| STOCKHOLDERS’ (DEFICIT) EQUITY | NOTE
13 – STOCKHOLDERS’ (DEFICIT) EQUITY The
Company issued the following shares of common stock during the twelve-month period ended December 30, 2023: SCHEDULE
OF STOCKHOLDERS EQUITY
Number
of Fair
Value Fair
Value at Issuance
Common
Shares of
Shares (minimum
and maximum
Shares
issued to/for: Issued Issued per
share)
Equity raise 1,884,516 $ 4,113 $ 2.65 $ 2.65
Employees 177,305 561 $ 2.82 $ 2.82
Board and committee members 160,000 155 $ 3.02 $ 9.65
Warrants Exercised per inducement
letter 550,000 1,994 $ 0.83 $ 0.83
Shares issued in connection with debt – related party 200,000 128 $ 0.64 $ 0.64
2,971,821 $ 6,951 The
Company issued the following shares of common stock during the twelve-month period ended December 31, 2022:
Number
of Fair
Value Fair
Value at Issuance
Common
Shares of
Shares (minimum
and maximum
Shares
issued to/for: Issued Issued per
share)
Equity raise 657,858 $ 4,013 $ 6.10 $ 6.10
Board and committee members 63,000 201 3.02 9.65
Related party shares 100,000 257 2.57 2.57
Consultants 36,000 113 3.02 7.40
856,858 $ 4,584 The
Company’s authorized common stock consists of 250,000,000 0.00001 5,601,020 2,629,199 Increase
of Authorized Common Stock On
December 27, 2023, stockholders approved an amendment to our Charter to increase the number of authorized shares of common stock, par
value $ 0.00001 ,
from 200,000,000 to
250,000,000 and
to make a corresponding change to the number of authorized shares of capital stock We
previously had a total of 220,000,000 200,000,000 20,000,000 0.00001 200,000,000 250,000,000 220,000,000 270,000,000 July
2022 Private Placement On
July 1, 2022, we entered into a securities purchase agreement with certain institutional and accredited investors for the issuance and
sale of a private placement of 657,858 657,858 5.85 6.10 In
connection with the private placement, each investor entered into Warrant Amendment Agreements to amend the exercise prices of certain
existing warrants to purchase up to an aggregate of 657,858 18.50 38.00 5.85 Third
Amended and Restated Note Purchase Agreement On
October 27, 2022, the Company entered into the Third Amended and Restated Note Purchase Agreement with Jackson, which amended and restated
the Amended Note Purchase Agreement, dated October 26, 2020, as amended, and issued to Jackson the Jackson Notes, with a remaining outstanding
principal balance of approximately $ 9.0 In
connection with the amendment and restatement, the Company paid Jackson an amendment fee of $ 39 39 100,000 257 24,332 five year 3.06 15,093 60.00 3.06 29 On
June 30, 2023, the Company and Jackson entered into an amendment (“Amendment No. 1”) to the 2022 Jackson Note to amend the
interest payment dates of September 30, 2023, August 1, 2023, and September 1, 2023 to October 1, 2023, November 1, 2023 and December
1, 2023, respectively. Restricted
Shares The
Company has issued shares of restricted stock to employees and members of the Board under its 2015 Omnibus Incentive Plan, 2016
Omnibus Incentive Plan, 2020 Omnibus Plan and 2021 Omnibus Inventive Plan. Under these plans, the shares are restricted for a period
of three years from issuance. As of Fiscal 2023, the Company has issued a total of 228,208 1,392 511 SCHEDULE OF UNVESTED RESTRICTED SHARES ACTIVITY
Weighted
Average
Restricted
Shares Price
Per Share
Outstanding
at January 1, 2022 5,976 $ 50.00
Granted 63,000 3.20
Vested/adjustments (384 ) 88.80
Outstanding
at December 31, 2022 68,592 6.72
Granted 337,305 2.30
Vested/adjustments (177,689 ) 2.88
Balance
at December 30, 2023 228,208 $ 3.18 Series
A Preferred Stock – Related Party On
January 21, 2020, the Company converted the shares of Series A Preferred Stock awarded to Mr. Briand into 271 451 125 125 Warrants In
connection with the private placement consummated in July 2022 (the “July 2022 Private Placement”), on July 7, 2022, the
Company entered into warrant amendment agreements (the “Warrant Amendment Agreements”) with each of the nine existing participating
investors, which amended warrants to purchase up to 657,858 18.50 38.00 5.85 837 In
connection with the Third Amended and Restated Note Purchase Agreement, the Company (i) issued five year warrants to purchase up to an
aggregate of 24,332 3.06 October 27, 2027 15,093 60.00 3.06 29 On
September 1, 2023, the Company entered into an inducement offer letter agreement (the “Inducement Letter”) with a certain
holder (the “Holder”) of certain of its existing warrants to purchase up to an aggregate of 2,761,170 Pursuant
to the Inducement Letter, the Holder agreed to exercise for cash its Existing Warrants to purchase an aggregate of 2,761,170 0.83 5,522,340 The
closing of the transactions contemplated pursuant to the Inducement Letter occurred on September 6, 2023 (the “Closing
Date”). The Company received aggregate gross proceeds of approximately $ 2,292 50 50 The
Company issued to Wainwright or its designees warrants (the “September 2023 Placement Agent Warrants”) to purchase up to
207,088
shares of common stock. The September 2023 Placement
Agent Warrants have substantially the same terms as the September 2023 Warrants, except that the Placement Agent Warrants have an exercise
price equal to $ 1.0375
per share and are immediately exercisable on
or after the Stockholder Approval Date (as defined in the September 2023 Warrants) until the five year anniversary of the Stockholder
Approval Date. Transactions
involving the Company’s warrant issuances are summarized as follows: SCHEDULE
OF WARRANTS ACTIVITY
Weighted
Number
of Average
Shares Exercise
Price
Outstanding at January 1, 2022 972,495 26.88
Issued 1,404,478 5.83
Exercised — —
Expired or cancelled (673,285 ) 26.84
Outstanding at December 31, 2022 1,703,688 9.61
Issued 8,631,937 1.40
Exercised (2,761,170 ) 0.59
Expired or cancelled (876,654 ) 5.85
Balance at December 30, 2023 6,697,801 $ 3.48 The
following table summarizes warrants outstanding as of December 30, 2023: SCHEDULE OF WARRANTS OUTSTANDING
Weighted
Average
Number Remaining Weighted
Outstanding Contractual Average
Exercise
Price and
Exercisable Life
(years) Exercise
price
$ 3.06 3,750.00 6,697,801 3.41 $ 3.48 Incentive
Plans 2014
Equity Incentive Plan On
January 28, 2014, our Board adopted the 2014 Equity Incentive Plan (the “2014 Plan”.) Under the 2014 Plan, we may grant
options to employees, directors, senior management of the Company and, under certain circumstances, consultants. The purpose of the
2014 Plan is to retain the services of the group of persons eligible to receive option awards, to secure and retain the services of
new members of this group and to provide incentives for such persons to exert maximum efforts for the success of the Company and its
affiliates. A maximum of 5,000 January
28, 2024 5,000 2015
Omnibus Incentive Plan On
September 23, 2015, our Board adopted the 2015 Omnibus Incentive Plan (the “2015 Plan”.) This plan has not been approved
by our stockholders. Under the 2015 Plan, we may grant a variety of equity instruments to employees, directors, senior management of
the Company and, under certain circumstances, consultants. The purpose of the 2015 Plan is to retain the services of the group of persons
eligible to receive option awards, to secure and retain the services of new members of this group and to provide incentives for such
persons to exert maximum efforts for the success of the Company and its affiliates. The
2015 Plan provides for an aggregate of 9,000 The
Plan will have a term of ten years and no further Awards may be granted under the 2015 Plan after that date. As of December 30, 2023,
the Company had issued 9,000 2016
Omnibus Incentive Plan On
October 25, 2016, our Board adopted the 2016 Omnibus Incentive Plan (the “2016 Plan”) to, among other things, attract and
retain the best available personnel, to provide additional incentive to employees, directors and consultants and to promote the success
of the Company’s business. The 2016 Plan’s terms and conditions are similar to that of the 2015 Plan. On January 26, 2017,
our stockholders approved the 2016 Plan, pursuant to which 50,000 125,000 123,428 1,573 A
summary of option activity during Fiscal 2023 and Fiscal 2022 of the Company’s 2014 Equity Incentive Plan, 2015 Omnibus Incentive
Plan and the 2016 Omnibus Incentive Plan is presented below: SCHEDULE OF SHARE-BASED COMPENSATION, STOCK OPTIONS, ACTIVITY
Weighted
Average
Options Exercise
Price
Outstanding at January 1, 2022 1,302 $ 1,665.60
Granted 50,000 7.80
Exercised — —
Expired or cancelled — —
Outstanding at December 31, 2022 51,302 50.06
Granted — —
Exercised — —
Expired or cancelled — —
Balance at December 30, 2023 51,302 $ 50.06 During
Fiscal 2023 and Fiscal 2022, the Company recorded total share-based payment expense of $ 66 70 The
total future compensation cost related to options not yet amortized is $ 197 3.1 2019
Long-Term Incentive Plan In
January 2019, the Company’s Board approved the 2019 Long-Term Incentive Plan (the “2019 LTIP”). The
Board granted 6,084 Units
vest upon the following:
● 50
● 50 SUMMARY
OF RELATIONSHIP BETWEEN PERFORMANCE AND THE VESTING RATE
Average
2019 Price Vesting
Rate
<$ 480 0
>$ 480 Pro-rated
>=$ 720 Full
Vesting On
January 8, 2021, the Company issued 2,584 0 4 2020
Omnibus Incentive Plan On
June 30, 2020, the Board approved the 2020 Omnibus Incentive Plan (the “2020 Plan”) pursuant to which we may grant equity
incentive awards to key employees, key contractors, and non-employee directors of the Company. The 2020 Plan provides for the granting
of incentive stock options, nonqualified stock options, stock appreciation rights, restricted stock, restricted stock units, performance
awards, dividend equivalent rights, and other awards, which may be granted singly or in combination, and that may be paid in cash, shares
of our common stock, or a combination of cash and common stock. A total of 12,500 12,500 0 2021
Omnibus Incentive Plan On
October 14, 2021, the Company held its 2021 virtual annual meeting of stockholders. At the annual meeting, the Company’s stockholders
approved the 2021 Omnibus Incentive Plan, pursuant to which the Company may grant equity incentive awards to key employees, key contractors,
and non-employee directors of the Company. The Plan provides for the granting of incentive stock options, nonqualified stock options,
stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalent rights, and other awards,
which may be granted singly or in combination, and that may be paid in cash, shares of the Company’s common stock, or a combination
of cash and common stock. A total of 200,000 On
December 27, 2021, the Company held a special meeting of stockholders. At the special meeting, the Company’s stockholders approved
an amendment to the Company’s 2021 Omnibus Incentive Plan to increase the number of shares of common stock available for issuance
pursuant to awards under the 2021 Plan by an additional 300,000 500,000 As
of December 30, 2023, we had issued 148,727 shares and options to purchase shares of common
stock pursuant to the 2021 Plan, therefore leaving 351,273 shares remaining under the 2021
Plan. The 2021 Plan will terminate on June 30, 2031. On
December 27, 2023, the Stockholders’ approved an amendment to the 2021 Plan, to increase the
number of shares of common stock available for issuance pursuant to awards under the 2021 by an additional 1,560,000 2,060,000 Limited
Duration Stockholder Rights Agreement On
September 27, 2023, the board of directors (the “Board”) of the Company declared a dividend of one preferred share purchase
right (a “Right”) for each outstanding share of common stock and .3889 Rights for each outstanding share of Series H Preferred
Stock (collectively with the common stock, the “Voting Stock”). The dividend was paid on October 21, 2023 to the stockholders
of record at the close of business on October 21, 2023 (the “Record Date”). Each Right initially entitles the registered
holder to purchase from the Company one one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $ 0.00001 2.75 Until
the close of business on the earlier of (i) 10 business days following the first date of public announcement (which, for purposes of
this definition, shall include, without limitation, a report filed pursuant to Section 13(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) by the Company or an Acquiring Person (as defined below) that an Acquiring Person has become
such, or such other date, as determined by the Board, on which a Person has become an Acquiring Person, or (ii) 10 business days (or
such later date as may be determined by action of the Board prior to such time as any person or group of affiliated or associated persons
becomes an Acquiring Person) after the date of the commencement of, or the first public announcement of an intention to commence, a tender
or exchange offer the consummation of which would result in any person or group of affiliated or associated persons becoming an Acquiring
Person (the earlier of such dates being called the “Distribution Date”), (x) the Rights will be evidenced by the certificates
representing the Voting Stock registered in the names of the holders thereof (or by book entry shares in respect of such Voting Stock)
and not by separate Right Certificates (as defined below), and (y) the Rights will be transferable only in connection with the transfer
of Voting Stock. Until
the Distribution Date (or earlier expiration of the Rights), (i) new Voting Stock certificates issued after the Record Date upon transfer
or new issuances of Voting Stock will contain a legend incorporating the terms of the Rights Agreement by reference, and (ii) the surrender
for transfer of any certificates representing Voting Stock (or book entry shares of Voting Stock) outstanding as of the Record Date will
also constitute the transfer of the Rights associated with the shares of Voting Stock represented thereby. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to holders of record
of the Voting Stock as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the
Rights. Except
as otherwise provided in the Rights Agreement, the Rights are not exercisable until the Distribution Date. The Rights will expire on
the earliest of (i) October 2, 2026 or such later date as may be established by the Board prior to the expiration of the Rights, (ii)
the time at which the Rights are redeemed pursuant to the terms of the Rights Agreement, (iii) the closing of any merger or other acquisition
transaction involving the Company pursuant to an agreement of the type described in the Rights Agreement at which time the Rights are
terminated, or (iv) the time at which such Rights are exchanged pursuant to the terms of the Rights Agreement. The
Purchase Price payable, and the number of shares of Preferred Stock or other securities or property issuable, upon exercise of the Rights
is subject to adjustment from time to time, among others, (i) in the event of a stock dividend on, or a subdivision, combination or reclassification
of, the Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or securities convertible into Preferred Stock with a conversion price, less than the then-current market
price of the Preferred Stock, or (iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular periodic cash dividends or dividends payable in Preferred Stock) or of subscription rights or warrants (other than
those referred to above). The
number of outstanding Rights is subject to adjustment in the event of a stock dividend on any class or series of Voting Stock payable
in shares of a class or series of Voting Stock or subdivisions, consolidations or combinations of any class or series of Voting Stock
occurring, in any such case, prior to the Distribution Date. Shares
of Preferred Stock purchasable upon exercise of the Rights will not be redeemable. Each share of Preferred Stock will be entitled, when,
as and if declared, to a minimum preferential quarterly dividend payment of the greater of (a) $10.00 and (b) the sum of (1) 1,000 (subject
to adjustments for stock dividends, stock splits, or stock combinations) times the aggregate per share amount of all cash dividends,
plus (2) 1,000 (subject to adjustments for stock dividends, stock splits, or stock combinations) times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of common stock, or a subdivision
of the outstanding shares of common stock (by reclassification or otherwise), in each case declared on the common stock. In the event
of liquidation, dissolution or winding up of the Company, the holders of the Preferred Stock will be entitled to a minimum preferential
payment of the greater of (a) $10.00 per share (plus any accrued but unpaid dividends and distributions), and (b) an amount equal to
1,000 times (subject to adjustments for stock dividends, stock splits, or stock combinations) made per share amount of all cash and other
property to be distributed in respect of common stock. Each share of Preferred Stock will be initially entitled to 1,000 votes (subject
to adjustment for stock dividends, stock splits, or stock combinations). In addition to voting together with the holders of common stock
for the election of other directors of the Company, the holders of Preferred Stock, voting separately as a class to the exclusion of
the holders of common stock, shall be entitled at the meeting of stockholders (and at each subsequent annual meeting of stockholders),
unless all dividends in arrears on the Preferred Stock have been paid or declared and set apart for payment prior thereto, to vote for
the election of two directors of the Company. Holders of Preferred Stock shall otherwise have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with holders of common stock as set forth herein) for taking any
corporate action, other than as required by law. In
the event of any merger, consolidation, combination or other transaction in which outstanding shares of common stock are converted or
exchanged, each share of Preferred Stock will be entitled to receive 1,000 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for which each share of common stock is changed or exchanged. In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person (the first occurrence of such event,
a “Flip-In Event”), each holder of a Right, other than Rights beneficially owned by the Acquiring Person (which will thereupon
become void), will thereafter have the right to receive upon exercise of a Right that number of shares of common stock equal to the number
of shares of common stock obtained by dividing the Purchase Price (subject to adjustments) by 50% of the current per share market price
of the common stock on the date of the Flip-In Event. Except in certain situations, a person or group of affiliated or associated persons
becomes an “Acquiring Person” upon acquiring beneficial ownership of 10% (20% in the case of a Passive Investor (as defined
in the Rights Agreement)) or more in voting power of the shares of Voting Stock then outstanding, subject to certain exclusions. Under
the Rights Agreement, a “Passive Investor” is generally a person who or which has reported or is required to report beneficial
ownership of shares of Voting Stock on Schedule 13G under the Exchange Act. Certain synthetic interests in securities created by derivative
positions are treated under the Rights Agreement as beneficial ownership of the number of shares of Voting Stock equivalent to the economic
exposure created by the derivative security, to the extent actual shares of Voting Stock are directly or indirectly beneficially owned
by a counterparty to such derivative security. In
the event that, after a Flip-In Event, the Company is acquired in a merger or other business combination transaction or 50% or more of
its consolidated assets or earning power are sold, proper provisions will be made so that each holder of a Right (other than Rights beneficially
owned by an Acquiring Person which will have become void) will thereafter have the right to receive upon the exercise of a Right that
number of shares of common stock equal to the result obtained by dividing the Purchase Price (subject to adjustments) by 50% of the current
per share market price of the common stock of such person(s) (or its parent) with whom the Company has engaged in the foregoing transaction. At
any time after a Flip-In Event and prior to the acquisition by an Acquiring Person of 50% or more in voting power of the shares of Voting
Stock then outstanding, the Board may, at its option, exchange the Rights (other than Rights owned by such Acquiring Person which will
have become void), in whole or in part, for shares of common stock, at an exchange ratio of one share of common stock per Right. With
certain exceptions, no adjustment in the Purchase Price will be required unless such adjustment would require an increase or decrease
of at least 1% in such Purchase Price. No fractional shares of Preferred Stock or common stock will be issued (other than fractions of
Preferred Stock which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company,
be evidenced by depositary receipts), and in lieu thereof an adjustment in cash will be made based on the current market price of the
Preferred Stock or the common stock. At
any time prior to a Flip-In Event, the Board may redeem all but not less than the then outstanding Rights at a price of $ 0.01 For
so long as the Rights are then redeemable, the Company may, in its sole discretion, except with respect to the Redemption Price, supplement
or amend any provision in the Rights Agreement without the approval of any holders of the Rights. After the Rights are no longer redeemable,
the Company may, except with respect to the Redemption Price, supplement or amend the Rights Agreement without the approval of any holders
of Rights, provided that no such supplement or amendment may adversely affect the interests of holders of the Rights, cause the Rights
Agreement to become amendable contrary to the provisions of the Rights Agreement, or cause the Rights to again to become redeemable. Until
a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends. |
