment is indicated based on a comparison of the assets’ carrying values and the undiscounted cash flows, the impairment to be recognized is measured as the amount by which the carrying amount of the assets exceeds the fair value of the assets.

 

Inventory Valuation

 

Inventory is stated at the lower of cost or net realizable value (average cost). For items manufactured by third parties, cost is determined using the weighted average cost method (WAC). We write-down inventory when it has been determined that conditions exist that may not allow the inventory to be sold for at the intended price or the inventory is determined to be obsolete based on assumption about future demand and market conditions. The charge related to inventory write-downs is recorded as cost of goods sold. We evaluate inventory at least annually and at other times during the year. We have incurred and may in the future incur charges to write-down inventory.

 

Internal Use Software Development Costs

 

We capitalize certain internal use software development costs associated with creating and enhancing internally developed software related to our technology infrastructure. These costs include personnel and related employee benefits expenses for employees who are directly associated with and who devote time to software projects, and external direct costs of materials and services consumed in developing or obtaining the software. Software development costs that do not meet the qualification for capitalization, as further discussed below, are expensed as incurred and recorded in general and administrative expenses in the consolidated results of operations.

 

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Revenue from Contracts with Customers

 

We account for revenue earned from contracts with customers under ASC 606, Revenue from Contracts with Customers (“ASC 606”), and ASC 842, Leases (“ASC 842”). The core principle of ASC 606 is that a company should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services. The following five steps are applied to achieve that core principle:

 

● Step 1: Identify the contract with the customer.

● Step 2: Identify the performance obligations in the contract.

● Step 3: Determine the transaction price.

● Step 4: Allocate the transaction price to the performance obligations in the contract.

● Step 5: Recognize revenue when, or as, the company satisfies a performance obligation.

 

Stock-Based Compensation

 

The Company accounts for our stock-based compensation under ASC 718 “Compensation – Stock Compensation” using the fair value-based method. Under this method, compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period. This guidance establishes standards for the accounting for transactions in which an entity exchanges its equity instruments for goods or services. It also addresses transactions in which an entity incurs liabilities in exchange for goods or services that are based on the fair value of the entity’s equity instruments or that may be settled by the issuance of those equity instruments.

 

The Company uses the fair value method for equity instruments granted to non-employees and use the Black-Scholes model for measuring the fair value of options.

 

The fair value of stock-based compensation is determined as of the date of the grant or the date at which the performance of the services is completed (measurement date) and is recognized over the vesting periods.

 

Stock Warrants

 

In connection with certain financing (debt or equity), consulting and collaboration arrangements, the Company may issue warrants to purchase shares of its common stock. The outstanding warrants are standalone instruments that are not puttable or mandatorily redeemable by the holder and are classified as equity awards. The Company measures the fair value of warrants issued for compensation using the Black-Scholes option pricing model as of the measurement date. However, for warrants issued that meet the definition of a derivative liability, fair value is determined based upon the use of a binomial pricing model.

 

Warrants issued in conjunction with the issuance of common stock are initially recorded at fair value as a reduction in additional paid-in capital of the common stock issued. All other warrants (for services) are recorded at fair value and expensed over the requisite service period or at the date of issuance if there is not a service period.

 

Recent Accounting Pronouncements

 

In the normal course of business, we evaluate all new accounting pronouncements issued by the Financial Accounting Standards Board, SEC, or other authoritative accounting bodies to determine the potential impact they may have on our Consolidated Financial Statements. Refer to Note 2 - Summary of Significant Accounting Policies of the Notes to Consolidated Financial Statements.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Not applicable.

 

ITEM 4. CONTROLS AND PROCEDURES

 

Evaluation of disclosure controls and procedures

 

Under the PCAOB standards, a control deficiency exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit the attention by those responsible for oversight of the Company’s financial reporting. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis.

 

Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) and Rule 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended (Exchange Act). Our management has determined that, as of June 30, 2022, the Company’s disclosure controls are effective, but the Company lacks segregation of duties similar to other companies our size.

 

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PART II - OTHER INFORMATION

 

ITEM 1: LEGAL PROCEEDINGS

 

From time to time, we may be engaged in various lawsuits and legal proceedings in the ordinary course of our business. Except as described below, we are currently not aware of any legal proceedings the ultimate outcome of which, in our judgment based on information currently available, would have a material adverse effect on our business, financial condition or results of operations.

 

The following is a summary of threatened, pending, asserted or un-asserted claims against us or any of our wholly owned subsidiaries for which there have been material developments since December 31, 2021.

 

  (1)

Juno Financial v. AATAC and Surge Holdings Inc. AND Surge Holdings Inc. v. AATAC; Circuit Court of Hillsborough County, Florida, Case # 20-CA-2712 DIV A: Breach of Contract, Account Stated and Open Account claims against Surge by a factoring company. Surge has filed a cross-complaint against defendant AATAC for Breach of Contract, Account Stated, Open Account and Common Law Indemnity. The case remains in discovery but has been inactive for some time. Following analysis by our litigation counsel stating that there is a good defense, management has decided that a reserve is not necessary. The case remains on the docket and has no court dates set at this time.
     
   (2)

Blue Skies Connections, LLC, and True Wireless, Inc. v. SurgePays, Inc., et. al.: In the District Court of Oklahoma County, OK, CJ-2021-5327, filed on December 13, 2021. Plaintiffs petition alleges breach of a Stock Purchase Agreement by SurgePays, SurgePhone Wireless, LLC, and Kevin Brian Cox, and makes other allegations related to SurgePays’ consulting work with Jonathan Coffman, a True Wireless employee. Blue Skies believes the Defendants are in violation of their non-competition and non-solicitation agreements related to the sale of True Wireless from SurgePays to Blue Skies. Oklahoma state law does not recognize non-compete agreements and non-solicitation agreements in the manner alleged by Plaintiffs, as such we believe SurgePays, SurgePhone, and Cox have a strong defense against the claims asserted by Blue Skies and True Wireless. The matter continues in the discovery process. Mr. Coffman is no longer working for True Wireless. An attempt at mediation in July, 2022 did not achieve a settlement. The petition requests injunctive relief, general damages, punitive damages, attorney fees and costs for alleged breach of contract, tortious interference with a business relationship, and fraud. Plaintiffs have made a written demand for damages and the parties continue to discuss a potential resolution. This matter is an anti-competitive attempt by Blue Skies and True Wireless to damage SurgePays, SurgePhone, and Cox. Written discovery is winding down and depositions began in the third quarter of 2023 and are expected to continue into the fourth quarter of 2023. The case is set for trial in April 2024.

 

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  (3) Robert Aliotta and Steve Vasquesz, on behalf of themselves and others similarly situated v. SurgePays, Inc. d/b/a Surge Logics, filed January 4, 2023, in the U.S. District Court for the Northern District of Illinois, Case No. 1:23-cv-00042. Plaintiffs allege violations of the Telephone Consumer Protection Act (TCPA) and the Florida Telephone Solicitations Act (FTSA) based on telephone solicitations allegedly made by or on behalf of SurgePays, Inc. Plaintiffs seek damages for themselves and seek certification of a class action on behalf of others similarly situated. Defendants intend to vigorously defend the action however most similar cases are eventually resolved by an out-of-court settlement. At this time, it is impossible to estimate the amount or range of potential loss, but similar matters are usually settled for $100,000.00 or less. SurgePays, Inc has been removed from the case following a Motion to Dismiss and LogicsIQ, Inc. has been named as the defendant. The case remains in the pleadings stage.
     
  (4) SurgePays, Inc. et al. v. Fina et al., Case No. CJ-2022-2782, District Court of Oklahoma County, Oklahoma. Plaintiffs SurgePays, Inc. and Kevin Brian Cox initiated this case against its former officer Mike Fina, his companies Blue Skies Connections, LLC, True Wireless, Inc., Government Consulting Solutions, Inc., Mussell Communications LLC, and others. This case also arises from the June 2021 transaction by which SurgePays sold True Wireless to Blue Skies. During the litigation of CJ-2021-5327 described above, SurgePays learned information that showed Mike Fina breached his duties owed to True Wireless during his employment and consulting work for True Wireless prior to SurgePays’ sale of True Wireless to Blue Skies. SurgePays alleges that Mike Fina conspired with the other defendants to damage True Wireless thereby harming the value of the company and causing its eventual sale at a greatly reduced price. SurgePays asserts claims for (i) breach of contract; (ii) breach of fiduciary duty; (iii) fraud; (iv) tortious interference; and (v) unjust enrichment. At this stage, no defendant has asserted a counter-claim against SurgePays.
     
    SurgePays filed a Second Amended Petition on January 27, 2023. Defendants Fina, Blue Skies, True Wireless, and Government Consulting Solutions filed a Motion to Dismiss on March 10, 2023. On June 29, 2023, the Court granted the Motion to Dismiss, ruling the claims asserted are “derivative” and could only be asserted by the True Wireless entity now owed by Blue Skies. The parties could not reach agreement on an Order memorializing the Court’s ruling, and the Court has set the matter for hearing on November 16, 2023. The Court rejected Defendant Misty Garrett’s untimely request to join in the Motion to Dismiss, and Defendants Misty Garrett, Rob Rowlen, and Terracom, LLC remain as defendants in the case. It is SurgePays’ present intent to vigorously appeal the Court’s dismissal of Fina, Blue Skies, True Wireless, and Government Consulting Solutions, and to continue prosecuting the case against the other Defendants. At this early stage, no attempts at settlement have been made.

 

(5) In the Circuit Court of Tennessee for the 30th Judicial District at Memphis, Docket # CT-3219-23. On August 8, 2023, a complaint was filed by SurgePays for breach of a promissory note by Blue Skies Connections, LLC. The note at issue is dated June 14, 2021, and requires Blue Skies Connections to repay the principal sum of $176,850.56, by monthly payments of $7,461.37 commencing on June 1, 2023. Blue Skies Connections has failed to make any payments due under the terms of the note, and this breach entitles SurgePays to demand payment of the entire amount of the note together with all accrued interest. Service of the Complaint on Blue Skies Connections was achieved on September 15, 2023, and the responsive pleading from Blue Skies Connections was due on or before October 16, 2023.

 

ITEM 1A: RISK FACTORS

 

Not applicable.

 

ITEM 2: UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

ITEM 3: DEFAULTS UPON SENIOR SECURITIES.

 

None

 

ITEM 4: MINE SAFETY DISCLOSURES.

 

Not applicable

 

ITEM 5: OTHER INFORMATION.

 

On November 11, 2023, the Company entered into an employment agreement with Mr. Anthony Evers (the “Employment Agreement”). The Employment Agreement will expire on December 31, 2025. Pursuant to the Employment Agreement, Mr. Evers will earn $475,000 per year retroactively for the fiscal year ended 2023, $489,250 per year for the fiscal year ended 2024 and $503,928 per year for the fiscal year ended 2025. In addition, Mr. Evers shall receive a $510,000 cash bonus for his work during the calendar year 2023 and shall be eligible to receive a discretionary annual bonus based on his achievement of performance objectives as mutually agreed between Mr. Evers and the Board. The Employment Agreement further provides that Mr. Evers is entitled to participate in any employee benefit plans that the Company has adopted or may adopt and the Company granted Mr. Evers 600,000 restricted share awards, which shall vest as to 200,000 on December 31, 2023, December 31, 2024 and December 31, 2025, respectively.

 

The Employment Agreement is terminable for “Cause” (as defined in the Employment Agreement) or without “Cause” by the Company or voluntarily by Mr. Evers. Upon termination without “Cause” (other than by reason of death or disability) or resignation for “Constructive Termination”, Mr. Evers will be entitled to receive an amount equal to the balance of his base salary he would have earned over the term of the agreement or one years’ base salary and reimbursement for group health and dental insurance for one year following termination. Any outstanding unvested securities owned by Mr. Evers on the termination date will vest (or terminate) in accordance with the terms of such grant.

 

The Employment Agreement is qualified in its entirety by reference to the text of the Employment Agreement, a copy of which is attached hereto as Exhibit 10.2. The Employment Agreement contains standard covenants related to confidentiality, non-solicitation and non-disparagement.

 

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ITEM 6: EXHIBITS

 

Exhibit    
Number   Exhibit Description
10.1*   Form of Employment Agreement with Anthony Evers
31.1*   Certification pursuant to 18 U.S.C. Section 1350 Section 302 of the Sarbanes-Oxley Act of 2002 - Chief Executive Officer
31.2*   Certification pursuant to 18 U.S.C. Section 1350 Section 302 of the Sarbanes-Oxley Act of 2002 - Chief Financial Officer
32.1**   Certification pursuant to 18 U.S.C. Section 1350 Section 906 of the Sarbanes-Oxley Act of 2002 - Chief Executive Officer
32.2**   Certification pursuant to 18 U.S.C. Section 1350 Section 906 of the Sarbanes-Oxley Act of 2002 - Chief Financial Officer
101.INS*   Inline XBRL Instance Document
101.SCH*   Inline XBRL Taxonomy Extension Schema Document
101.CAL*   Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*   Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*   Inline XBRL Taxonomy Extension Label Linkbase Document
101.PRE*   Inline XBRL Taxonomy Extension Presentation Linkbase Document
104*   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

+ Management contracts or compensation plans or arrangements in which directors or executive officers are eligible to participate.

 

*Filed herewith.

 

** Furnished herewith

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  SURGEPAYS, INC.
Date: November 14, 2023    
  By: /s/ Kevin Brian Cox
    Kevin Brian Cox
   

Chief Executive Officer

(Principal Executive Officer)

 

Date: November 14, 2023 /s/ Anthony Evers
  Anthony Evers
  Chief Financial Officer
  (Principal Financial and Accounting Officer)

 

71

 

EX-10.1 2 ex10-1.htm

 

Exhibit 10.1

 

EMPLOYMENT AGREEMENT

 

This Employment Agreement (the “Agreement”) is made and entered into as of November 11, 2023 (the “Effective Date”), by and between SurgePays, Inc., a corporation incorporated under the laws of the State of Nevada with a principal place of business at 3124 Brother Blvd., Suite 104, Bartlett, Tennessee 38133 (the “Company”), and Anthony Evers, an individual (“Executive”).

 

RECITALS

 

A. Company has employed Executive since on or about March 1, 2020;

 

B. Company desires to offer continued employment to Executive and Executive desires to continue to be employed by Company;

 

C. Company and Executive agree to enter into an Employment Agreement providing for the term set forth in Article I below, on the terms and conditions herein provided; and

 

D. The Employment Agreement entered into by Executive and the Company on August 8, 2022 is hereby cancelled and superseded by this Agreement and, as of the Effective Date, is of no further force or effect.

 

NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement the parties hereto agree as follows:

 

ARTICLE I

 

Term of Employment

 

Subject to the provisions of Article V, and upon the terms and subject to the conditions set forth herein, the Company will employ Executive under the terms of this Agreement for the period beginning on the Effective Date through and including December 31, 2025 (the “Initial Term”). The Initial Term shall be automatically renewed for successive consecutive one (1) year periods, (each, a “Renewal Term” and the Initial Term and any Renewal Term are collectively referred to as the “term of employment”) thereafter, unless either party sends written notice to the other party, not more than 270 days and not less than 90 days before the end of the then-existing Initial Term or Renewal Term, of such party’s desire to terminate the Agreement at the end of the then-existing Initial Term or Renewal Term, in which case this Agreement will terminate at the end of the then-existing Initial Term or Renewal Term. Executive will serve the Company during the term of employment.

 

ARTICLE II

 

Duties

 

2.01 Duties and Office. During the term of employment, Executive will: (a) promote the interests, within the scope of his duties, of the Company, and devote his full working time and efforts to the Company’s business and affairs; (b) serve as the Chief Financial Officer of the Company; and (c) perform the duties and services consistent with the title and function of such office.

 

 

 

2.02 Outside Activities. Notwithstanding anything contained in clause 2.01 above to the contrary, nothing contained herein or under law shall be construed as preventing Executive from (a) investing Executive’s personal assets in such form or manner as will not require any services on the part of Executive in the operation or the affairs of the companies in which such investments are made and in which his participation is solely that of an investor; (b) engaging (whether or not during normal business hours) in any other professional, civic, or philanthropic activities, provided that Executive’s engagement does not result in a violation of his covenants under this Section or Article VI hereof; or (c) accepting appointments to the boards of directors of other companies provided that the Board of Directors of the Company (the “Board”) reasonably approves of such appointments and Executive’s performance of his duties on such boards does not result in a violation of his covenants under this Section or Article VI hereof.

 

ARTICLE III

 

Base Salary, Bonus, Restrict Stock Unit Grant

 

3.01 Base Salary. Effective retroactive to January 1, 2023, the Company will compensate Executive for the duties performed by him hereunder by payment of a base salary at the rate of Four Hundred Seventy-Five Thousand Dollars ($475,000) per annum (the “Base Salary”). Effective January 1, 2024, the Base Salary will increase to Four Hundred Eighty-Nine Thousand Two Hundred Fifty Dollars ($489,250). Effective January 1, 2025, the Base Salary will increase to Five Hundred Three Thousand Nine Hundred Twenty-Eight Dollars ($503,928.00). Base Salary will be payable in equal semi-monthly installments, subject to customary withholding for federal, state, and local taxes and other normal and customary withholding items. For each additional Renewal Term, the salary will be three (3) percent increase over the previous year’s salary.

 

3.02 Annual Cash Bonus. Executive’s annual cash bonus for his work in calendar year 2023 shall be Five Hundred Ten Thousand Dollars ($510,000). Executive’s annual cash bonus for future years shall be based upon criteria determined by the Company’s Board of Directors (“Board”) and its compensation committee in their reasonable discretion, in consultation with Executive, provided that, if such criteria is not communicated to Executive before March 15 of a given calendar year for such calendar year, Executive’s contractual claim for such respective bonus shall be at least equal to the previous years’ bonus received. The annual cash bonus shall be paid no later than March 15 of each year.

 

2

 

3.03 Restricted Share Award Grant. On the Effective Date, the Company shall grant Executive 600,000 (Six Hundred Thousand) Restricted Share Awards (“RSAs”) (the “RSA Grant”) pursuant to the Surgepays, Inc. 2022 Omnibus Securities and Incentive Plan (the “Plan”). The RSA Grant shall vest as to 200,000 (two hundred thousand) RSAs on December 31, 2023, December 31, 2024, and December 31, 2025. The RSA Grant shall be subject to the terms of the Plan and any award agreement the Plan requires as a condition of the RSA Grant. The RSA Grant supersedes all prior equity grants to Executive. Accordingly, no further vesting of any additional shares or options under any prior equity or option grant to Executive shall occur and Executive hereby waives any rights to any such further vesting, except for the 5,101 stock options which remain unvested as of September 30, 2023. For the avoidance of doubt, it is expressly stated that the Executive shall retain all ownership of, and rights to, any equity or option grants that have been vested prior to the Effective Date. Notwithstanding the foregoing, the Restricted Shares Awards (RSA) shall immediately vest, in full, upon the occurrence of any of the following events: (i) the Executive’s death, (ii) the Executive’s Total Disability (as defined in the Employment Agreement), (iii) Executive’s termination without cause and (iv) a Change of Control (as defined in the Employment Agreement) of the Company; provided, however, in each case, that the Executive continues to be employed by the Company on the date of the occurrence of such event. The Company will fund the expected Federal and State withholding requirements based on the vested award amount through the sale of a portion of the RSA Grant or some other mechanism to fund the expected tax liability.

 

ARTICLE IV

 

Reimbursement and Employment Benefits

 

4.01 Health and Other Medical. Executive shall be eligible to participate in all health, medical, dental, and life insurance employee benefits as are available from time to time to other key executive employees (and their families) of the Company, including a Life Insurance Plan, Medical and Dental Insurance Plan, and a Long-Term Disability Plan (the “Insurance Plans”). For the term of this agreement, the Company shall pay all premiums with respect to such Insurance Plans, provided, however, that if federal nondiscrimination rules prohibit payment of Executive’s full health insurance premiums, the Company shall pay only the same portion of Executive’s health care premiums as are consistent with such rules. The Company may, in its sole discretion, amend, modify, or terminate, any Insurance Plan at any time in accordance with applicable law.

 

4.02 Vacation. Executive shall be entitled to Four (4) weeks of vacation and five (5) personal days per year, to be taken in such amounts and at such times as shall be mutually convenient for Executive and the Company. Any time not taken by Executive in one year shall be carried forward to subsequent years. If all such vacation and personal time to which Executive is entitled is not taken by Executive before the termination of this Agreement, Executive shall be entitled to be reimbursed upon termination (for any reason) for such lost time in accordance with the Base then in effect.

 

4.03 Performance-Enhancing Items. Executive shall be entitled to receive from the Company (a) a car allowance up to five hundred dollars ($500.00) per month, and (b) reimbursement by the Company for home office expenses up to six hundred sixty-seven dollars ($667.00) per month, including, without limitation, the purchase and maintenance of a home computer with linkup facilities to the Company, a home facsimile, printer and scanner, interconnection of two telephone or cable connections to the Internet, laptop computer, and portable mobile phone, together with any charges for the use thereof.

 

3

 

4.04 Reimbursable Expenses. The Company shall in accordance with its standard policies in effect from time to time reimburse, Executive for all reasonable out-of-pocket expenses actually incurred by him in the conduct of the business of the Company including business class air travel for flights, quality hotels and rental cars, entertainment and similar executive expenditures, provided that Executive submits all substantiation of such expenses to the Company on a timely basis in accordance with such standard policies.

 

4.05 Savings Plan. Executive will be eligible to enroll, participate, and be immediately vested, in (to the extent legally possible and in accordance with existing Company benefit plans), all Company savings and retirement plans, including any 401(k) plans.

 

4.06 Life Insurance. The Company shall reimburse Executive for all premiums paid by Executive for term life insurance on his own life, provided that such life insurance proceeds do not exceed two hundred percent (200%) of Executive’s previous year’s Base Salary.

 

4.07 Directors and Officers Liability Insurance. The Company will provide liability insurance coverage protecting Executive and his estate, to the extent permitted by law, against suits by fellow employees, shareholders, and third parties, and criminal and regulatory investigations, arising out of any alleged act or omission occurring within the course and scope of Executive’s employment with the Company. Such insurance will be in an amount not less than $15,000,000 (Fifteen Million Dollars) in the aggregate.

 

ARTICLE V

 

Termination

 

5.01 Automatic. This Agreement shall be automatically terminated upon the first to occur of the following (a) the Company’s termination pursuant to section 5.02, (b) the Executive’s termination pursuant to section 5.03 or (c) the Executive’s death.

 

5.02 By the Company. This Agreement (and Executive’s employment) may be terminated by the Company upon written notice to the Executive upon the first to occur of the following:

 

(a) Disability. Upon the Executive’s Disability (as defined herein). The term “Disability” shall mean the Executive cannot physically or mentally perform the essential functions of the position with or without reasonable accommodations for a period of six (6) consecutive months or more.

 

(b) Cause. Upon the Executive’s commission of Cause (as defined herein). The term “Cause” shall mean the following:

 

(i) Any material breach by Executive of any material provision of this Agreement (including without limitation Sections 6.01 and 6.02 hereof), upon written notice of same by the Company describing in detail the breach asserted and stating that it constitutes notice pursuant to this Section 5.02(b)(i), which breach, if capable of being cured, has not been cured within thirty (30) days after such notice;

 

(ii) Embezzlement by Executive of funds or property of the Company;

 

4

 

(iii) Fraud or willful misconduct on the part of Executive in the performance of his duties as an employee of the Company, or gross negligence on the part of Executive in the performance of his duties as an employee of the Company causing demonstrable and serious injury to the Company, provided that the Company has given written notice of such breach which notice describes in detail the breach asserted and stating that it constitutes notice pursuant to this Section 5.02(b)(iii), and which breach, if capable of being cured, has not been cured within thirty (30) days after such notice; or

 

(iv) A felony conviction of Executive under the laws of the United States or any state (except for any conviction based on a vicarious liability theory and not the actual conduct of the Executive).

 

In the event the Company has given written notice of Cause under Section 5.02(b)(i) or (iii), the Company may place Executive on paid leave during the 30-day cure period and such action shall not constitute Constructive Termination under Section 5.03(b) of this Agreement. Upon a termination for Cause, the Company shall pay Executive his Base and benefits including vacation pay through the date of termination of employment; and Executive shall receive no severance under this Agreement.

 

5.03 By the Executive.

 

(a) Constructive Termination. This Agreement may be terminated by the Executive upon written notice to the Company of a “Constructive Termination” (as defined herein) by the Company.

 

(b) Definition. The term “Constructive Termination” shall mean any of the following:

 

(i) Any material breach by the Company of any material provision of this Agreement, including, without limitation, the assignment to the Executive of duties materially inconsistent with his position specified in Section 2.01 hereof or any material breach by the Company of such Section;

 

(ii) A substantial and continued reduction in the level of support, services, staff, secretarial resources, office space, and accoutrements below that which is reasonably necessary for the performance of Executive’s duties hereunder, consistent with that of other key executive employees;

 

(iii) a reduction in the Executive’s Base Salary (but not including any diminution related to a broader compensation reduction that is not limited to any particular employee or executive); or

 

(iv) a material diminution in the Executive’s title, duties, or responsibilities from those in effect on the date hereof (it being understood that the Executive’s obligation to report to the Board and the Board’s exercise of its final authority over Company matters shall not give rise to any such claim of diminution).

 

5

 

No event shall constitute Constructive Termination unless the Executive has notified the Company in a writing specifically describing the event which constitutes Constructive Termination within 90 (ninety) days of the condition first arising and then only if the Company fails to cure such event within thirty (30) days after the Company’s receipt of such written notice and Executive resigns his employment with 45 days of when he gave the Company such written notice.

 

5.04 Consequences of Termination. Upon termination of Executive’s employment with the Company without Cause pursuant to Section 5.02(b), or Executive’s Constructive Termination pursuant to Section 5.03, the Executive shall be entitled to (a) a payment equal to the greater of: (i) the amount of Base Salary Executive would have earned over the balance of the term of this Agreement as of the termination date or (ii) one years’ Base Salary; and (b) reimbursement for group health and dental insurance premiums for the one year period immediately following the termination of Executive’s employment in the event Executive timely elects to continue such benefits under the Consolidated Omnibus Reconciliation Act or applicable state law (collectively, the “Severance”). If such termination without Cause or Constructive Termination occurs within twelve (12) months before or twelve (12) months after a “Change of Control,” as the Plan defines that term as of the Effective Date, the Severance shall include an additional six (6) months’ Base Salary. The Severance shall be paid in installments in accordance with the Company’s normal payroll practices over a 12-month period. As a condition to the Company’s obligation to pay said Severance, Executive shall execute a comprehensive general release of any and all claims that Executive may have against the Company (excluding any claims for the Company to pay or provide Accrued Obligations and Severance, claims for vested benefits, and claims indemnification) (“Release of Claims”) within twenty one (21) days of the effective date of termination of employment, and Executive shall not revoke said release in writing within seven (7) days of execution. The Release of Claims shall not be mutual and may include confidentiality and non-disparagement provisions. The Company shall begin paying Severance on the first regular pay date falling at least seven days after the release becomes effective and the first Severance installment shall include payments for all Severance Executive would have received had the Severance payments begun on the termination date.

 

ARTICLE VI

 

Covenants

 

6.01 Confidential Information. Executive shall treat as confidential and keep secret the affairs of the Company and shall not at any time during the term of employment or for a period of five years thereafter, without the prior written consent of the Company, divulge, furnish, or make known or accessible to, or use for the benefit of, anyone other than the Company and its subsidiaries and affiliates any information of a confidential nature relating in any way to the business of the Company or its subsidiaries or affiliates or their clients (“Confidential Information”) and obtained by him in the course of his employment hereunder. Provided, however, that Confidential Information of the Company shall not include any information known or available generally to the public (other than as a result of unauthorized disclosure by Executive).

 

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6.02 Permitted Disclosures. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Nothing in this Agreement prohibits or restricts Executive (or Executive’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before any Court, governmental entity, any other self-regulatory organization, or any other federal or state regulatory authority. Nothing in this Agreement in any way prohibits or is intended to restrict or impede, and shall not be interpreted or understood as restricting or impeding, Executive from reporting any good faith allegation of unlawful employment practices to any appropriate federal, state, or local government agency enforcing discrimination laws; reporting any good faith allegation of criminal conduct to any appropriate federal, state, or local official; participating in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws; making any truthful statements or disclosures required by law, regulation, or legal process.

 

6.03 Defend Trade Secrets Act. Notwithstanding any other provision of this Agreement, the Executive hereby is notified in accordance with the Defend Trade Secrets Act of 2016 that the Executive will not be held criminally or civilly liable under a federal or state law for the disclosure of a trade secret that is made in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret information in the court proceeding, provided that the Executive must file any document containing the trade secret under seal, and must not disclose the trade secret, except pursuant to court order.

 

6.04 Company Records. All records, papers, and documents kept or made by the Executive relating to the business of the Company or its subsidiaries or affiliates or their clients shall be and remain the property of the Company.

 

6.05 Non-solicitation. Following the termination of Executive’s employment hereunder for any reason except for those set forth in section 5.03 in which event this section is inapplicable, Executive shall not for a period of twelve (12) months from such termination, solicit any employee of the Company to leave such employ to enter the employ of Executive or of any person, firm, or Company with which Executive is then associated (except solicitation by general means such as newspapers). During Executive’s employment with the Company and for a period of 12 months after termination of Executive’s employment at any time and for any reason, except for those set forth in Section 5.03 in which event this section is inapplicable, Executive shall not, directly or indirectly, solicit any person who during any portion of the time of Executive’s employment or at the time of termination of Executive’s employment with the Company, was a client, customer, policyholder, vendor, consultant or agent of the Company to discontinue business, in whole or in part, with the Company. Executive further agrees that, during such time, if such a client, customer, policyholder, vendor, or consultant or agent contacts Executive about discontinuing business with the Company or moving that business elsewhere, Executive will inform such client, customer, policyholder, vendor, consultant or agent that he or she cannot discuss the matter further without the consent of the Company

 

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6.06. Noncompetition. Executive agrees as follows, except in the event of a termination pursuant to Section 5.03, in which event this section is inapplicable:

 

(a) Executive agrees that during the term of his employment with the Company, neither he nor any of his Affiliates (Executive’s Affiliates is defined as any legal entity in which Executive directly or indirectly owns at least a 25% interest or any entity or person which is under the control of the Executive) will directly or indirectly compete with the Company in any way in any business in which the Company or its Affiliates is engaged in, and that he will not act as an officer, director, employee, consultant, shareholder, lender, or agent of any entity which is engaged in any business of the same nature as, or in competition with the businesses in which the Company is now engaged or in which the Company becomes engaged during the term of employment; provided, however, that this Section shall not prohibit Executive or any of his Affiliates from purchasing or holding an aggregate equity interest of up to 10% in any publicly traded business in competition with the Company, so long as Executive and his Affiliates combined do not purchase or hold an aggregate equity interest of more than 10%. Furthermore, Executive agrees that during the term of employment, he will not accept any board of director seat or officer role or undertake any planning for the organization of any business activity competitive with the Company (without the approval of the Board of Directors) and Executive will not combine or conspire with any other Executives of the Company for the purpose of the organization of any such competitive business activity.

 

(b) In order to protect the Company against the unauthorized use or the disclosure of any confidential information of the Company presently known or hereinafter obtained by Executive during his employment under this Agreement, Executive agrees that for a period of twelve (12) months following the termination of this Agreement for any reason, neither Executive nor any of his Affiliates, shall, directly or indirectly, for itself or himself or on behalf of any other corporation, person, firm, partnership, association, or any other entity (whether as an individual, agent, servant, employee, employer, officer, director, shareholder, investor, principal, consultant or in any other capacity):

 

(i) engage or participate in any business, regardless of where situated, which engages in direct market competition with such businesses being conducted by the Company during the term of employment; or

 

(ii) assist or finance any person or entity in any manner or in any way inconsistent with the intents and purposes of this Agreement.

 

6.07. Non-disparagement. Executive agrees that at no time during his employment by the Company or thereafter, shall he make, or cause or assist any other person to make, any statement or other communication to any third party which impugns or attacks, or is otherwise critical of, the reputation, business or character of the Company or any of its respective directors, officers or Executives. In addition, the Company agrees that its Board of Director and executives will not disparage the Executive so long as the Executive separates from the Company in good standing and abides by all terms of this agreement and signed non-disclosure and non-compete agreements. Nothing contained herein shall be deemed to prevent the Executive from performing his duties hereunder, including but not limited to conducting candid, internal discussions. This paragraph shall not prohibit any person from testifying truthfully in response to a lawful subpoena.

 

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6.08 Severability. If at the time of enforcement of any provision of this Agreement, a court shall hold that the duration, scope, or area restriction of any provision hereof is unreasonable under circumstances now or then existing, the parties hereto agree that the maximum duration, scope, or area reasonable under the circumstances shall be substituted by the court for the stated duration, scope, or area.

 

6.09 Remedies. Executive acknowledges that any breach by him of the provisions of this Article VI of this Agreement shall cause irreparable harm to the Company and that a remedy at law for any breach or attempted breach of Article VI of this Agreement will be inadequate, and agrees that, notwithstanding Article VIII hereof, the Company shall be entitled to exercise all remedies available to it, including specific performance and injunctive and other equitable relief, in the case of any such breach or attempted breach.

 

6.10 Company Representation. The Company represents and warrants that this Agreement has been duly authorized, executed, and delivered on behalf of the Company and that this Agreement represents the legal, valid, and binding obligation of the Company and does not conflict with any other agreement binding on the Company.

 

ARTICLE VII

 

Assignment

 

7.01 Assignment. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company without relieving the Company of its obligations hereunder. Neither this Agreement nor any rights hereunder shall be assignable by Executive and any such purported assignment by him shall be void.

 

ARTICLE VIII

 

Entire Agreement

 

8.01 Entire Agreement. This Agreement constitutes the entire understanding between the Company and Executive concerning his employment by the Company or subsidiaries and supersedes any and all previous agreements between Executive and the Company or any of its affiliates or subsidiaries concerning such employment, including, without limitation, the Original Employment Agreement. Each party hereto shall pay its own costs and expenses (including legal fees) except as otherwise expressly provided herein incurred in connection with the preparation, negotiation, and execution of this Agreement. This Agreement may not be changed orally, but only in a written instrument signed by both parties hereto.

 

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ARTICLE IX

 

Applicable Law. Miscellaneous

 

9.01 Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee. All actions brought to interpret or enforce this Agreement shall be brought in courts of the State of Tennessee located in the Shelby County, Tennessee, or in the United States District Court for the Western District of Tennessee.

 

9.02 Attorneys’ Fees. In addition to all other rights and benefits under this Agreement, each party agrees to reimburse the other for, and indemnify and hold harmless such party against, all costs and expenses (including attorney’s fees) incurred by such party (whether or not during the term of this Agreement or otherwise), if and to the extent that such party prevails on or is otherwise successful on the merits with respect to any action, claim, or dispute relating in any manner to this Agreement or to any termination of this Agreement or in seeking to obtain or enforce any right or benefit provided by or claimed under this Agreement, taking into account the relative fault of each of the parties and any other relevant considerations.

 

9.03 Indemnity. The Company shall indemnify and hold harmless Executive to the full extent authorized or permitted by law with respect to any claim, liability, action, or proceeding instituted or threatened against or incurred by Executive or his legal representatives and arising in connection with Executive’s conduct or position at any time as a director, officer, employee, or agent of the Company or any subsidiary thereof. The Company shall not change, modify, alter, or in any way limit the existing indemnification and reimbursement provisions relating to and for the benefit of its directors and officers without the prior written consent of the Executive, including any modification or limitation of any directors and officers’ liability insurance policy.

 

9.04 No Waiver. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a continuing waiver or a waiver of any similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party hereto which are not set forth expressly in this Agreement.

 

9.05 Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

9.06 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile and .pdf signatures shall be considered originals for purposes of this Agreement.

 

9.07 Section Headings. The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

9.08 Internal Revenue Code § 409A. This Agreement shall at all times be administered and interpreted in a manner which is consistent with and complies with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the Department of Treasury regulations and other interpretive guidance issued thereunder, including any guidance or regulations that may be issued after the effective date of the Agreement (“Section 409A”). To the extent necessary to comply with Section 409A, the term “termination of employment” shall mean “separation from service” as defined in Section 409A. Notwithstanding anything in this Agreement to the contrary, if Executive is deemed by the Company at the time of Executive’s “separation from service” to be a “specified employee” for purposes of Section 409A, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A, such portion of Executive’s benefits shall not be provided to Executive prior to the earlier of (i) the expiration of the six-month period measured from the date of Executive’s separation from service with the Company or (ii) the date of Executive’s death. Upon the first business day following the expiration of the applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to Executive (or Executive’s estate or beneficiaries), and any remaining payments due to Executive under this Agreement shall be paid as otherwise provided herein.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date first above written.

 

  Surgepays, Inc.
     
  By:
    Kevin Brian Cox
    Chief Executive Officer
     
  Executive:
     
   
  Anthony Evers

 

11

 

EX-31.1 3 ex31-1.htm

 

Exhibit 31.1

 

SURGEPAYS, INC. FORM 10-Q

FOR THE QUARTER ENDED SEPTEMBER 30, 2023

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Kevin Brian Cox, Chief Executive Officer, certify that:

 

  1. I have reviewed this report on Form 10-Q of SurgePays, Inc. (the registrant);
     
  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
     
  3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
     
  4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-a15(f) and 15d-15(f) for the registrant and have:

 

  a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my supervision, to ensure that material information relating to the registrant, is made known to me by others, particularly during the period in which this report is being prepared;
     
  b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
     
  c. evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report my conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
     
  d. disclosed in this report any change in the registrant’s internal controls over financial reporting that occurred during the registrant’s current fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and;

 

  5. I have disclosed, based on my most recent evaluation, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions);

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal controls which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
     
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls.

 

November 14, 2023 /s/ Kevin Brian Cox
  Kevin Brian Cox
  Chief Executive Officer
  (Principal Executive Officer)

 

 

 

EX-31.2 4 ex31-2.htm

 

Exhibit 31.2

 

SURGEPAYS, INC. FORM 10-Q

FOR THE QUARTER ENDED SEPTEMBER 30, 2023

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Anthony Evers, Chief Financial Officer, certify that:

 

  1. I have reviewed this report on Form 10-Q of SurgePays, Inc. (the registrant);
     
  2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
     
  3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
     
  4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-a15(f) and 15d-15(f) for the registrant and have:

 

  a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my supervision, to ensure that material information relating to the registrant, is made known to me by others, particularly during the period in which this report is being prepared;
     
  b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
     
  c. evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report my conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
     
  d. disclosed in this report any change in the registrant’s internal controls over financial reporting that occurred during the registrant’s current fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and;

 

  5. I have disclosed, based on my most recent evaluation, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions);

 

  a. All significant deficiencies and material weaknesses in the design or operation of internal controls which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
     
  b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls.

 

November 14, 2023 /s/ Anthony Evers
  Anthony Evers
  Chief Financial Officer
  (Principal Financial and Accounting Officer)

 

 

 

EX-32.1 5 ex32-1.htm

 

Exhibit 32.1

 

SURGEPAYS, INC. FORM 10-Q

FOR THE QUARTER ENDED SEPTEMBER 30, 2023

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Kevin Brian Cox, certify that:

 

  1. I am the Chief Executive Officer of SurgePays, Inc.
     
  2. Attached to this certification is Form 10-Q for the quarter ended September 30, 2023, a periodic report (the “periodic report”) filed by the issuer with the Securities Exchange Commission pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934 (the “Exchange Act”), which contains financial statements.
     
  3. I hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that

 

  ● The periodic report containing the financial statements fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act, and
     
  ● The information in the periodic report fairly presents, in all material respects, the consolidated financial condition and results of operations of the issuer for the periods presented.

 

November 14, 2023 /s/ Kevin Brian Cox
  Kevin Brian Cox
  Chief Executive Officer
  (Principal Executive Officer)

 

 

 

 

EX-32.2 6 ex32-2.htm

 

Exhibit 32.2

 

SURGEPAYS, INC. FORM 10-Q

FOR THE QUARTER ENDED SEPTEMBER 30, 2023

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Anthony Evers, certify that

 

  1. I am the Chief Financial Officer of SurgePays, Inc.
     
  2. Attached to this certification is Form 10-Q for the quarter ended September 30, 2023, a periodic report (the “periodic report”) filed by the issuer with the Securities Exchange Commission pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934 (the “Exchange Act”), which contains financial statements.
     
  3. I hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that

 

  ● The periodic report containing the financial statements fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act, and
     
  ● The information in the periodic report fairly presents, in all material respects, the consolidated financial condition and results of operations of the issuer for the periods presented.

 

November 14, 2023 /s/ Anthony Evers
  Anthony Evers
  Chief Financial Officer
  (Principal Financial and Accounting Officer)