NETWORK-1 SECURITY SOLUTIONS, INC.
Filed Pursuant to Rule 424(b)(3)
Registration No. 333-143710
PROSPECTUS SUPPLEMENT NO. 5
(To Prospectus dated May 4, 2009)
This is a prospectus supplement to our prospectus dated May 4, 2009 (the
"Prospectus") relating to the resale from time to time by selling stockholders
of up to 9,655,949 shares of our common stock, including shares issuable upon
exercise of outstanding warrants and options. On November 12, 2009, we filed
with the Securities and Exchange Commission a Quarterly Report on Form 10-Q. The
text of the Quarterly Report on Form 10-Q is attached to and a part of this
supplement.
This prospectus supplement should be read in conjunction with the Prospectus and
may not be delivered or utilized without the Prospectus. This prospectus
supplement is qualified by reference to the Prospectus, except to the extent
that the information provided by this prospectus supplement supersedes the
information contained in the Prospectus.
The securities offered by the Prospectus involve a high degree of risk. You
should carefully consider the "Risk Factors" referenced on page 5 of the
Prospectus in determining whether to purchase the common stock.
The date of this prospectus supplement is November 12, 2009.
================================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2009
[_] 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 1-14896
NETWORK-1 SECURITY SOLUTIONS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-3027591
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
445 PARK AVENUE, SUITE 1018, NEW YORK, NEW YORK 10022
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(Address of principal executive offices)
212-829-5770
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(Registrant's Telephone Number)
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 [X] No [_]
Indicate by check mark whether the registrant has submitted electronically and
posted on its corporate web site every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T(ss.223.405) of this
chapter) during the preceding 12 months (or 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, or a smaller reporting company. See
the definitions of "Large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [_] Accelerated filer [_]
(Do not check if a smaller reporting company)
Non-accelerated filer [_] Smaller reporting company [X]
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes [_] No [X]
The number of shares of Common Stock, $.01 par value per share, outstanding as
of November 12, 2009 was 24,135,557.
================================================================================
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED BALANCE SHEETS
(UNAUDITED)
NETWORK-1 SECURITY SOLUTIONS, INC.
INDEX
Page No.
PART I. FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
Condensed Balance Sheets as of September 30, 2009 (unaudited) and
December 31,2008................................................... 3
Condensed Statements of Operations for the three and nine months
ended June 30,2009 and 2008 (unaudited)............................ 4
Condensed Statements of Cash Flows for the nine months ended
September 30,2009 and 2008 (unaudited)............................. 5
Notes to Interim Unaudited Condensed Financial Statements.......... 6
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION...............................................14
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.........19
Item 4. CONTROLS AND PROCEDURES............................................20
PART II. OTHER INFORMATION
Item 1. Legal Proceedings..................................................20
Item 1A. Risk Factors.......................................................22
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds........22
Item 3. Defaults Upon Senior Securities....................................22
Item 4. Submission of Matters to a Vote of Security Holders................22
Item 5. Other Information..................................................22
Item 6. Exhibits...........................................................22
SIGNATURES ...................................................................23
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED BALANCE SHEETS
UNAUDITED
September 30, DECEMBER 31,
2009 2008
------------ ------------
(UNAUDITED)
ASSETS:
Current assets:
Cash and cash equivalents $ 3,450,000 $ 4,484,000
Royalty and Interest Receivable 121,000 78,000
Other current assets 11,000 71,000
------------ ------------
Total current assets 3,582,000 4,633,000
Security Deposits 6,000 6,000
Patents 93,000 100,000
------------ ------------
$ 3,681,000 $ 4,739,000
============ ============
LIABILITIES:
Current liabilities:
Accounts payable $ 128,000 $ 86,000
Accrued expenses and other current liabilities 70,000 251,000
------------ ------------
Total current liabilities 198,000 337,000
------------ ------------
Commitments and contingencies
STOCKHOLDERS' EQUITY
--------------------
Common stock - $0.01 par value; authorized 50,000,000 shares; 24,135,557 shares
issued and outstanding at September 30, 2009 and
December 31, 2008 241,000 241,000
Additional paid-in capital 55,853,000 55,056,000
Accumulated deficit (52,611,000) (50,895,000)
------------ ------------
3,483,000 4,402,000
------------ ------------
$ 3,681,000 $ 4,739,000
============ ============
See notes to condensed financial statements
3
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED STATEMENTS OF OPERATIONS
UNAUDITED
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------------ ------------------------------
2009 2008 2009 2008
------------ ------------ ------------ ------------
Royalty Revenue $ 141,000 $ 106,000 $ 655,000 $ 240,000
Cost of Revenue 4,000 5,000 69,000 12,000
------------ ------------ ------------ ------------
Gross Profit 137,000 101,000 586,000 228,000
------------ ------------ ------------ ------------
Operating expenses:
General and administrative 542,000 439,000 1,505,000 1,209,000
Non Cash Compensation 51,000 70,000 797,000 216,000
------------ ------------ ------------ ------------
Total Operating Expense $ 593,000 $ 509,000 2,302,000 1,425,000
------------ ------------ ------------ ------------
LOSS BEFORE INTEREST INCOME (456,000) (408,000) (1,716,000) (1,197,000)
Interest income (expense) - net (1,000) 25,000 0 93,000
------------ ------------ ------------ ------------
Net Loss $ (457,000) $ (383,000) $ (1,716,000) $ (1,104,000)
============ ============ ============ ============
LOSS PER COMMON SHARE: BASIC AND DILUTED $ (0.02) $ (0.02) $ (0.07) $ (.05)
============ ============ ============ ============
WEIGHTED AVERAGE SHARES: BASIC AND DILUTED 24,135,557 24,135,557 24,135,557 24,135,557
============ ============ ============ ============
See notes to condensed financial statements
4
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED STATEMENTS OF CASH FLOW
UNAUDITED
NINE MONTHS ENDED
SEPTEMBER 30,
------------------------------
2009 2008
------------ ------------
Cash flows from operating activities:
Net loss $ (1,716,000) $ (1,104,000)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization 7,000 5,000
Non Cash Compensation 797,000 216,000
Changes in:
Prepaid expenses and other current assets 17,000 18,000
Capitalized Patent Costs __ (32,000)
Accounts payable, accrued expenses and other
current liabilities (139,000) (243,000)
------------ ------------
Net cash used in operating activities (1,034,000) (1,140,000)
------------ ------------
Cash Flows from Investing Activities -- --
Cash Flows from Financing Activities -- --
NET INCREASES (DECREASE) IN CASH AND CASH EQUIVALENTS (1,034,000) (1,140,000)
Cash and cash equivalents, beginning of period 4,484,000 5,928,000
------------ ------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 3,450,000 $ 4,788,000
============ ============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the periods for:
Interest $ 2,000 $ 2,000
Taxes $ -- $ --
See notes to condensed financial statements
5
NOTE A - NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
[1] BASIS OF PRESENTATION:
The accompanying condensed financial statements as of September 30, 2009 and for
the three and nine month periods ended September 30, 2009 and September 30, 2008
are unaudited, but in the opinion of the management of Network-1 Security
Solutions, Inc. (the "Company") contain all adjustments consisting only of
normal recurring items which the Company considers necessary for the fair
presentation of the Company's financial position as of September 30, 2009, and
the results of its operations and its cash flows for the three and nine month
periods ended September 30, 2009 and September 30, 2008. The condensed financial
statements included herein have been prepared in accordance with the accounting
principles generally accepted in the United States of America for interim
financial information and the instructions to Form 10-Q. Accordingly, certain
information and footnote disclosures normally included in the financial
statements prepared in accordance with accounting principles generally accepted
in the United States of America have been omitted pursuant to such rules and
regulations, although management believes that the disclosures are adequate to
make the information presented not misleading. These financial statements should
be read in conjunction with the audited financial statements for the year ended
December 31, 2008 included in the Company's Annual Report on Form 10-K filed
with the Securities and Exchange Commission. The results of operations for the
nine months ended September 30, 2009 are not necessarily indicative of the
results of operations to be expected for the full year.
[2] BUSINESS:
(a) The principal business of the Company is the acquisition, development,
licensing and protection of its intellectual property. The Company presently
owns six patents (the "Patent Portfolio") covering various telecommunications
and data networking technologies including, among others, patents covering the
delivery of power over Ethernet cable for the purpose of remotely powering
network devices, and the transmission of audio, video and data over computer and
telephony networks. The Company's strategy is to pursue licensing and strategic
business alliances with companies in the industries that manufacture and sell
products that make use of the technologies underlying its patents as well as
with other users of the technology who benefit directly from the technology
including corporate, educational and governmental entities. To date, the
Company's efforts with respect to its Patent Portfolio have focused on licensing
its Remote Power Patent (U.S. Patent No. 6,218,930). As of September 30, 2009,
the Company had entered into 6 license agreements with respect to its Remote
Power Patent which, among others, included license agreements with D-Link (See
Note D[2]), Microsemi Corporation (See Note D[3]) and Netgear, Inc. (See Note
D[1]. The Company may seek to acquire additional patents in the future.
6
[2] BUSINESS: (CONTINUED)
(b) As reflected in the accompanying financial statements, the Company has
incurred substantial losses and has experienced net cash outflows from
operations for the year ended December 31, 2008 and the three and nine month
period ended September 30, 2009. For the year ended December 31, 2008 and the
three and nine month period ended September 30, 2009, the Company had revenue
$349,000, $141,000 and $655,000, respectively. The Company will continue to have
operating losses for the foreseeable future until it is successful in licensing
its patented technologies. The Company has been dependent upon equity financing
to fund its operations. The Company had cash and cash equivalents of $3,450,000
as of September 30, 2009. The Company believes its current cash position will
more likely than not be sufficient to satisfy the Company's operations and
capital requirements until at least December 31, 2010, although there can be no
assurance that such funds will not be expended prior thereto.
[3] STOCK-BASED COMPENSATION:
On January 2, 2008, the Company granted the following options: (i) a 5 year
option to purchase an aggregate of 150,000 shares of common stock, at an
exercise price of $1.45 per share, to its 3 outside directors, 75,000 shares of
which vested on grant and 75,000 shares vested over one year in equal monthly
installments, and (ii) a 5 year option to purchase 100,000 shares of common
stock, at an exercise price of $1.45 per share, granted to a consultant, which
vests over a 5 year period in equal monthly installments. During the nine month
period ended September 30, 2008, the Company recorded non-cash compensation
expense of $24,000 for these options based on the Black-Scholes option-pricing
model.
On February 15, 2008, the Company granted to another consultant a 5 year option
to purchase 50,000 shares of common stock, at an exercise price of $1.42 per
share, which option vested on a quarterly basis over a two year period. Also on
February 15, 2008, the Company granted to a new advisory board member an option
to purchase 17,500 shares of common stock, at an exercise price of $1.32 per
share, which option vested on a quarterly basis over a year period. The Company
recorded non-cash compensation expense of $18,000 for these options based on the
Black-Scholes option-pricing model for the nine month period ended September 30,
2008.
7
[3] STOCK-BASED COMPENSATION: (CONTINUED)
On February 28, 2008 the Company granted an additional 5 year option to its
Chairman and CEO to purchase 375,000 shares of common stock, at an exercise
price of $1.32 per share, pursuant to his employment agreement. These options
vested in equal quarterly amounts of 93,750 shares beginning March 31, 2008
through December 31, 2008. The Company recognized non-cash compensation expense
of $96,000 for these options during the nine months ended September, 2008. In
addition, during the nine month period ended September 30, 2009 the Company
recorded non-cash compensation expense of $12,000 for the vested portion of
options granted to a consultant prior to January 1, 2008.
On December 18, 2008, the Company granted a 5 year option to its Chief Financial
Officer to purchase 100,000 shares of common stock, at an exercise price of
$0.54 per share, pursuant to a new agreement pursuant to which the Chief
Financial Officer continued to provide services to the Company. The options
vested 40,000 shares on the date of grant and the balance of 60,000 shares in
equal quarterly amounts of 7,500 shares beginning March 31, 2009 through
December 31, 2010. The Company recorded non-cash compensation of $6,000 for the
vested portion of these options for the nine month period ended September 30,
2009.
On March 11, 2009, the Board of Directors of the Company approved adjustments to
the exercise prices and terms of certain of its outstanding options and warrants
as described below and as a result, the Company recorded non-cash compensation
expense of $541,000 for the three month period ended March 31, 2009:
(i) the exercise prices of certain outstanding compensatory options and
warrants issued to officers, directors, consultants and others to
purchase an aggregate of 5,029,945 shares of common stock were
adjusted to an exercise price of $0.68 per share (closing price of
the Company's common stock on March 11, 2009) including options and
warrants to purchase an aggregate of 4,031,195 shares held by the
Company's Chairman and Chief Executive Officer, and an affiliated
entity, options to purchase an aggregate of 150,000 shares held by
the Company's Chief Financial Officer, and options and warrants to
purchase an aggregate of 300,000 shares held by two directors of the
Company;
(ii) the exercise price of outstanding warrants to purchase an aggregate
of 473,750 shares of common stock (including warrants to purchase
187,500 shares owned by a principal stockholder of the Company),
issued as part of the Company's private placement completed in
December 2004/January 2005, which exercise price was scheduled to
increase to $2.00 per share on March 31, 2009 (from $1.75 per share)
adjusted to an exercise price of $1.75 for the remaining exercise
period of such warrants (May 21, 2010), subject to the adjustment
set forth in item (iv) below;
(iii) the exercise price of warrants to purchase an aggregate of 1,666,667
shares of common stock, (including warrants to purchase an aggregate
of 1,150,001
8
[3] STOCK-BASED COMPENSATION: (CONTINUED)
shares owned by three principal stockholders of the Company), at an
exercise price of $2.00 per share, which warrants were issued as
part of the Company's private placement completed in April 2007,
were adjusted to an exercise price of $1.75 per share for the
remaining exercise period of such warrants (April 16, 2012), subject
to the adjustments set forth in item (iv) below; and
(iv) in the event that any holders of the above referenced outstanding
warrants, issued as part of the Company's December 2004/January 2005
or the April 2007 private placements, exercise such warrants at
anytime up to and including December 31, 2009, the exercise price of
all such warrants shall adjust to $1.25 per share.
On June 8, 2009, as part of the terms of the Company's new employment agreement
with its Chairman and Chief Executive Officer, the Board of Directors of the
Company issued to the Company's Chairman and Chief Executive Officer a ten-year
option to purchase 750,000 shares of the Company's common stock at an exercise
price of $0.83 per share. The options vest in equal quarterly amounts of 62,500
shares beginning June 30, 2009 through March 31, 2012, subject to accelerated
vesting upon a change of control (See Note C). During the nine months ended
September 30, 2009 the Company recognized non-cash compensation expense of
$74,000 for these options based on the Black-Scholes option-pricing model.
In addition, on June 8, 2009, as part of the terms of the Company's new
employment agreement with its Chairman and Chief Executive Officer, the Board of
Directors extended the expiration dates for 5 years of options to purchase an
aggregate of 417,500 shares (which were to expire in 2009) issued to the
Company's Chairman and Chief Executive. The Company recorded non-cash
compensation of $132,000 relating to the aforementioned extension of such option
expiration dates.
The fair value of each Company option grant on the date of grant is estimated
using the Black-Scholes option-pricing model utilizing the following weighted
average assumptions:
NINE MONTHS ENDED SEPTEMBER 30,
--------------------------------
2009 2008
------------ -------------
Risk-free interest rates 2.54 - 2.95 2.73% - 3.28%
Expected option life in years 5 - 10 yrs. 5 yrs.
Expected stock price volatility 62.04% 37.32 - 39.35%
Expected dividend yield -0- -0-
[4] REVENUE RECOGNITION:
The Company recognizes revenue received from the licensing of its intellectual
property portfolio in accordance with Staff Accounting Bulletin No. 104,
"Revenue Recognition" ("SAB No. 104") and related authoritative pronouncements.
Revenue is recognized when (i) persuasive evidence of an
9
[4] REVENUE RECOGNITION: (CONTINUED)
arrangement exists, (ii) all obligations have been performed pursuant to the
terms of the license agreement, (iii) amounts are fixed or determinable and (iv)
collectibility of amounts is reasonably assured.
[5] LOSS PER SHARE:
Basic net loss per share is calculated by dividing the net loss by the weighted
average number of outstanding common shares during the period. Diluted per share
data includes the dilutive effects of options, warrants and convertible
securities. Potential shares of 12,868,082 and 12,041,537 at September 30, 2009
and 2008, respectively, are anti-dilutive, and are not included in the
calculation of diluted loss per share. Such potential common shares reflect
outstanding options and warrants.
[6] CASH EQUIVALENTS:
The Company places cash investments in high quality financial institutions
insured by the Federal Deposit Insurance Corporation ("FDIC"). At September 30,
2009, the Company maintained cash balance of $ -0- in excess of FDIC limits.
NOTE B - COMMITMENTS AND CONTINGENCIES
[1] Services Agreement:
On November 30, 2004, the Company entered into a master services agreement (the
"Agreement") with ThinkFire Services USA, Ltd. ("ThinkFire") pursuant to which
ThinkFire has been granted the exclusive worldwide rights (except for direct
efforts by the Company and related companies) to negotiate license agreements
for the Remote Power Patent with respect to certain designated licensees agreed
to between the parties. Either the Company or ThinkFire can terminate the
Agreement upon 60 days' notice for any reason or upon 30 days' notice in the
event of a material breach. The Company has agreed to pay ThinkFire a fee
ranging from 5% to 20% of the royalty payments received from license agreements
consummated by ThinkFire on its behalf after the Company recovers its litigation
related expenses.
[2] AMENDED PATENT PURCHASE AGREEMENT:
On January 18, 2005, the Company and Merlot Communications, Inc. ("Merlot")
amended the Patent Purchase Agreement originally entered into in November 2003
(the "Amendment") pursuant to which the Company paid an additional purchase
price of $500,000 to Merlot in consideration for the restructuring of future
contingent payments to Merlot from the licensing or sale of the Patents. The
Amendment provides for future contingent payments by the Company to Merlot of
$1.0 million upon achievement of $25 million of Net Royalties (as defined), an
additional $1.0 million upon achievement of $50 million of Net Royalties and an
additional $500,000 upon achievement of $62.5 million of Net Royalties from
licensing or sale of the patents acquired from Merlot. Certain then principal
stockholders of the Company and related parties were also principal stockholders
and directors of Merlot at the time of the original agreement in November 2003
and the Amendment.
10
[3] LEGAL FEES:
Dovel & Luner, LLP provides legal services to the Company with respect to the
litigation commenced in February 2008 against several major data networking
equipment manufacturers (See Note D[1]). The terms of the Company's agreement
with Dovel & Luner, LLP provide for legal fees of a maximum aggregate cash
payment of $1.5 million plus a contingency fee of up to 24% depending upon when
an outcome is achieved. During the nine months ended September 30, 2009, the
Company paid Dovel & Luner, LLP cash legal fees of $360,000 and contingency fees
of approximately $36,000.
With respect to the Company's litigation against D-Link, which was settled in
May 2007 (See Note D[2]), the Company utilized the services of Blank Rome, LLP
on a full contingency basis. In accordance with the Company's contingency fee
agreement with Blank Rome LLP, the Company will pay legal fees to Blank Rome LLP
equal to 25% of the royalty revenue received by the Company from its license
agreement with D-Link after the Company recovers its expenses related to the
litigation.
NOTE C - EMPLOYMENT ARRANGEMENTS AND OTHER AGREEMENTS
On June 8, 2009, the Company entered into a new Employment Agreement with Corey
M. Horowitz pursuant to which he continues to serve as Chairman and Chief
Executive Officer for a three year term at an annual base salary of $375,000
(retroactive to April 1, 2009) for the first year, increasing by 5% on each of
April 1, 2010 and April 1, 2011. He also receives a cash bonus of no less than
$150,000 on an annual calendar year basis (beginning with the year ended
December 31, 2009) no later than January 15 of the following year, for the three
year term of the agreement. In connection with the Agreement, Mr. Horowitz was
issued a ten (10) year option to purchase 750,000 shares of the Company's common
stock at an exercise price of 0.83 per share, which vests in equal quarterly
amounts of 62,500 shares beginning June 30, 2009 through March 31, 2012, subject
to acceleration upon a change of control. Mr. Horowitz shall forfeit the balance
of unvested shares of the option if his employment has been terminated "For
Cause" (as defined) by the Company or without Good Reason (as defined) by Mr.
Horowitz. In addition to the aforementioned option grant, the Company extended
for an additional five (5) years the expiration dates of all options (an
aggregate of 417,500 shares) expiring in the calendar year 2009 owned by Mr.
Horowitz.
Under the terms of the Agreement, Mr. Horowitz is also to receive additional
bonus compensation in an amount equal to 5% of the Company's royalties or other
payments (exclusive of proceeds from the sale of the Company's patents which is
covered below) with respect to the Company's Remote Power Patent and 12.5% of
the Company's royalties and other payments with respect to the Company's other
patents besides the Remote Power Patent (the "Additional Patents") (all before
deduction of payments to third parties including, but not limited to, legal fees
and expenses and third party license fees) actually received from licensing its
patented technologies (including patents owned as of the date of the Agreement
and acquired or licensed on an exclusive basis during the period in which Mr.
Horowitz continues to serve as an executive officer of the Company) (the
"Royalty Bonus Compensation"). In addition, during the term of his employment,
Mr. Horowitz shall also be entitled to additional bonus compensation equal to
(i) 5% of the gross proceeds from the sale of the Company's Remote Power Patent
and 12.5% of the gross proceeds from the sale of
11
NOTE C - EMPLOYMENT ARRANGEMENTS AND OTHER AGREEMENTS: (CONTINUED)
the Additional Patents, and (ii) 5% of the gross proceeds from the merger of the
Company with or into another entity. The Royalty Bonus Compensation shall
continue to be paid to Mr. Horowitz for the life of each of the Company's
patents with respect to licenses entered into with third parties during Mr.
Horowitz's term of employment or at anytime thereafter, whether Mr. Horowitz is
employed by the Company or not; provided, that, Mr. Horowitz's employment has
not been terminated by the Company "For Cause" (as defined) or terminated by Mr.
Horowitz without "Good Reason" (as defined). In the event that Mr. Horowitz's
employment is terminated by the Company "Other Than For Cause" (as defined) or
by Mr. Horowitz for "Good Reason" (as defined), Mr. Horowitz shall also be
entitled to (i) a lump sum severance payment of 12 months base salary, (ii) the
minimum annual bonus of $150,000 and (iii) accelerated vesting of all unvested
options and warrants. In connection with the Agreement, Mr. Horowitz has agreed
not to compete with the Company as follows: (i) during the term of the agreement
and for a period of 12 months thereafter if his employment is terminated "Other
Than For Cause" (as defined) provided he is paid his 12 month base salary
severance amount and (ii) for a period of two years from the termination date,
if terminated "For Cause" by the Company or "Without Good Reason" by Mr.
Horowitz.
NOTE D - LITIGATION
[1] In February 2008, the Company commenced litigation against several major
data networking equipment manufacturers in the United States District Court for
the Eastern District of Texas, Tyler Division, for infringement of the Company's
Remote Power Patent. The complaint named as defendants Cisco Systems, Inc.,
Cisco Linksys, LLC, Enterasys Networks, Inc., 3COM Corporation, Inc., Extreme
Networks, Inc., Foundry Networks, Inc., Netgear, Inc. and Adtran, Inc. The
Company seeks injunctive relief and monetary damages for infringement based upon
reasonable royalties as well as treble damages for the defendants continued
willful infringement of the Remote Power Patent. The Defendants, in their
answers to the complaint, asserted that they do not infringe any valid claim of
the Remote Power Patent, and further asserted that, based on several different
theories, the patent claims are invalid or unenforceable. In addition to these
defenses, the defendants also asserted counterclaims for, among other things,
non-infringement, invalidity, and unenforceability of the Remote Power Patent. A
Markman hearing, a hearing on claim construction of our Remote Power Patent, is
currently scheduled for December, 2009 and a trial date has been set for July,
2010. In the event that the court determines that the Remote Power Patent is not
valid or enforceable, and/or that the defendants do not infringe, any such
determination would have a material adverse effect on the Company.
In May 2009 the Company settled the above referenced litigation with respect to
Netgear, Inc. ("Netgear"). As part of the settlement and under the Company's
Special Licensing Program, Netgear entered into a license agreement with the
Company for the Remote Power Patent, effective April 1, 2009. Under the terms of
the license, Netgear licenses the Remote Power Patent from the Company for its
full term which expires in March 2020, and pays quarterly royalties (beginning
as of April 1, 2009) based on its sales of Power over Ethernet products,
including those PoE products which comply with the Institute of Electrical and
Electronic Engineers 802.3af and 802.3at Standards. Licensed products include
Netgear's Power over Ethernet enabled switches and wireless access points. The
royalty rates included in the license are 1.7% of the sales price of Power
Sourcing Equipment, which includes Ethernet switches, and 2% of the sales price
of Powered
12
NOTE D - LITIGATION: (CONTINUED)
Devices, which includes wireless access points. The royalty rates are subject to
adjustment, under certain circumstances, if the Company grants a license to
other licensees with lower royalty rates and Netgear is able to and agrees to
assume all material terms and conditions of such other license. In addition,
Netgear paid the Company $350,000 upon the signing of the license agreement.
[2] In August 2005, the Company commenced patent litigation against D-Link
Corporation and D-Link Systems, Incorporated (collectively "D-Link") in the
United States District Court for the Eastern District of Texas, Tyler division
(Civil Action No. 6:05W291), for infringement of the Company's Remote Power
Patent (the "D-Link Litigation"). The complaint sought, among other things, a
judgment that the Company's Remote Power Patent is enforceable and has been
infringed by the defendants. The Company also sought a permanent injunction
restraining the defendants from continued infringement, or active inducement of
infringement by others, of the Remote Power Patent.
In August 2007, the Company finalized the settlement of the D-Link Litigation
(see below). Under the terms of the settlement, D-Link entered into a license
agreement for the Company's Remote Power Patent the terms of which include
monthly royalty payments of 3.25% (subject to adjustment as noted below) of the
net sales of D-Link Power over Ethernet products, including those products which
comply with the IEEE 802.3af and 802.3at Standards, for the full term of the
Remote Power Patent, which expires in March 2020. In addition, D-Link paid the
Company $100,000 upon signing of the Settlement Agreement. The royalty rate is
subject to adjustment to a rate consistent with other similarly situated
licensees of the Remote Power Patent based on units of shipments of licensed
products. In June 2009, based upon several licenses issued to third parties
under the Company's Special Licensing Program, the Company agreed with D-Link to
adjust the royalty rate to 1.7% of the sales price for Power Servicing Equipment
(which includes Ethernet switches) and 2.0% of the sales price for Powered
Devices (which includes wireless access points).
[3] On November 16, 2005 the Company entered into a Settlement Agreement with
PowerDsine, Inc and PowerDsine Ltd. which dismissed, with prejudice, a civil
action brought by PowerDsine in the United States District Court for the
Southern District of New York that sought a declaratory judgment that U.S.
Patent No. 6,218,930 (the "Remote Power Patent") owned by the Company was
invalid and not infringed by PowerDsine and/or its customers. Under the terms of
the Settlement Agreement, the Company agreed that it will not initiate
litigation against PowerDsine for its sale of Power over Ethernet (PoE)
integrated circuits. In addition, the Company agreed that it will not seek
damages for infringement from customers that incorporate PowerDsine integrated
circuit products in PoE capable Ethernet switches manufactured on or before
April 30, 2006. PowerDsine agreed that it will not initiate, assist or cooperate
in any legal action relating to the Remote Power Patent.
In June 2008, the Company entered into a new agreement with Microsemi
Corp-Analog Mixed Signal Group Ltd ("Microsemi Analog"), previously PowerDsine
Ltd, a subsidiary of Microsemi Corporation ("Microsemi"), a leading manufacturer
of high performance analog mixed-signal integrated circuits and high reliability
semiconductors, which, among other things, amended the prior Settlement
Agreement entered into between the parties in November 2005. As part of the
Company's Special Licensing Program and its agreement with Microsemi Analog
entered into in June 2008, Microsemi, entered into a license agreement, dated
August 13, 2008, with the Company with respect to the Remote Power Patent. The
license agreement provides that Microsemi is
13
obligated to pay the Company quarterly royalty payments of 2% of the sales price
for certain of Microsemi's Midspan PoE products for the full term of the Remote
Power Patent (March 2020).
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATION
THIS QUARTERLY REPORT ON FORM 10-Q CONTAINS FORWARD-LOOKING STATEMENTS WHICH ARE
STATEMENTS THAT INCLUDE INFORMATION BASED UPON BELIEF OF OUR MANAGEMENT, AS WELL
AS ASSUMPTIONS MADE BY AND INFORMATION AVAILABLE TO MANAGEMENT. STATEMENTS
CONTAINING TERMS SUCH AS "BELIEVES", "EXPECTS", "ANTICIPATES", "INTENDS" OR
SIMILAR WORDS ARE INTENDED TO IDENTIFY FORWARD LOOKING STATEMENTS. ACTUAL
RESULTS, EVENTS AND CIRCUMSTANCES (INCLUDING FUTURE PERFORMANCE, RESULTS AND
TRENDS) COULD DIFFER MATERIALLY FROM THOSE SET FORTH IN SUCH STATEMENTS DUE TO
VARIOUS RISKS AND UNCERTAINTIES, INCLUDING, BUT NOT LIMITED TO, THOSE DISCUSSED
BEGINNING ON PAGES 8-14 OF OUR ANNUAL REPORT ON FORM 10-K FOR THE YEAR 2008 AND
AS DISCUSSED IN THIS QUARTERLY REPORT ON FORM 10-Q.
OVERVIEW
Our principal business is the acquisition, development, licensing and
protection of our intellectual property. We presently own six patents covering
various telecommunications and data networking technologies (the "Patent
Portfolio") including, among others, patents covering the delivery of power over
Ethernet for the purpose of remotely powering network devices, and the
transmission of audio, video and data over computer and telephony networks. Our
strategy is to pursue licensing and strategic business alliances with companies
in the industries that manufacture and sell products that make use of the
technologies underlying our patents as well as with other users of the
technology who benefit directly from the technology including corporate,
educational and governmental entities.
To date, our efforts with respect to our Patent Portfolio have focused on
licensing our patent (U.S. Patent No. 6,218,930) covering the control of power
delivery over Ethernet cables (the "Remote Power Patent"). As of September 30,
2009, we had entered into 6 license agreements with respect to our Remote Power
Patent which, among others, included license agreements with D-Link, Microsemi
Corporation and Netgear, Inc. (See Note [D] to our financial statements included
as part of this quarterly report). We may seek to acquire additional patents in
the future.
To date we have incurred significant losses and at September 30, 2009 had
an accumulated deficit of $(52,611,000). For the year ended December 31, 2008
and for the three and nine months ended September 30, 2009, we incurred net
losses of $(1,618,000), $(457,000) and $(1,716,000), respectively. We anticipate
that we will continue to incur losses until we enter into additional license
agreements with respect to our patented technologies or achieve material
additional revenue from our existing license agreements. We achieved revenue of
$349,000 for the year ended December 31, 2008 and $655,000 for the nine months
ended September 30, 2009 with respect to royalties pertaining to our Remote
Power Patent. Our inability to consummate additional material license agreements
or achieve material additional revenue from our existing license agreements
would have a material adverse effect on our operations.
14
Our success and ability to generate revenue is largely dependent on our
ability to consummate licensing arrangements with third parties. In November
2004, we entered into an agreement with ThinkFire Services USA, Ltd.
("ThinkFire") pursuant to which ThinkFire has been granted the exclusive
worldwide rights to negotiate license agreements for our Remote Power Patent
with certain agreed-upon potential licensees. We agreed to pay ThinkFire a fee
ranging from 5% to 20% of the royalty payments received from license agreements
consummated by ThinkFire on our behalf after we recover our expenses.
In February 2008, we commenced litigation against eight major data
networking equipment manufacturers in the United States District Court for the
Eastern District of Texas, Tyler Division, for infringement of our Remote Power
Patent. The complaint named as defendants Cisco Systems, Inc., Cisco Linksys,
LLC, Enterasys Networks, Inc., 3COM Corporation, Inc., Extreme Networks, Inc.,
Foundry Networks, Inc., Netgear, Inc. and Adtran, Inc. We seek injunctive relief
and monetary damages for infringement based upon reasonable royalties as well as
treble damages for the defendant's continued willful infringement of our Remote
Power Patent. All of the defendants answered the complaint and asserted that
they do not infringe any valid claim of our Remote Power Patent, and further
asserted that, based on several different theories, the patent claims are
invalid or unenforceable. In addition to these defenses, the defendants also
asserted counterclaims for, among other things, non-infringement, invalidity,
and unenforceability of our Remote Power Patent. A Markman hearing, a hearing on
claim construction of our Remote Power Patent, is currently scheduled for
December, 2009 and a trial date has been set for July, 2010. In the event that
the Court determines that our Remote Power Patent is not valid or enforceable,
and/or that the defendants do not infringe, any such determination would have a
material adverse effect on us.
On May 29, 2009 we announced that we had agreed to settle the above
referenced litigation with respect to Netgear, Inc. ("Netgear"). As part of the
settlement and under our Special Licensing Program, Netgear entered into a
license agreement with us for our Remote Power Patent. Under the terms of the
license, Netgear licenses the Remote Power Patent from us for its full term
(which expires in March 2020), and pays quarterly royalties (beginning as of
April 1, 2009) based on its sales of Power over Ethernet products, including
those Power over Ethernet products which comply with the Institute of Electrical
and Electronic Engineers 802.3af and 802.3at Standards. Licensed products
include Netgear's Power over Ethernet enabled switches and wireless access
points. The royalty rates included in the license are 1.7% of the sales price of
Power Sourcing Equipment, which includes Ethernet switches, and 2% of the sales
price of Powered Devices, which includes wireless access points. The royalty
rates are subject to adjustment, under certain circumstances, if we grant a
license to other licensees with lower royalty rates and Netgear is able to and
agrees to assume all material terms and conditions of the other license. In
addition, Netgear made a payment to us of $350,000 with respect to the
settlement.
In August 2007 we finalized the settlement of our patent litigation against
D-Link in the United States District Court for the Eastern District of Texas,
Tyler Division, for infringement of our Remote Power Patent (U.S. Patent No.
6,218,930). Under the terms of the settlement, D-Link licenses our Remote Power
Patent the terms of which include monthly royalty payments of 3.25% (as adjusted
as noted below) of the net sales of D-Link branded Power over Ethernet products,
including those products which comply with the IEEE 802.3af and 802.3at
Standards, for the full life of our Remote Power Patent, which expires in March
2020. The royalty rate is
15
subject to adjustment to a rate consistent with other similarly situated
licensees of our Remote Power Patent based on units of shipments of licensed
products. In addition, D-Link paid us $100,000 upon signing the settlement
agreement. In June 2009, based upon several licenses issued to third parties
under our Special Licensing Program, we agreed with D-Link to adjust the royalty
rate to 1.7% of the sales price for Power Servicing Equipment (which includes
Ethernet switches) and 2.0% of the sales price for Powered Devices (which
includes wireless access points).
As part of our Special Licensing Program and our agreement with Microsemi
Corp-Analog Mixed Signal Group Ltd. ("Microsemi-Analog") entered into in June
2008, Microsemi Corporation ("Microsemi"), the parent company of
Microsemi-Analog, entered into a license agreement, dated August 13, 2008, with
us with respect to the Remote Power Patent. The license agreement provides that
Microsemi is obligated to pay us quarterly royalty payments of 2% of the sales
price for certain of Microsemi's Midspan PoE products for the full term of the
Remote Power Patent (through March 2020).
Notwithstanding our license agreements, including those with D-Link,
Microsemi and Netgear described above, there is no assurance that we will
achieve significant royalty revenue from such licenses, that we will be able to
achieve additional material license agreements with third parties relating to
our Remote Power Patent or our other patents, or that such license arrangements
will result in material revenue to us.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 2009 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 2008
We had revenue of $141,000 and $106,000 for the three months ended
September 30, 2009 and 2008, respectively, which were related to the receipt of
royalties from licensees of our Remote Power Patent. The increased revenue of
$35,000 for the three months ended September 30, 2009 as compared to the three
month period ended September 30, 2008 was due primarily to additional licensees
of our Remote Power Patent and increased royalties from our licensees.
We had a cost of revenue of $4,000 and $5,000 for the three months ended
September 30, 2009 and 2008.
The gross profit increased $36,000 from $101,000 for the three months ended
September 30, 2008 to $137,000 for the three months ended September 30, 2009.
Such increased gross profit was the result of increased licensing revenue for
the three months ended September 30, 2009.
General and administrative expenses include overhead expenses, and finance,
accounting, legal and other professional services incurred by us. General and
administrative expenses increased by $103,000, from $439,000 the three months
ended September 30, 2008 to $542,000 for the three months ended September 30,
2009 due primarily to increased fees and expenses with respect to litigation
involving our Remote Power Patent.
We incurred an operating loss of ($456,000) for the three months ended
September 30, 2009 compared with an operating loss of ($408,000) for the three
months ended September 30,
16
2008. Included in the operating loss for the three months ended September 30,
2009 was $51,000 in charges relating to non-cash compensation expenses, as
compared to $70,000 for such non-cash compensation expenses for the three months
ended September 30, 2008.
No provision for or benefit from federal, state or local income taxes was
recorded for the three months ended September 30, 2009 and September 30, 2008
because we incurred net operating losses and fully reserved our deferred tax
assets as their future realization could not be determined.
As a result of the foregoing, we incurred a net loss of $(457,000) for the
three months ended September 30, 2009 compared with a net loss of $(383,000) for
the three months ended September 30, 2008.
NINE MONTHS ENDED SEPTEMBER 30, 2009 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
2008
We had revenue of $655,000 and $240,000 for the nine months ended September
30, 2009 and 2008, respectively, which were related to the receipt of royalties
from licensees of our Remote Power Patent. The revenue increase of $415,000 for
the nine months ended September 30, 2009 as compared to the nine month period
ended September 30, 2008 was due primarily to the $350,000 payment from the
settlement of our litigation with Netgear, Inc., as well as additional royalties
from our licensees.
We had a cost of royalties of $69,000 and $12,000 for the nine months ended
September 30, 2009 and 2008, respectively, which increase of $57,000 was related
to additional bonus compensation payable to our Chairman and Chief Executive
Officer pursuant to his employment agreement, and contingent legal fees paid to
Dovel & Luner, our patent litigation counsel.
The gross profit for the nine months ended September 30, 2009 increased
$358,000 from $228,000 for the nine months ended September 30, 2008 to $586,000
for the nine months ended September 30, 2009. Such increased gross profit was
the result of increased revenue for the nine months ended September 30, 2009 due
primarily to the $350,000 upfront payment from settlement of our litigation with
Netgear, Inc., as well as additional royalties from our licensees.
General and administrative expenses include overhead expenses, and finance,
accounting, legal and other professional services incurred by us. General and
administrative expenses increased by $296,000 from $1,209,000 for the nine
months ended September 30, 2008 to $1,505,000 for the nine months ended
September 30, 2009 due primarily to increased fees and expenses from our patent
litigation.
We incurred an operating loss of ($1,716,000) for the nine months ended
September 30, 2009 compared with an operating loss of ($1,197,000) for the nine
months ended September 30, 2008. Included in the operating loss for the nine
months ended September 30, 2009 was $797,000 in charges relating to non-cash
compensation expenses primarily related to the adjustment of exercise prices for
outstanding options and warrants (see Note A[3] to our financial statements
included in this quarterly report) as compared to $216,000 for such non-cash
compensation expenses for nine months ended September 30, 2008.
17
No provision for or benefit from federal, state or local income taxes was
recorded for nine months ended September 30, 2009 and September 30, 2008 because
we incurred net operating losses and fully reserved our deferred tax assets as
their future realization could not be determined.
As a result of the foregoing, we incurred a net loss of $(1,716,000) for
the nine months ended September 30, 2009 compared with a net loss of
$(1,104,000) for the nine months ended September 30, 2008.
LIQUIDITY AND CAPITAL RESOURCES
We have financed our operations primarily from the sale of equity
securities and royalty revenue from licensing our Remote Power Patent. We
anticipate, based on currently proposed plans and assumptions, relating to our
operations, that our cash and cash equivalents of approximately $3,450,000 as of
September 30, 2009 will more likely than not be sufficient to satisfy our
operations and capital requirements until at least December 31, 2010. There can
be no assurance, however, that such funds will not be expended prior thereto. In
the event our plans change, or our assumptions change, or prove to be inaccurate
(due to unanticipated expenses, difficulties, delays or otherwise), we may have
insufficient funds to support our operations prior to December 31, 2010 Our
inability to consummate additional material licensing arrangements with respect
to our Remote Power Patent and generate revenues therefrom, achieve a material
increase in revenue from our existing licenses or obtain additional financing
when needed, would have a material adverse effect on our company, requiring us
to curtail or cease operations. In addition, any equity financing may involve
substantial dilution to our current stockholders.
OFF-BALANCE SHEET ARRANGEMENTS
We do not have any off-balance sheet arrangements.
CONTRACTUAL OBLIGATIONS
We do not have any long-term debt, capital lease obligations, operating lease
obligations, purchase obligations or other long-term liabilities.
18
CRITICAL ACCOUNTING POLICIES:
Patents:
The Company owns a patent portfolio that relates to various telecommunications
and data networking technologies. The Company capitalizes the costs associated
with acquisition, registration and maintenance of the patents and amortizes
these assets over their remaining useful lives on a straight-line basis. Any
further payments made to maintain or develop the patents would be capitalized
and amortized over the balance of the useful life for the patents.
Impairment of long-lived assets:
In accordance with Statement of Financial Accounting Standards ("SFAS") No. 144,
"Accounting for the Impairment or Disposal of Long-Lived Assets", we record
impairment losses on long-lived assets used in operations or expected to be
disposed of when indicators of impairment exist and the cash flows expected to
be derived from those assets are less than carrying amounts of those assets.
Use of estimates:
The preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable.
19
ITEM 4. CONTROLS AND PROCEDURES.
(a) Evaluation of Disclosure Controls and Procedures
Our Chief Executive Officer and Chief Financial Officer have reviewed our
disclosure controls and procedures as of the end of the period covered by this
Quarterly Report on Form 10-Q. Based upon this review, these officers concluded
that, as of the end of the period covered by this Quarterly Report on Form 10-Q,
our disclosure controls and procedures are effective to ensure that information
required to be disclosed by us in the reports we file or submit under Securities
Exchange Act of 1934 is recorded, processed, summarized and reported within the
time periods specified in the Securities and Exchange Commission's rules and
forms, and is accumulated and communicated to management, including our Chief
Executive Officer and Chief Financial Officer, as appropriate to allow timely
decisions regarding required disclosure.
(b) Changes in Internal Controls
There was no change in our internal control over financial reporting that
occurred during the fiscal quarter ended September 30, 2009 that has materially
affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
PART II. OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
Pending Litigation Against Major Data Networking Equipment Manufacturers
In February 2008, we commenced litigation against eight major data networking
equipment manufacturers in the United States District Court for the Eastern
District of Texas, Tyler Division, for infringement of our Remote Power Patent.
The complaint named as defendants Cisco Systems, Inc., Cisco Linksys, LLC,
Enterasys Networks, Inc., 3COM Corporation, Inc., Extreme Networks, Inc.,
Foundry Networks, Inc., Netgear, Inc. and Adtran, Inc. We seek injunctive relief
and monetary damages for infringement based upon reasonable royalties as well as
treble damages for the defendants' continued willful infringement of our Remote
Power Patent. The defendants, in their answers to our complaint, asserted that
they do not infringe any valid claim of our Remote Power Patent, and further
asserted that, based on several different theories, the patent claims are
invalid or unenforceable. In addition to these defenses, the defendants also
asserted counterclaims for, among other things, non-infringement, invalidity,
and unenforceability of our Remote Power Patent. A Markman hearing, a hearing on
claim construction of our Remote Power Patent, is scheduled for December, 2009
and a trial date has been set for July, 2010. In the event that the Court
determines that our Remote Power Patent is not valid or enforceable, and/or that
the defendants do not infringe, any such determination would have a material
adverse effect on our company.
On May 29, 2009 we announced that we had agreed to settle the above referenced
litigation with respect to Netgear, Inc. ("Netgear"). As part of the settlement
and under our Special Licensing Program, Netgear entered into a license
agreement with us for our Remote Power Patent and we agreed that all claims and
counterclaims involving Netgear in the litigation would be dismissed with
prejudice. Under the terms of the license, Netgear licenses the Remote Power
Patent from us for its full term (which expires in March 2020), and pays
quarterly royalties (beginning as of April 1, 2009) based on its sales of Power
over Ethernet products, including those Power over Ethernet products
20
which comply with the Institute of Electrical and Electronic Engineers 802.3af
and 802.3at Standards. Licensed products include Netgear's Power over Ethernet
enabled switches and wireless access points. The royalty rates included in the
license are 1.7% of the sales price of Power Sourcing Equipment, which includes
Ethernet switches, and 2% of the sales price of Powered Devices, which includes
wireless access points. The royalty rates are subject to adjustment, under
certain circumstances, if we grant a license to other licensees with lower
royalty rates and Netgear is able to and agrees to assume all material terms and
conditions of such other license. In addition, Netgear made a payment of
$350,000 to us with respect to the settlement.
D-Link Settlement
In August 2005, we commenced patent litigation against D-Link Corporation and
D-Link Systems, Incorporated (collectively "D-Link") in the United States
District Court for the Eastern District of Texas, Tyler division, for
infringement of our Remote Power Patent. Our complaint sought, among other
things, a judgment that our Remote Power Patent is enforceable and has been
infringed by the defendants. We also sought a permanent injunction restraining
the defendants from continued infringement, or active inducement of infringement
by others, of our Remote Power Patent.
In August 2007, we finalized the settlement of our patent infringement
litigation against D-Link. Under the terms of the settlement, D-Link entered
into a license agreement for our Remote Power Patent the terms of which include
monthly royalty payments of 3.25% (subject to adjustment as noted below) of the
net sales of D-Link Power over Ethernet products, including those products which
comply with the IEEE 802.3af and 802.3at Standards, for the full term of our
Remote Power Patent, which expires in March 2020. In addition, D-Link paid us
$100,000 upon signing of the Settlement Agreement. The royalty rate is subject
to adjustment to a rate consistent with other similarly situated licensees of
our Remote Power Patent based on units of shipments of licensed products. In
June 2009, based upon several licenses issued to third parties under our Special
Licensing Program, we agreed with D-Link to adjust the royalty rate to 1.7% of
the sales price for Power Servicing Equipment (which includes Ethernet switches)
and 2.0% of the sales price for Powered Devices (which includes wireless access
points).
Microsemi - PowerDsine Settlement
On November 16, 2005, we entered into a Settlement Agreement with PowerDsine,
Inc. and PowerDsine Ltd. (collectively, "PowerDsine") which dismissed, with
prejudice, patent litigation brought by PowerDsine against us in March 2004 in
the United States District Court for the Southern District of New York that
sought a declaratory judgment that our Remote Power Patent was invalid and not
infringed by PowerDsine and/or its customers. Under the terms of the Settlement
Agreement, we agreed that, under certain circumstances, we will not initiate
litigation against PowerDsine for its sale of Power over Ethernet (PoE)
integrated circuits. In addition, we agreed that we will not seek damages for
infringement from customers that incorporate PowerDsine integrated circuit
products in PoE capable Ethernet switches manufactured on or before April 30,
2006. PowerDsine has agreed that it will not initiate, assist or cooperate in
any legal action relating to the Remote Power Patent. In June 2008 we entered
into a new agreement with Microsemi Corp-Analog Mixed Signal Group Ltd
("Microsemi Analog"), previously PowerDsine Ltd, a subsidiary of Microsemi
Corporation ("Microsemi"), a leading manufacturer of high performance analog
mixed-signal integrated circuits and high reliability semiconductors, which,
among other things, amended the prior Settlement Agreement entered into between
the parties in November 2005. As part of our Special Licensing
21
Program and our agreement with Microsemi Analog entered into in June 2008,
Microsemi entered into a license agreement, dated August 13, 2008, with us with
respect to our Remote Power Patent. The license agreement provides that
Microsemi is obligated to pay us quarterly royalty payments of 2% of the sales
price for certain of Microsemi's Midspan PoE products for the full term of our
Remote Power Patent (March 2020).
ITEM 1A. Risk Factors.
Our operations and financial results are subject to various risks and
uncertainties that could adversely affect our business, financial condition,
results of operations and trading price of our common stock.
Our Annual Report on Form 10-K for the year ended December 31, 2008 includes a
detailed discussion of our risk factors and should be carefully considered by
investors. There were no material changes to the risk factors set forth in our
Annual Report on Form 10-K for the year ended December 31, 2008 except as
otherwise disclosed in this Quarterly Report on Form 10-Q.
ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds.
None.
ITEM 3. Defaults Upon Senior Securities.
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
None.
ITEM 5. OTHER INFORMATION.
None.
ITEM 6. EXHIBITS
(a) Exhibits
31.1 Controls and Procedure Certification of Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Controls and Procedure Certification of Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Chief Executive Officer pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
32.2 Certification of Chief Financial Officer pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
22
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
NETWORK-1 SECURITY SOLUTIONS, INC.
BY: /S/ COREY M. HOROWITZ
------------------------------------
COREY M. HOROWITZ
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BY: /S/ DAVID C. KAHN
------------------------------------
DAVID C. KAHN
CHIEF FINANCIAL OFFICER
DATE: November 12, 2009
23
EXHIBIT 31.1
------------
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C.SS.1350)
I, Corey M. Horowitz, Chairman and Chief Executive Officer of Network-1
Security Solutions, Inc. (the "Registrant"), certify that:
1. I have reviewed this report on Form 10-Q of 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 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. The Registrant's other certifying officer and I are 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-15(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 our supervision, to
ensure that material information relating to the Registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, 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 our 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
control over financial reporting that occurred during the Registrant's most
recent fiscal quarter that has materially affected, or is reasonably likely
to materially affect, the Registrant's internal control over financial
reporting; and
5. The Registrant's other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, 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 control over financial reporting 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 control
over financial reporting.
DATE: DATE: November 12, 2009 /S/ COREY M. HOROWITZ
-----------------------------------------
COREY M. HOROWITZ
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
EXHIBIT 31.2
------------
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C.SS.1350)
I, David C. Kahn, Chief Financial Officer of Network-1 Security Solutions, Inc.
(the "Registrant"), certify that:
1. I have reviewed this report on Form 10-Q of 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 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. The Registrant's other certifying officer and I are 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-15(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 our supervision, to
ensure that material information relating to the Registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, 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 our 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
control over financial reporting that occurred during the Registrant's most
recent fiscal quarter that has materially affected, or is reasonably likely
to materially affect, the Registrant's internal control over financial
reporting; and
5. The Registrant's other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, 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 control over financial reporting 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 control
over financial reporting.
DATE: November 12, 2009 /S/ DAVID C. KAHN
-----------------------------------------
DAVID C. KAHN
CHIEF FINANCIAL OFFICER
EXHIBIT 32.1
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CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C. SS. 1350)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. ss. 1350),
the undersigned, Corey M. Horowitz, Chief Executive Officer and Chairman of
Network-1 Security Solutions, Inc., a Delaware corporation (the "Company"), does
hereby certify to his knowledge, that:
The Quarterly Report of Form 10-Q for the quarter ended September 30, 2009 of
the Company (the "Report") fully complies with the requirements of Section 13(a)
or 15(d) of the Securities Act of 1934, and the information contained in the
Report fairly presents, in all material respects, the financial condition and
results of operations of the Company.
Date: November 12, 2009
/S/ COREY M. HOROWITZ
-----------------------------------------
COREY M. HOROWITZ
CHIEF EXECUTIVE OFFICER AND CHAIRMAN
EXHIBIT 32.2
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CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 (18 U.S.C. SS. 1350)
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. ss. 1350),
the undersigned, David C. Kahn, Chief Financial Officer of Network-1 Security
Solutions, Inc., a Delaware corporation (the "Company"), does hereby certify to
his knowledge, that:
The Quarterly Report of Form 10-Q for the quarter ended September 30, 2009 of
the Company (the "Report") fully complies with the requirements of Section 13(a)
or 15(d) of the Securities Act of 1934, and the information contained in the
Report fairly presents, in all material respects, the financial condition and
results of operations of the Company.
Date: November 12, 2009
/S/ DAVID C. KAHN
-----------------------------------------
DAVID C. KAHN
CHIEF FINANCIAL OFFICER