NETWORK-1 SECURITY SOLUTIONS, INC.
Filed Pursuant to Rule 424(b)(3)
Registration No. 333-14370
PROSPECTUS SUPPLEMENT NO. 1
(To Prospectus dated September 30, 2008)
This is a prospectus supplement to our prospectus dated September 30, 2008 (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, 2008, 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, 2008.
================================================================================
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, 2008
[_] 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.
----------------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-3027591
------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
445 PARK AVENUE, SUITE 1028, NEW YORK, NEW YORK 10022
-----------------------------------------------------
(Address of principal executive offices)
212-829-5770
------------
(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 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, 2008 was 24,135,557.
================================================================================
NETWORK-1 SECURITY SOLUTIONS, INC.
INDEX
Page No.
PART I. FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
Condensed Balance Sheets as of September 30, 2008
(unaudited) and December 31, 2007.................................3
Condensed Statements of Operations for the three and
nine months ended September 30, 2008 and 2007 (unaudited).........4
Condensed Statements of Cash Flows for the nine months
ended September 30, 2008 and 2007 (unaudited).....................5
Notes to 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.......18
Item 4. CONTROLS AND PROCEDURES..........................................19
PART II. OTHER INFORMATION
Item 1. Legal Proceedings................................................19
Item 1A. Risk Factors.....................................................21
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.................................................................24
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED BALANCE SHEETS
UNAUDITED
September 30, DECEMBER 31,
2008 2007
------------ ------------
(UNAUDITED)
ASSETS:
Current assets:
Cash and cash equivalents $ 4,788,000 $ 5,928,000
Royalty and Interest Receivable 65,000 23,000
Other current assets 11,000 71,000
------------ ------------
Total current assets 4,864,000 6,022,000
Security Deposits 6,000 6,000
Capitalized Patent Costs 99,000 72,000
------------ ------------
$ 4,969,000 $ 6,100,000
============ ============
LIABILITIES:
Current liabilities:
Accounts payable $ 39,000 $ 103,000
Accrued expenses and other current liabilities 85,000 264,000
------------ ------------
Total current liabilities 124,000 367,000
------------ ------------
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, 2008 and December 31, 2007 241,000 241,000
Additional paid-in capital 54,985,000 54,769,000
Accumulated deficit (50,381,000) (49,277,000)
------------ ------------
4,845,000 5,733,000
------------ ------------
$ 4,969,000 $ 6,100,000
============ ============
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,
------------------------------ ------------------------------
2008 2007 2008 2007
------------ ------------ ------------ ------------
Royalty Revenue $ 106,000 $ 181,000 $ 240,000 $ 181,000
Cost of Revenue 5,000 9,000 12,000 9,000
------------ ------------ ------------ ------------
Gross Profit 101,000 172,000 228,000 172,000
------------ ------------ ------------ ------------
Operating expenses:
General and administrative 439,000 300,000 1,209,000 $ 1,533,000
Non Cash Compensation 70,000 67,000 216,000 1,294,000
------------ ------------ ------------ ------------
Total Operating Expense 509,000 367,000 1,425,000 2,827,000
------------ ------------ ------------ ------------
LOSS BEFORE INTEREST INCOME (408,000) (195,000) (1,197,000) (2,655,000)
Interest income - net 25,000 61,000 93,000 124,000
------------ ------------ ------------ ------------
Net Loss $ (383,000) $ (134,000) $ (1,104,000) $ (2,531,000)
============ ============ ============ ============
LOSS PER COMMON SHARE: BASIC AND DILUTED $ (0.02) $ (0.01) $ (.05) $ (.12)
============ ============ ============ ============
WEIGHTED AVERAGE SHARES: BASIC AND DILUTED 24,135,557 23,198,057 24,135,557 21,869,913
============ ============ ============ ============
See notes to condensed financial statements
4
NETWORK-1 SECURITY SOLUTIONS, INC.
CONDENSED STATEMENTS OF OPERATIONS
UNAUDITED
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
2008 2007
----------- -----------
Cash flows from operating activities:
Net loss $(1,104,000) $(2,531,000)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization 5,000 8,000
Non Cash Compensation 216,000 1,294,000
Changes in:
Prepaid expenses and other current assets 18,000 25,000
Capitalized Patent Costs (32,000)
Accounts payable, accrued expenses and other
current liabilities (243,000) (387,000)
----------- -----------
Net cash used in operating activities (1,140,000) (1,591,000)
----------- -----------
Cash Flows from Investing Activities -- --
----------- -----------
Cash Flows from Financing Activities
Issuance of Common Stock, net of expenses of $275,000 -- 4,767,000
----------- -----------
NET INCREASES (DECREASE) IN CASH AND CASH EQUIVALENTS (1,140,000) 3,176,000
Cash and cash equivalents, beginning of period 5,928,000 1,797,000
----------- -----------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 4,788,000 $ 4,973,000
=========== ===========
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
NETWORK-1 SECURITY SOLUTIONS, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A - NATURE OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
[1] BASIS OF PRESENTATION:
The accompanying condensed financial statements as of September 30, 2008 and for
the three and nine month periods ended September 30, 2008 and September 30, 2007
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, 2008, and
the results of its operations and its cash flows for the three and nine month
periods ended September 30, 2008 and September 30, 2007. 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, 2007 included in the Company's Annual Report on Form 10-KSB filed
with the Securities and Exchange Commission. The results of operations for the
nine months ended September 30, 2008 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 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. The Company may seek to acquire
additional patents in the future.
To date, the Company's efforts with respect to its Patent Portfolio have focused
on licensing its patent (U.S. Patent No. 6,218,930) covering the control of
power delivery over Ethernet cables (the "Remote Power Patent"). In August,
2007, as part of a settlement agreement relating to the Company's litigation
with D-Link, the Company entered into a license
6
[2] BUSINESS: (CONTINUED)
agreement with D-Link pertaining to its Remote Power Patent (See Note D[2]). In
February 2008, the Company commenced patent infringement litigation against
several major data networking equipment manufacturers including Cisco Systems,
Inc. and 7 other defendants (See Note D[1]). As part of the Company's agreement
with Microsemi Corp - Analog Mixed Signal Group Ltd ("Microsemi Analog") entered
into in June 2008, Microsemi Corporation, the parent company of Microsemi Analog
(formerly PowerDsine Ltd.), entered into a license agreement, dated August 13,
2008, with the Company with respect to the Remote Power Patent as part of the
Company's Special Licensing Program. At least for the next twelve months, the
Company does not currently anticipate licensing efforts for its other patents
besides its Remote Power Patent.
(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, 2007 and the three and nine month
period ended September 30, 2008. For the year ended December 31, 2007 and the
three and nine month period ended September 30, 2008, the Company had revenue
$232,000, $106,000 and $240,000, respectively. The Company will continue to have
operating losses for the foreseeable future until it is successful in licensing
its patented technologies. The Company is dependent upon equity financings until
it generates sufficient cash flow from operations. The Company had cash and cash
equivalents of $4,788,000 as of September 30, 2008. 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, 2009,
although there can be no assurance that such funds will not be expended prior
thereto.
[3] STOCK-BASED COMPENSATION:
Effective January 1, 2006, the Company adopted SFAS No. 123 (revised 2004),
SHARE BASED PAYMENT, or SFAS 123(R), which is a revision of Statement No. 123
("SFAS 123") ACCOUNTING FOR STOCK BASED COMPENSATION. SFAS 123(R) supersedes
Accounting Principles Board ("APB") No. 25, ACCOUNTING FOR STOCK ISSUED TO
EMPLOYEES ("APB"), and amends Financial Accounting Standards Board ("FASB")
Statement No. 95. STATEMENT OF CASH FLOWS. SFAS 123(R) requires all share-based
payments to employees, including grants of employee stock options, to be
recognized in the income statement based on their fair values.
7
[3] STOCK-BASED COMPENSATION: (CONTINUED)
On February 28, 2007, the Company granted a 5 year option to its Chairman and
CEO to purchase 375,000 shares of common stock, at an exercise price of $1.46
per share, in accordance with a new employment agreement (See Note C -
Employment Arrangements and Other Agreements). Such options vested in equal
quarterly amounts of 93,750 shares beginning March 31, 2007 through December 31,
2007. The Company recorded non-cash compensation expenses of $63,000 for this
option during the quarter ended March 31, 2007 based on the Black-Scholes
option-pricing model. In addition, during the quarter ended March 31, 2007, the
Company recorded non-cash compensation expense of $17,000 for the vested portion
of options granted to directors and consultants prior to January 1, 2007.
On January 2, 2008, the Company granted the following options: (i) 5 year
options 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 vest 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. The Company recorded
non-cash compensation expense of $33,000 for these options based on the
Black-Scholes option-pricing model during the nine month period ended September
30, 2008.
In February 2008, the Company also granted to another consultant a 5 year option
to pursue 50,000 shares of common stock, at an exercise price of $1.42 per
share, and also 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 vests on a quarterly basis. The Company recorded non-cash compensation
expense of $27,000 for these options based on the Black-Scholes option-pricing
model.
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
vest in equal quarterly amounts of 93,750 shares beginning March 31, 2008
through December 31, 2008. The Company recognized non-cash compensation expense
of $144,000 for these options during the nine months ended September 30, 2008.
In addition, during the nine month period ended September 30, 2008 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.
The fair value of each option grant on the date of grant is estimated using the
Black-Scholes option-pricing utilizing the fo assumptions:
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
2008 2007
-------------- --------------
Risk-free interest rates 2.73% - 3.28% 4.62%
Expected option life in years 5 yrs. 5 yrs.
Expected stock price volatility 37.32 - 39.35% 45.92%
Expected dividend yield -0- -0-
8
[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 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 12,041,537 and 12,315,857 at September 30, 2008
and 2007, 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,
2008, the Company maintained cash balance of approximately $4,688,000 in excess
of FDIC limits.
NOTE B - COMMITMENTS AND CONTINGENCIES
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 potential 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 not to
exceed 20% of the royalty payments received from license agreements consummated
by ThinkFire on its behalf after the Company recovers certain of its expenses.
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 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. At the time of the
original agreement in November 2003 and the Amendment, certain then principal
stockholders of the Company and related parties were also principal stockholders
and directors of Merlot.
9
NOTE B - COMMITMENTS AND CONTINGENCIES: (CONTINUED)
LEGAL FEES:
Dovel & Luner, LLP provide 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.
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 February 28, 2007, the Company entered into a new Employment Agreement with
Corey M. Horowitz pursuant to which Mr. Horowitz continued to serve as Chairman
and Chief Executive Officer for a two year term at an annual base salary of
$288,750 for the first year, increasing by 5% for the second year. In connection
with his employment agreement, Mr. Horowitz was issued a five (5) year option to
purchase 375,000 shares of common stock, at an exercise price of $1.46 per
share, which vested on a quarterly basis over a one year period subject to
acceleration upon a change of control. The Company also agreed to issue to Mr.
Horowitz on the one year anniversary date an additional five (5) year option to
purchase a minimum of 375,000 shares of our common stock at an exercise price
equal to the closing price of the Company's common stock on the date of grant,
which option vests on a quarterly basis over a one year period. On February 28,
2008, the Company issued such option to Mr. Horowitz to purchase 375,000 shares
at an exercise price of $1.32 per share. In addition to the aforementioned
option grants, the Company agreed to extend for an addition three (3) years the
expiration dates of all options and warrants (an aggregate of 2,620,000 shares)
expiring in calendar year 2007 and 2008 owned by Mr. Horowitz and CMH Capital
Management Corp. ("CMH"), an affiliate. In connection with the extension of the
expiration dates of such options and warrants, the Company recorded compensation
expense of $371,000 during the three months ended March 31, 2007 based on the
Black-Scholes option pricing model. Under the terms of his Employment Agreement,
Mr. Horowitz receives bonus compensation in a amount equal to 5% of Company
royalties or other payments (before deduction of payments to third parties
including, but not limited to, legal fees and expenses and third party license
fees) received from licensing its patents (including patents currently owned 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"). For the nine months ended September 30, 2008, Mr.
Horowitz received $12,000 of Royalty Bonus Compensation. Mr. Horowitz shall also
receive bonus compensation equal 5% of the gross proceeds from (i) the sale of
any of the Company's patents or (ii) the Company's merger with or into another
corporation or entity.
10
NOTE C - EMPLOYMENT ARRANGEMENTS AND OTHER AGREEMENTS: (CONTINUED)
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 by
the Company 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 be entitled to a severance of 12 months base
salary.
In accordance with his employment agreement, Mr. Horowitz also had certain
anti-dilution rights which provided that if at any time during the period ended
December 31, 2008, in the event that the Company completed an offering of its
common stock or any securities convertible or exercisable into common stock
(exclusive of securities issued upon exercise of outstanding options, warrants
or other convertible securities), Mr. Horowitz shall receive from the Company,
at the same price as the securities issued in the financing, such number of
additional options to purchase common stock so that he maintains the same
derivative ownership percentage (21.47%) of the Company based upon options and
warrants owned by Mr. Horowitz and CMH, an affiliated entity, (exclusive of his
ownership of shares of common stock) as he and CMH owned as of the time of
execution of his employment agreement; provided, that, the aforementioned
anti-dilution protection was afforded to Mr. Horowitz up to maximum financings
of $2.5 million. In April 2007, with respect to the Company's completion of a
$5.0 million private placement, Mr. Horowitz was issued a five (5) year option
to purchase 732,709 shares of common stock, at an exercise price of $1.67 per
share, in accordance with the aforementioned anti-dilution provision of his
employment agreement.
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 defendants in the lawsuit include 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. To date all of the defendants
have answered the complaint and 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. 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.
[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 complaint sought, among other things, a judgment that the
11
NOTE D - LITIGATION: (CONTINUED)
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 its patent infringement
litigation against D-Link. 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% 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. 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 addition, D-Link paid the
Company $100,000 upon signing of the Settlement Agreement.
[3] On November 17, 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. The Company also agreed
that it will not initiate litigation against PowerDsine or its customers for
infringement of the Remote Power Patent arising from the manufacture and sale of
PowerDsine Midspan products for three years following the dismissal date.
Following such three year period, the Company may seek damages for infringement
of the Remote Power Patent from PowerDsine or its customers with respect to the
purchase and sale of Midspan products beginning 90 days following the dismissal
date. No licenses to use the technologies covered by the Company's Remote Power
Patent were granted to PowerDsine or its customers under the terms of the
settlement. The Settlement Agreement further provides that PowerDsine is
obligated to provide each of its customers with written notice of the settlement
which notice shall disclose that no license for the Company's Remote Power
Patent has been provided to PowerDsine's customers and that in order to combine,
modify or integrate any PowerDsine product with or into any other device or
software, PowerDsine's customers may need to receive patent license(s) for such
third party patents which is the customer's responsibility.
12
NOTE D - LITIGATION: (CONTINUED)
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 agreement, among other things, amended the prior
settlement agreement entered into between the parties in November 2005. Under
the new agreement, on June 25, 2008 the Company announced the commencement of an
industry-wide Special Licensing Program for its Remote Power Patent to vendors
of PoE equipment. The Special Licensing Program is of limited duration (through
December 31, 2008) and is being implemented on an industry-wide basis to offer
discounted running royalty rates and exceptions to the Company's standard
licensing terms and conditions for the Remote Power Patent to PoE vendors who
are "early adopters" and enter into license agreements without delay to avoid
litigation and higher royalties. The new agreement enables Microsemi Analog to
assist in its customer's evaluation of the Remote Power Patent and the terms
being made available to vendors of PoE equipment pursuant to the Company's new
Special Licensing Program, an activity that was previously prohibited by the
2005 Settlement Agreement with PowerDsine. As part of the Company's 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 as part of the Special Licensing Program. The license
agreement provides that Microsemi is 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).
13
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-KSB FOR THE YEAR 2007
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"). In August, 2007, as
part of a settlement agreement relating to our litigation with D-Link, we
entered into a license agreement with D-Link pertaining to our Remote Power
Patent (See Note D[2] to our financial statements). In August 2008, Microsemi
Corporation also entered into a license agreement with us with respect to our
Remote Power Patent (See Note D[3] to our financial statements). In February
2008, we commenced patent infringement litigation against several major data
networking equipment manufacturers including Cisco Systems, Inc. and seven (7)
other defendants (See Note D[1] to our financial statements). During the next 12
months we do not presently anticipate licensing efforts for our other patents
besides our Remote Power Patent.
To date we have incurred significant losses and at September 30, 2008 had
an accumulated deficit of $(50,381,000). For the year ended December 31, 2007
and for the three and nine months ended September 30, 2008, we incurred net
losses of $(2,998,000), $(383,000) and $(1,104,000), respectively. We anticipate
that we will continue to incur losses until we enter into additional license
agreements with respect to our patented technologies. We achieved revenue of
$232,000 from our technology licensing business for the year ended December 31,
2007 and $240,000 for the nine months ended September 30,
14
2008 with respect to royalties pertaining to our Remote Power Patent. Our
inability to consummate additional material license agreements and achieve
revenue from our patented technologies would have a material adverse effect on
our operations and our ability to continue business.
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 have agreed to pay ThinkFire a
fee of up to 20% of the royalty payments received from license agreements
consummated by ThinkFire on our behalf after we recover certain of our expenses.
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 has agreed to license our
the Remote Power Patent the terms of which include monthly royalty payments of
3.25% 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 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. Notwithstanding the settlement and our license agreement with D-Link,
there is no assurance that we will achieve significant royalty revenue from
D-Link, that we will be able to achieve additional 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.
In February 2008, we 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 our Remote Power
Patent. The defendants in the lawsuit include 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. All of the defendants have 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.
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.
As part of 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,
15
2008, with us with respect to the Remote Power Patent as part of our Special
Licensing Program. 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
(March 2020).
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 2008 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 2007
We had revenues of $106,000 for the three months ended September 30, 2008
as compared to $181,000 for the three months ended September 30, 2007 which were
related to the receipt of royalties from our licensees with respect to our
Remote Power Patent. The decrease in revenue was due primarily to an upfront
royalty payment of $100,000 paid by D-Link in August 2007 in accordance with its
license agreement with us.
We had a cost of royalties of $5,000 for the three months ended September
30, 2008 as compared to $9,000 in 2007 which was related to the payment of bonus
compensation on the royalties pursuant to an employment agreement with our Chief
Executive Officer. The gross profit for the three months ended September 30,
2008 was $101,000 as compared to $172,000 for the three months ended September
30, 2007.
General and administrative expenses include overhead expenses, and finance,
accounting, legal and other professional services incurred by us. General and
administrative expenses increased by $139,000, from $300,000 for the three
months ended September 30, 2007 to $439,000 for the three months ended September
30, 2008 due primarily to increased fees and expenses related to our pending
patent litigation.
We incurred an operating loss of ($408,000) for the three months ended
September 30, 2008 compared with an operating loss of ($195,000) for the three
months ended September 30, 2007. Included in the operating loss for the three
months ended September 30, 2008 was $70,000 in charges relating to non-cash
compensation expenses as compared to $67,000 for such non-cash compensation
expenses for the three months ended September 30, 2007. These losses were offset
by interest earned of $25,000 and $61,000 for the three months ended September
30, 2008 and 2007, respectively.
No provision for or benefit from federal, state or foreign income taxes was
recorded for three months ended September 30, 2008 and September 30, 2007
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 $(383,000) for the
three months ended September 30, 2008 compared with a net loss of $(134,000) for
the three months ended September 30, 2007.
16
NINE MONTHS ENDED SEPTEMBER 30, 2008 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
2007
We had revenues of $240,000 for the nine months ended September 30, 2008 as
compared to $181,000 for the nine months ended September 20, 2007 which were
related to the receipt of royalties from our licensees pursuant to license
agreements with respect to our Remote Power Patent.
We had a cost of royalties of $12,000 and $9,000 for the nine months ended
September 30, 2008 and 2007, which was related to the payment of bonus
compensation on the royalties pursuant to an employment agreement with our Chief
Executive Officer. The gross profit for the nine months ended September 30, 2008
was $228,000 as compared to $172,000 for the nine months ended June 30, 2007.
General and administrative expenses include overhead expenses, and finance,
accounting, legal and other professional services incurred by us. General and
administrative expenses decreased by $324,000, from $1,533,000 for the nine
months ended September 30, 2007 to $1,209,000 for the nine months ended
September 30, 2008 due primarily to decreased fees and expenses as a result of
the settlement of the D-Link litigation offset by the costs related to our
pending patent litigation.
We incurred an operating loss of ($1,197,000) for the nine months ended
September 30, 2008 compared with an operating loss of ($2,655,000) for the nine
months ended September 30, 2007. Included in the operating loss for the nine
months ended September 30, 2008 was $216,000 in charges relating to non-cash
compensation expenses as compared to $1,294,000 for such non-cash compensation
expenses for the nine months ended September 30, 2007. These losses were offset
by interest earned of $93,000 and $124,000 for the nine months ended September
30, 2008 and 2007, respectively.
No provision for or benefit from federal, state or foreign income taxes was
recorded for nine months ended September 30, 2008 and September 30, 2007 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 $(1,104,000) for
the nine months ended September 30, 2008 compared with a net loss of
$(2,531,000) for the nine months ended September 30, 2007.
LIQUIDITY AND CAPITAL RESOURCES
We have financed our operations primarily from the sale of equity securities. In
April 2007, we completed a private offering of equity securities resulting in
gross proceeds of $5,000,000. In addition, during the fourth quarter of 2007 we
received $1,184,375 of cash proceeds from the exercise of warrants issued in
December 2004 and January 2005. We anticipate, based on currently proposed plans
and assumptions, relating to our operations, that our cash and cash equivalents
of approximately $4,788,000 as of September 30, 2008 will more likely than not
be sufficient to satisfy our operations and capital requirements until at least
December 31, 2009. There can be no assurance, however, that such funds will not
be
17
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, 2009. Our inability to consummate material licensing
arrangements with respect to our Remote Power Patent and generate revenues
therefrom on a timely basis 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.
CRITICAL ACCOUNTING POLICIES:
Patents:
We own a patent portfolio that relates to various telecommunications and data
networking technologies. We capitalize 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.
18
ITEM 4. CONTROLS AND PROCEDURES.
(a) Evaluation of Disclosure Controls and Procedure
Our Chief Executive Officer and Chief Financial Officer have reviewed our
disclosure controls and procedures of the Company 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 applicable rules and forms
and is accumulated and communicated to management, including our Chief Executive
Officer and Chief Financial Officer, 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 quarter ended September 30, 2008 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 several 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 defendants in the lawsuit include 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. To date all of the defendants have 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.
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.
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 (Civil Action
No. 6:05W291), for infringement of our Remote Power Patent. Our complaint seeks,
among other things, a judgment that our Remote Power Patent is enforceable and
has been infringed by the defendants. We also seek a permanent injunction
restraining the defendants from continued infringement, or active inducement of
infringement by others, of our Remote Power Patent.
19
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% 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. 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 addition, D-Link paid us $100,000
upon signing of the Settlement Agreement.
POWERDSINE SETTLEMENT
On November 16, 2005, we entered into a Settlement Agreement with PowerDsine,
Inc. (NASDAQ: PDSN) 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 (U.S.
Patent No. 6,218,930) was invalid and not infringed by PowerDsine and/or its
customers.
Under the terms of the Settlement Agreement, we agreed that 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 agreed that it will not initiate, assist or cooperate in any
legal action relating to the Remote Power Patent. We also agreed that we will
not initiate litigation against PowerDsine or its customers for infringement of
our Remote Power Patent arising from the manufacture and sale of PowerDsine
Midspan products for three years following the dismissal date.
No licenses to use the technologies covered by our Remote Power Patent were
granted to PowerDsine or its customers under the terms of the settlement. The
Settlement Agreement further provides that PowerDsine is obligated to provide
each of its customers with written notice of the settlement which notice shall
disclose that no license for our Remote Power Patent has been provided to
PowerDsine's customers and that in order to combine, modify or integrate any
PowerDsine product with or into any other device or software, PowerDsine's
customers may need to receive patent license(s) for such third party patents
which is the customer's responsibility.
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. Under the new
agreement, on June 25, 2008 we announced the commencement of an industry-wide
Special Licensing Program for our Remote Power Patent to vendors of PoE
equipment. The Special Licensing Program is of limited duration (through
December 31, 2008) and is being implemented on an industry-wide basis to offer
discounted running royalty rates and exceptions to our standard licensing terms
and conditions for the Remote Power Patent to PoE vendors who are "early
adopters" and enter into license agreements without delay to avoid litigation
and higher royalties. The new agreement enables Microsemi Analog to assist in
its customers' evaluation of the Remote Power Patent and the terms being made
available to vendors of PoE equipment pursuant to our new Special Licensing
Program, an activity that was previously prohibited by the 2005 Settlement
20
Agreement with PowerDsine. As part of 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 the Remote Power Patent as part of our
Special Licensing Program. 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 (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-KSB for the year ended December 31, 2007 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-KSB for the year ended December 31, 2007 except as
otherwise disclosed below in this Quarterly Report on Form 10-Q.
o OUR LICENSE AGREEMENTS WITH D-LINK AND MICROSEMI MAY NOT RESULT IN
SIGNIFICANT ROYALTIES AND DO NOT NECESSARILY MEAN WE WILL ACHIEVE ADDITIONAL
LICENSE AGREEMENTS OR MATERIAL REVENUE.
In August 2007 we finalized the settlement agreement with respect to our patent
litigation against D-Link Corporation and D-Link Systems, Incorporated pending
in the United States District Court for the Eastern District of Texas, Tyler
Division, for infringement of our Remote Power Patent. 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% (beginning May
2007) of the net sales of D-Link PoE 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 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
addition, D-Link paid us $100,000 upon signing of the Settlement Agreement. On
August 13, 2008, as part of 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 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). For the nine
months ended September 30, 2008 we received $240,000 of royalty payments from
D-Link and Microsemi pursuant to license agreements. Notwithstanding our license
agreements with the D-Link and Microsemi, there is no assurance that we will
achieve significant royalty revenue from such license agreements, that we will
be able to achieve additional license agreements with third parties relating to
our Remote Power Patent or any of our other patents, or that such license
arrangements will result in material revenue to us.
o The risk factor entitled "we are currently relying upon the efforts of
ThinkFire to consummate licensing agreements for our Remote Power Patent with
certain select potential
21
licenses" (as set forth on page 11 of our Annual Report on Form 10-KSB for the
year ended December 31, 2007) is no longer applicable.
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 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, 2008
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: NOVEMBER 12, 2008 /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, 2008 /S/ DAVID C. KAHN
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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, 2008 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.
/S/ COREY M. HOROWITZ
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CHIEF EXECUTIVE OFFICER AND CHAIRMAN
NOVEMBER 12, 2008
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, 2008 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.
/S/ DAVID C. KAHN
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CHIEF FINANCIAL OFFICER
NOVEMBER 12, 2008