UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 10-QSB
(Mark One)
|X| QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 2006
|_| TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
For the transition period from _____ to _____
COMMISSION FILE NUMBER 0-25675
PATRON SYSTEMS, INC.
(EXACT NAME OF SMALL BUSINESS ISSUER AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-3055158
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
5775 FLATIRON PARKWAY, SUITE 230 80301
BOULDER, CO
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(303) 541-1005
(ISSUER'S TELEPHONE NUMBER)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes |_| No |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|
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: 56,398,360 shares of common stock
outstanding as of May 11, 2006.
Transitional Small Business Disclosure Format (Check one): Yes |_| No |X|
PATRON SYSTEMS, INC.
FORM 10-QSB QUARTERLY REPORT
----------------------------------
TABLE OF CONTENTS
PART I - FINANCIAL INFORMATION PAGE
------------------------------ ----
ITEM 1. FINANCIAL STATEMENTS...................................................3
Condensed Consolidated Balance Sheet at March 31, 2006 (Unaudited).............3
Condensed Consolidated Statements of Operations for the Three Months
Ended March 31, 2006 and 2005 (Unaudited).............................4
Condensed Consolidated Statement of Stockholders' Equity for the
Three Months Ended March 31, 2006 (Unaudited).........................5
Condensed Consolidated Statements of Cash Flows for the Three Months
Ended March 31, 2006 and 2005 (Unaudited).............................6
Notes to Condensed Consolidated Financial Statements (Unaudited)...............7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS..................................31
ITEM 3. CONTROLS AND PROCEDURES...............................................43
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.....................................................45
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS...........46
ITEM 6. EXHIBITS..............................................................48
SIGNATURES....................................................................49
FORWARD LOOKING STATEMENTS
The following discussion and explanations should be read in conjunction with the
financial statements and related notes contained elsewhere in this Form 10-QSB.
Certain statements made in this discussion are "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements can be identified by terminology such as "may",
"will", "should", "expects", "intends", "anticipates", "believes", "estimates",
"predicts", or "continue" or the negative of these terms or other comparable
terminology. Because forward-looking statements involve risks and uncertainties,
there are important factors that could cause actual results to differ materially
from those expressed or implied by these forward-looking statements. Although
Patron Systems believes that expectations reflected in the forward-looking
statements are reasonable, it cannot guarantee future results, performance or
achievements. Moreover, neither Patron Systems nor any other person assumes
responsibility for the accuracy and completeness of these forward-looking
statements. Patron Systems is under no duty to update any forward-looking
statements after the date of this report to conform such statements to actual
results.
2
PART I - FINANCIAL INFORMATION
ITEM 1 FINANCIAL STATEMENTS
PATRON SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(Unaudited)
ASSETS MARCH 31, 2006
------------
Current Assets
Cash and cash equivalents .................................. $ 141,430
Restricted cash ............................................ 1,468,813
Accounts receivable, net ................................... 55,545
Other current assets ....................................... 135,059
------------
Total current assets .................................... 1,800,847
Property and equipment, net .................................. 101,544
Intangible assets, net ....................................... 1,385,717
Unbilled accounts receivable ................................. 54,654
Net assets of discontinued operation ......................... 94,277
Goodwill ..................................................... 9,510,716
------------
Total assets ............................................ $ 12,947,755
============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable ........................................... $ 1,239,813
Accrued payroll and related expenses ....................... 447,253
Accrued interest ........................................... 744,679
Notes payable (to creditors of acquired business);
including $1,538,129 to related parties ................. 1,790,911
Demand notes payable ....................................... 471,056
Expense reimbursements due to officers and
stockholders ............................................ 166,183
Accrued registration penalty ............................... 84,780
Deferred revenue ........................................... 190,009
Notes payable to officers and stockholders ................. 235,712
Other current liabilities .................................. 515,173
Bridge notes payable ....................................... 1,544,975
Net liabilities of discontinued operations ................. 30,201
------------
Total current liabilities ............................... 7,460,745
------------
Commitments and Contingencies
Stockholders' Equity
Preferred stock, par value $0.01 per share,
75,000,000 shares authorized,
- Series A Convertible: 2,160 shares authorized;
893 shares issued and outstanding ................. 9
liquidation preference of $5,581,250
- Series A-1 convertible: 50,000,000 authorized;
33,420,078 issued and outstanding ................. 334,201
liquidation preference of $26,736,063
Common stock, par value $0.01 per share, 150,000,000
shares authorized, 56,398,360 shares issued and
outstanding ............................................. 563,984
Additional paid-in capital ................................. 93,376,917
Accumulated deficit ........................................ (88,788,101)
------------
Total stockholders' equity .............................. 5,487,010
------------
Total liabilities and stockholders' equity .............. $ 12,947,755
============
See notes to condensed consolidated financial statements.
3
PATRON SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
THREE MONTHS ENDED MARCH 31,
-----------------------------
2006 2005
------------ ------------
Revenue ...................................... $ 261,785 $ 6,430
------------ ------------
Cost of Sales
Cost of products/services .................. 29,897 2,003
Amortization of technology ................. 27,522 19,230
------------ ------------
Total cost of sales ...................... 57,419 21,233
------------ ------------
Gross profit ............................... 204,366 (14,803)
------------ ------------
Operating Expenses
Salaries and related expenses .............. 1,010,123 370,349
Professional fees .......................... 658,115 141,401
General and administrative (includes
non-employee stock-based ................ 323,909 722,064
compensation of $0 and $508,500 for
the three months ended March 31,
2006 and 2005, respectively)
Amortization of intangibles ................ 30,814 8,063
Stock based penalties under financing
arrangements ............................ 2,852 369,000
Settlement charge .......................... 858,213 --
------------ ------------
Total operating expenses ................ 2,884,026 1,610,877
------------ ------------
Loss from operations ......................... (2,679,660) (1,625,680)
------------ ------------
Other Income (Expense)
Interest income ............................ -- 19,250
Interest expense ........................... (1,615,514) (494,988)
Gain on sale of property and equpment ...... 62 --
------------ ------------
Total Other Expense .......................... (1,615,452) (475,738)
------------ ------------
Loss from continuing operations
before income taxes .................. (4,295,112) (2,101,418)
Income taxes ............................... -- --
------------ ------------
Loss from continuing operations .............. (4,295,112) (2,101,418)
------------ ------------
Loss from discontinued operations ............ (104,962) (102,377)
------------ ------------
Net loss ..................................... $ (4,400,074) $ (2,203,795)
============ ============
Net Loss Per Share - Basic and Diluted
- Continuing operations .................... $ (0.07) $ (0.04)
- Discontinued operations .................. (0.00) (0.00)
------------ ------------
- Total .................................... $ (0.07) $ (0.04)
============ ============
Weighted Average Number of Common Shares
Outstanding
- Basic and Diluted ....................... 62,518,619 50,686,749
============ ============
See notes to condensed consolidated financial statements.
4
PATRON SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED MARCH 31, 2006
(Unaudited)
SHARES OF PAR VALUE SHARES OF PAR VALUE
SERIES A SERIES A SERIES A-1 SERIES A-1 SHARES OF PAR VALUE
PREFERRED PREFERRED PREFERRED PREFERRED COMMON COMMON
STOCK STOCK STOCK STOCK STOCK STOCK
------------ ------------ ------------ ------------ ------------ ------------
BALANCE, JANUARY 1, 2006 ..... -- $ -- -- $ -- 59,348,360 $ 593,484
Amortization of deferred
stock-based compensation ... -- -- -- -- -- --
Issuance of Series A Preferred
Stock to investors ......... 893 9 -- -- -- --
Issuance of warrants in
connection with bridge
loan extension -
extension warrants ......... -- -- -- -- -- --
Conversion option penalty
incurred upon default
of Bridge Financing III .... -- -- -- -- -- --
Issuance of Series A-1
Preferred stock in
settlement of debt ......... -- -- 33,420,078 334,201 (2,950,000) (29,500)
Vested portion of stock
options .................... -- -- -- -- -- --
Net Loss ..................... -- -- -- -- -- --
------------ ------------ ------------ ------------ ------------ ------------
BALANCE MARCH 31, 2006 ....... 893 $ 9 33,420,078 $ 334,201 56,398,360 $ 563,984
============ ============ ============ ============ ============ ============
COMMON
ADDITIONAL STOCK
PAID IN REPURCHASE DEFERRED ACCUMULATED
CAPITAL OBLIGATION COMPENSATION DEFICIT TOTAL
------------ ------------ ------------ ------------ ------------
BALANCE, JANUARY 1, 2006 ..... $ 65,027,575 $ (1,300,000) $ (7,500) $(84,388,027) $(20,074,468)
Amortization of deferred
stock-based compensation ... -- -- 7,500 -- 7,500
Issuance of Series A Preferred
Stock to investors ......... 4,465,491 -- -- -- 4,465,500
Issuance of warrants in
connection with bridge
loan extension -
extension warrants ......... 48,129 -- -- -- 48,129
Conversion option penalty
incurred upon default
of Bridge Financing III .... 550,000 -- -- -- 550,000
Issuance of Series A-1
Preferred stock in
settlement of debt ......... 23,112,387 1,300,000 -- -- 24,717,088
Vested portion of stock
options .................... 173,335 -- -- -- 173,335
Net Loss ..................... -- -- -- (4,400,074) (4,400,074)
------------ ------------ ------------ ------------ ------------
BALANCE MARCH 31, 2006 ....... $ 93,376,917 $ -- $ -- $(88,788,101) $ 5,487,010
============ ============ ============ ============ ============
See notes to condensed consolidated financial statements.
5
PATRON SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
THREE MONTHS ENDED MARCH 31,
--------------------------
2006 2005
----------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss ...................................................... $(4,400,074) $(2,203,795)
----------- -----------
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization ............................... 70,796 19,525
Amortization of deferred compensation ....................... 7,500 508,500
Accretion related to warrants issued for notes payable ...... 20,909 260,965
Amortization of deferred financing costs .................... 282,129 153,520
Stock based penalty under financing arrangements ............ 2,852 369,000
Non-cash interest income .................................... -- (19,250)
Non-cash increase in interest payable to former stockholder . 48,400 --
Conversion option in connection with bridge note holders .... 550,000 --
Stock based compensation .................................... 173,335 --
Loss on issuance of preferred stock in settlement of debt ... 858,213 --
Changes in assets and liabilities:
Restricted cash escrowed to settle liabilities assumed .... (957,122) (1,388,000)
Prepaid expenses .......................................... -- 10,637
Accounts receivable ....................................... 113,945 (58,518)
Other current assets ...................................... 17,809 110,533
Accounts payable .......................................... (268,700) (325,017)
Accrued interest .......................................... 429,027 94,827
Deferred revenue .......................................... (142,072) 35,283
Expense reimbursements due to officers and shareholders ... (7,354) (94,500)
Accrued payroll and payroll related expenses .............. (311,041) (72,250)
Loss on sale of fixed assets .............................. (62) --
Other current liabilities ................................. (197,271) 31,439
Other accrued expenses .................................... -- (3,413)
----------- -----------
Total adjustments ............................................. 691,293 (366,719)
----------- -----------
NET CASH USED IN OPERATIONS - CONTINUING OPERATIONS ............. (3,708,781) (2,570,514)
NET CASH USED IN OPERATIONS - DISCONTINUED OPERATIONS ........... (31,076)
----------- -----------
NET CASH USED IN OPERATING ACTIVITIES ........................... (3,739,857) (2,570,514)
----------- -----------
CASH FLOWS USED IN INVESTING ACTIVITIES
Cash payments in purchase business combinations ............... -- (857,633)
Cash acquired in purchase business combinations ............... -- 416,397
Cash received from sale of property and equipment ............. -- --
Purchase and development of technology ........................ (211,294) --
Proceeds from sale of fixed assets ............................ 1,755 --
Purchase of fixed assets ...................................... (12,689) (32,055)
----------- -----------
NET CASH USED IN INVESTING ACTIVITIES - CONTINUING OPERATIONS ... (222,228) (473,291)
NET CASH USED IN INVESTING ACTIVITIES - DISCONTINUED OPERATIONS . (3,000) --
----------- -----------
NET CASH USED IN INVESTING ACTIVITIES ........................... (225,228) (473,291)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Expenses financed by (repaid to) officers and stockholders .... -- (225,000)
Payments on settlement of accommodation agreements ............ (125,000) --
Advances from stockholders .................................... -- 500,000
Deferred financing costs ...................................... (54,000) (316,579)
Proceeds from issuance of preferred series A stock ............ 4,285,501 --
Proceeds from issuance of bridge notes ........................ -- 3,500,000
Repayments of advances from shareholders ...................... -- (93,796)
----------- -----------
NET CASH PROVIDED BY FINANCING ACTIVITIES - CONTINUING OPERATIONS 4,106,501 3,364,625
----------- -----------
NET INCREASE IN CASH AND CASH EQUIVALENTS ....................... $ 141,416 $ 320,820
CASH AND CASH EQUIVALENTS, beginning of period .................. $ 14 $ 45,901
----------- -----------
CASH AND CASH EQUIVALENTS, end of period ........................ $ 141,430 $ 366,721
=========== ===========
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest ...................................................... 285,476 214,428
See notes to condensed consolidated financial statements.
6
PATRON SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 2006
NOTE 1 - BASIS OF INTERIM FINANCIAL STATEMENT PRESENTATION
The accompanying unaudited Condensed Consolidated Financial Statements of Patron
Systems, Inc. and subsidiaries (the "Company," "Patron," "us," or "we") have
been prepared in accordance with accounting principles generally accepted in the
United States for interim financial information and the instructions to Form
10-QSB. Accordingly, they do not include all the information and footnotes
required by accounting principles generally accepted in the United States for
complete financial statements. In the opinion of management, all adjustments
(which include only normal recurring adjustments) necessary to present fairly
the financial position, results of operations and cash flows for all periods
presented have been made. The results of operations for the three-month period
ended March 31, 2006 are not necessarily indicative of the operating results
that may be expected for the entire year ending December 31, 2006.
This form 10-QSB should be read in conjunction with the Company's 10-KSB for the
year ended December 31, 2005.
NOTE 2 - THE COMPANY
ORGANIZATION AND DESCRIPTION OF BUSINESS
Patron Systems, Inc., ("Systems") is a Delaware corporation formed in April 2002
to provide comprehensive, end-to-end information security solutions to global
corporations and government institutions.
Pursuant to an Amended and Restated Share Exchange Agreement dated October 11,
2002, Combined Professional Services ("CPS"), Systems and the stockholders of
Systems consummated a share exchange ("Share Exchange"). As a result of the
Share Exchange, the former stockholders of Systems became the majority
stockholders of CPS. Accordingly, Systems became the accounting acquirer of CPS
and the exchange was accounted for as a reverse merger and recapitalization of
Systems. CPS subsequently merged with Systems, with Systems surviving the
merger. The combined entity continued to use the name Patron Systems, Inc.
NOTE 3 - LIQUIDITY AND FINANCIAL CONDITION
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company incurred a net loss of
$4,400,074 for the three months ended March 31, 2006, which includes an
aggregate of $2,014,134 of non-cash charges including the conversion option cost
for bridge note and subordinated note holders, non-cash interest expense, the
amortization of deferred compensation and the charge for stock option based
compensation. The Company used net cash in its operating activities of
$3,739,857 during the three months ended March 31, 2006. The Company's working
capital deficiency at March 31, 2006 amounted to $5,659,898 and the Company is
continuing to experience shortages in working capital. The Company is also
involved in litigation and is being investigated by the Securities and Exchange
Commission with respect to certain of its press releases and its use of form S-8
to register shares of common stock issued to certain consultants (Note 15). The
Company cannot provide any assurance that the outcome of these matters will not
have a material adverse affect on its ability to sustain the business. These
matters raise substantial doubt about the Company's ability to continue as a
going concern. The accompanying financial statements do not include any
adjustments that may result from the outcome of this uncertainty.
The Company expects to continue incurring losses for the foreseeable future due
to the inherent uncertainty that is related to establishing the commercial
feasibility of technological products and developing a presence in new markets.
The Company's ability to successfully market its software products, grow revenue
and generate cash flows of certain businesses it acquired in 2005 is critical to
the realization of its business plan. The Company raised
7
$4,285,501 of gross proceeds ($3,946,450 net proceeds after the payment of
certain transaction expenses) in financing transactions during the three months
ended March 31, 2006. The Company used $3,739,857 of these proceeds to fund its
operations and a net of $225,228 in investing activities. On January 12, 2006,
the Company offered its creditors and claimants an agreement to receive Series
A-1 Convertible Preferred Stock, par value $0.01 per share ("Series A-1
Preferred") for amounts owed to the holders of the Company's indebtedness
(including lenders, past-due trade accounts, and employees, consultants and
other service providers with claims for fees, wages or expenses) (Note 16). As
of March 31, 2006, Creditors representing approximately 82% of the Company's
outstanding claims accepted this proposal by signing and returning to the
Company the Stock Subscription Agreement and Mutual Release. The Company is
currently unable to determine whether all of its remaining creditors will accept
its proposal or that the acceptance of such proposal will actually improve the
Company's ability to fund the further development of its business plan or
improve its operations.
The Company is currently in the process of attempting to raise additional
capital and has taken certain steps to conserve its liquidity while it continues
to integrate the businesses acquired in 2005. Although management believes that
the Company has access to capital resources, the Company has not secured any
commitments for additional financing at this time nor can the Company provide
any assurance that it will be successful in its efforts to raise additional
capital and/or successfully execute its business plan.
NOTE 4 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries, Entelagent Software Corporation, Complete
Security Solutions, Inc., LucidLine, Inc. and PILEC Disbursement Company. All
significant inter-company transactions have been eliminated.
CASH
The Company considers all highly liquid securities purchased with original
maturities of three months or less to be cash.
REVENUE RECOGNITION
The Company derives revenues from the following sources: (1) sales of computer
software, which includes new software licenses and software updates and product
support revenues and (2) services, which include internet access, back-up,
retrieval and restoration services and professional consulting services.
The Company applies the revenue recognition principles set forth under AICPA
Statement of Position ("SOP") 97-2 "Software Revenue Recognition" and Securities
and Exchange Commission Staff Accounting Bulletin ("SAB") 104 "Revenue
Recognition" with respect to its revenue. Accordingly, the Company records
revenue when (i) persuasive evidence of an arrangement exists, (ii) delivery has
occurred, (iii) the vendor's fee is fixed or determinable, and (iv)
collectability is reasonably assured.
The Company generates revenues through sales of software licenses and annual
support subscription agreements, which include access to technical support and
software updates (if and when available). Software license revenues are
generated from licensing the rights to use products directly to end-users and
through third party service providers.
Revenues from software license agreements are generally recognized upon delivery
of software to the customer. All of the Company's software sales are supported
by a written contract or other evidence of sale transaction such as a customer
purchase order. These forms of evidence clearly indicate the selling price to
the customer, shipping terms, payment terms (generally 30 days) and refund
policy, if any. The selling prices of these products are fixed at the time the
sale is consummated.
8
Revenue from post contract customer support arrangements or undelivered elements
are deferred and recognized at the time of delivery or over the period in which
the services are performed based on vendor specific objective evidence of fair
value for such undelivered elements. Vendor specific objective evidence is
typically based on the price charged when an element is sold separately or, if
an element is not sold separately, on the price established by an authorized
level of management, if it is probable that the price, once established, will
not change before market introduction. The Company uses the residual method
prescribed in SOP 98-9, "Modification of SOP 97-2, Software Revenue Recognition
With Respect to Certain Transaction" to allocate revenues to delivered elements
once it has established vendor-specific objective evidence of fair value for
such undelivered elements.
The Company provides its internet access and back-up, retrieval and restoration
services under contractual arrangements with terms ranging from 1 year to 5
years. These contracts are billed monthly, in advance, based on the
contractually stated rates. At the inception of a contract, the Company may
activate the customer's account for a contractual fee that it amortizes over the
term of the contract in accordance with Emerging Issues Task Force Issue
("EITF") 00-21, "Revenue Arrangements with Multiple Deliverables." The Company's
standard contracts are automatically renewable by the customer unless terminated
on 30 days written notice. Early termination of the contract generally results
in an early termination fee equal to the lesser of six months of service or the
remaining term of the contract.
Professional consulting services are billed based on the number of hours of
consultant services provided and the hourly billing rates. The Company
recognizes revenue under these arrangements as the service is performed.
Revenue from the resale of third-party hardware and software is recognized upon
delivery provided there are no further obligations to install or modify the
hardware or software. Revenue from the sales of hardware/software is recorded at
the gross amount of the sale when the contract satisfies the requirements of
EITF 99-19 "Reporting Revenue Gross as a Principal versus Net as Agent."
BUSINESS COMBINATIONS
In accordance with business combination accounting, we allocate the purchase
price of acquired companies to the tangible and intangible assets acquired,
liabilities assumed, as well as in-process research and development based on
their estimated fair values. We engaged a third-party appraisal firm to assist
management in determining the fair values of certain assets acquired and
liabilities assumed. Such a valuation requires management to make significant
estimates and assumptions, especially with respect to intangible assets.
Management makes estimates of fair value based upon assumptions believed to be
reasonable. These estimates are based on historical experience and information
obtained from the management of the acquired companies. Critical estimates in
valuing certain of the intangible assets include but are not limited to: future
expected cash flows from license sales, maintenance agreements, customer
contracts and acquired developed technologies; expected costs to develop the
in-process research and development into commercially viable products; the
acquired company's brand awareness and market position, as well as assumptions
about the period of time the acquired brand will continue to be used in the
combined company's product portfolio; and discount rates. These estimates are
inherently uncertain and unpredictable. Assumptions may be incomplete or
inaccurate, and unanticipated events and circumstances may occur which may
affect the accuracy or validity of such assumptions, estimates or actual
results.
ACCOUNTS RECEIVABLE
The Company adjusts its accounts receivable balances that it deems to be
uncollectible. The allowance for doubtful accounts is the Company's best
estimate of the amount of probable credit losses in the Company's existing
accounts receivable. The Company reviews its allowance for doubtful accounts on
a monthly basis and determines the allowance based on an analysis of its past
due accounts. All past due balances that are over 90 days are reviewed
individually for collectability. Account balances are charged off against the
allowance after all means of collection have been exhausted and the potential
for recovery is considered remote.
9
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost. Depreciation is computed using the
straight-line method over the estimated useful lives of the assets (generally
three to five years). Maintenance and repairs are charged to expense as
incurred; cost of major additions and betterments are capitalized. When property
and equipment is sold or otherwise disposed of, the cost and related accumulated
depreciation are eliminated from the accounts and any resulting gains or losses
are reflected in the statement of operations in the period of disposal.
GOODWILL AND INTANGIBLE ASSETS
We account for Goodwill and Intangible Assets in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 141, "Business Combinations" and
SFAS No. 142, "Goodwill and Other Intangible Assets." Under SFAS No. 142,
goodwill and intangibles that are deemed to have indefinite lives are no longer
amortized but, instead, are to be reviewed at least annually for impairment.
Application of the goodwill impairment test requires judgment, including the
identification of reporting units, assigning assets and liabilities to reporting
units, assigning goodwill to reporting units, and determining the fair value.
Significant judgments required to estimate the fair value of reporting units
include estimating future cash flows, determining appropriate discount rates and
other assumptions. Changes in these estimates and assumptions could materially
affect the determination of fair value and/or goodwill impairment for each
reporting unit. We have recorded goodwill in connection with the Company's
acquisitions described in Note 5 amounting to $22,440,412. The Company's annual
impairment review of goodwill resulted in goodwill impairment charges totaling
$12,929,696 for the year ended December 31, 2005 (Note 5) resulting in
$9,510,716 in goodwill at March 31, 2006. Intangible assets continue to be
amortized over their estimated useful lives.
LONG LIVED ASSETS
The Company periodically reviews the carrying values of its long lived assets in
accordance with SFAS 144, "Long Lived Assets" when events or changes in
circumstances would indicate that it is more likely than not that their carrying
values may exceed their realizable value and records impairment charges when
necessary. The Company's review of the carrying values of its long lived assets
resulted in an impairment charge of $1,705,455 for the year ended December 31,
2005 (Note 8).
USE OF ESTIMATES IN PREPARING FINANCIAL STATEMENTS
In preparing financial statements in conformity with accounting principles
generally accepted in the United States of America, management is required to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date
of the financial statements and revenue and expenses during the reporting
period. The Company's significant estimates principally include the valuation of
its intangible assets and goodwill and accrued liability for the Company's
estimate of the fair value of preferred stock issued upon the settlement of the
creditor and claimant liabilities restructuring in March 2006 (Note 16). Actual
results could differ from those estimates.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts reported in the balance sheet for cash, accounts
receivable, accounts payable accrued expenses, advances from stockholders and
all note obligations classified as current liabilities approximate their fair
values based on the short-term maturity of these instruments. The carrying
amounts of the Company's convertible and subordinated note obligations, stock
repurchase obligation and common stock subject to put right approximate fair
value as such instruments feature contractual interest rates that are consistent
with current market rates of interest or have effective yields that are
consistent with instruments of similar risk, when taken together with any equity
instruments concurrently issued to holders.
10
CONVERTIBLE PREFERRED STOCK
The Company accounts for conversion options embedded in convertible preferred
stock in accordance with Statement of Financial Accounting Standard ("SFAS) No.
133 "Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133")
and Emerging Issues Task Force Issue ("EITF") 00-19 "Accounting for Derivative
Financial Instruments Indexed to, and Potentially Settled in, a Company's Own
Stock" ("EITF 00-19"). SFAS 133 generally requires companies to bifurcate
conversion options embedded in convertible notes and preferred shares from their
host instruments and to account for them as free standing derivative financial
instruments in accordance with EITF 00-19. SFAS 133 provides for an exception to
this rule when convertible notes and mandatorily redeemable preferred shares, as
host instruments, are deemed to be conventional as that term is described in the
implementation guidance provided in paragraph 61 (k) of Appendix A to SFAS 133
and further clarified in EITF 05-2 "The Meaning of Conventional Convertible Debt
Instrument" in Issue No. 00-19.
SFAS 133 provides for an additional exception to this rule when the economic
characteristics and risks of the embedded derivative instrument are clearly and
closely related to the economic characteristics and risks of the host
instrument.
The Company determined that the conversion option embedded in its Series A
Convertible Preferred stock, par value $0.01 per share ("Series A Preferred") is
not a free standing derivative in accordance with the implementation guidance
provided in paragraph 61 (l) of Appendix A to SFAS 133.
STOCK BASED COMPENSATION
Prior to January 1, 2006, the Company accounted for employee stock transactions
in accordance with Accounting Principles Board ("APB") Opinion No. 25
"Accounting for Stock Issued to Employees." The Company applied the proforma
disclosure requirements of SFAS No. 123 "Accounting for Stock-Based
Compensation."
Effective January 1, 2006, the Company adopted SFAS No. 123R "Share Based
Payment". This statement is a revision of SFAS Statement No. 123, and supersedes
APB Opinion No. 25, and its related implementation guidance. SFAS 123R addresses
all forms of share based payment ("SBP") awards including shares issued under
employee stock purchase plans, stock options, restricted stock and stock
appreciation rights. Under SFAS 123R, SBP awards result in a cost that will be
measured at fair value on the awards' grant date, based on the estimated number
of awards that are expected to vest that will result in a charge to operations.
Consequently during the three months ended March 31, 2006, the Company
recognized $173,335 in expenses, which represents the fair value of stock
options that have vested during the period ended March 31, 2006.
For the three months ended March 31, 2005, the Company applied APB Opinion No.
25, "Accounting for Stock Issued to Employees." As required under SFAS No. 148,
"Accounting for Stock-based Compensation - Transition and Disclosure," the
following table presents pro-forma net income and basic and diluted earnings per
share as if the fair value-based method had been applied to all awards during
that period.
THREE MONTHS
ENDED
MARCH 31,
2005
-----------
Net Loss ...................................................... $(2,203,795)
Stock-based employee compensation cost, under fair
value accounting ........................................... (185,278)
-----------
Pro-forma net loss under Fair Value Method .................... $(2,389,073)
-----------
Loss per share
Basic and Diluted .......................................... $ (0.04)
Per share stock-based employee compensation cost, under
fair value accounting
Pro-forma loss per share, Basic and Diluted ................... $ (0.05)
11
COMMON STOCK PURCHASE WARRANTS
The Company accounts for the issuance of common stock purchase warrants issued
with registration rights in accordance with the provisions of EITF 00-19,
"Accounting for Derivative Financial Instruments Indexed to, and Potentially
Settled in, a Company's Own Stock."
Based on the provisions of EITF 00-19, the Company classifies as equity any
contracts that (i) require physical settlement or net-share settlement or (ii)
gives the company a choice of net-cash settlement or settlement in its own
shares (physical settlement or net-share settlement). The Company classifies as
assets or liabilities any contracts that (i) require net-cash settlement
(including a requirement to net cash settle the contract if an event occurs and
if that event is outside the control of the company) or (ii) give the
counterparty a choice of net-cash settlement or settlement in shares (physical
settlement or net-share settlement).
INCOME TAXES
The Company accounts for income taxes under SFAS No. 109, "Accounting for Income
Taxes". SFAS No. 109 requires the recognition of deferred tax assets and
liabilities for both the expected impact of differences between the financial
statements and tax basis of assets and liabilities and for the expected future
tax benefit to be derived from tax loss and tax credit carry forwards. SFAS No.
109 additionally requires the establishment of a valuation allowance to reflect
the likelihood of realization of deferred tax assets.
NET LOSS PER SHARE
Basic net loss per common share is computed by dividing net loss by the
weighted-average number of common shares outstanding during the period. Diluted
net loss per common share also includes common stock equivalents outstanding
during the period if dilutive. Diluted net loss per common share has been
computed by dividing net loss by the weighted-average number of common shares
outstanding without an assumed increase in common shares outstanding for common
stock equivalents; as such common stock equivalents are anti-dilutive.
As a result of the consummation of the Share Exchange described in Note 1, the
Company included 1,200,000 stock options with an exercise price of $.01 per
share that it issued to certain employees during 2002 in its calculation of
weighted-average number of common shares outstanding for all periods presented.
Net loss per common share excludes the following outstanding options, warrants
and preferred stock as their effect would be anti-dilutive:
MARCH 31
----------------------------
2006 2005
----------- ----------
Options .................... 13,137,233 7,125,000
Warrants ................... 38,656,765 4,665,000
Series A Preferred Stock ... 60,256,264 --
Series A-1 Preferred Stock . 322,157,348 --
----------- ----------
434,207,610 11,790,000
=========== ==========
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In December 2004, the FASB issued SFAS No. 153, "Exchanges of Non-monetary
Assets" (SFAS 153). SFAS 153 amends APB Opinion No. 29 to eliminate the
exception for non-monetary exchanges of similar productive assets and replaces
it with a general exception for exchanges of non-monetary assets that do not
have commercial substance. A non-monetary exchange has commercial substance if
the future cash flows of the entity are expected to change significantly as a
result of the exchange. The provisions of SFAS 153 are effective for
non-monetary asset exchanges occurring in fiscal periods beginning after June
15, 2005. Earlier application is permitted for non-monetary asset exchanges
occurring in fiscal periods beginning after December 16, 2004. The provisions of
this statement are intended be applied prospectively. The adoption of this
pronouncement did not have a material effect on the Company's financial
statements.
12
EITF Issue No. 04-8, "The Effect of Contingently Convertible Instruments on
Diluted Earnings per Share" reached a consensus that contingently convertible
instruments, such as contingently convertible debt, contingently convertible
preferred stock, and other such securities should be included in diluted
earnings per share (if dilutive) regardless of whether the market price trigger
has been met. The consensus became effective for reporting periods ending after
December 15, 2004. The adoption of this pronouncement did not have a material
effect on the Company's financial statements.
In May 2005, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards No. 154, "Accounting Changes and Error
Corrections-a replacement of APB Opinion No. 20 and FASB Statement No. 3" ("SFAS
154"). This Statement replaces APB Opinion No. 20, Accounting Changes, and FASB
Statement No. 3, Reporting Accounting Changes in Interim Financial Statements,
and changes the requirements for the accounting for and reporting of a change in
accounting principle. This Statement applies to all voluntary changes in
accounting principle. It also applies to changes required by an accounting
pronouncement in the unusual instance that the pronouncement does not include
specific transition provisions. When a pronouncement includes specific
transition provisions, those provisions should be followed.
APB Opinion No. 20 previously required that most voluntary changes in accounting
principle be recognized by including in net income of the period of the change
the cumulative effect of changing to the new accounting principle. This
Statement requires retrospective application to prior periods' financial
statements of changes in accounting principle, unless it is impracticable to
determine either the period-specific effects or the cumulative effect of the
change. When it is impracticable to determine the period-specific effects of an
accounting change on one or more individual prior periods presented, this
Statement requires that the new accounting principle be applied to the balances
of assets and liabilities as of the beginning of the earliest period for which
retrospective application is practicable and that a corresponding adjustment be
made to the opening balance of retained earnings (or other appropriate
components of equity or net assets in the statement of financial position) for
that period rather than being reported in an income statement. When it is
impracticable to determine the cumulative effect of applying a change in
accounting principle to all prior periods, this Statement requires that the new
accounting principle be applied as if it were adopted prospectively from the
earliest date practicable. This Statement is effective for accounting changes
and corrections of errors made in fiscal years beginning after December 15,
2005. The adoption of this pronouncement did not have a material effect on the
Company's financial statements.
On June 29, 2005, the EITF ratified Issue No. 05-2, "The Meaning of
`Conventional Convertible Debt Instrument' in EITF Issue No. 00-19, `Accounting
for Derivative Financial Instruments Indexed to, and Potentially Settled in, a
Company's Own Stock.'" EITF Issue 05-2 provides guidance on determining whether
a convertible debt instrument is "conventional" for the purpose of determining
when an issuer is required to bifurcate a conversion option that is embedded in
convertible debt in accordance with SFAS 133. Issue No. 05-2 is effective for
new instruments entered into and instruments modified in reporting periods
beginning after June 29, 2005. The adoption of this pronouncement did not have a
material effect on the Company's financial statements.
In September 2005, the EITF ratified Issue No. 05-4, "The Effect of a Liquidated
Damages Clause on a Freestanding Financial Instrument Subject to EITF Issue No.
00-19, `Accounting for Derivative Financial Instruments Indexed to, and
Potentially Settled in, a Company's Own Stock.'" EITF 05-4 provides guidance to
issuers as to how to account for registration rights agreements that require an
issuer to use its "best efforts" to file a registration statement for the resale
of equity instruments and have it declared effective by the end of a specified
grace period and, if applicable, maintain the effectiveness of the registration
statement for a period of time or pay a liquidated damage penalty to the
investor. The Company is currently in the process of evaluating the effect that
the adoption of this pronouncement may have on its financial statements.
In September 2005, the FASB ratified the Emerging Issues Task Force's ("EITF")
Issue No. 05-7, "Accounting for Modifications to Conversion Options Embedded in
Debt Instruments and Related Issues," which addresses whether a modification to
a conversion option that changes its fair value affects the recognition of
interest expense for the associated debt instrument after the modification and
whether a borrower should recognize a beneficial conversion feature, not a debt
extinguishment if a debt modification increases the intrinsic value of the debt
(for example, the modification reduces the conversion price of the debt). This
issue is effective for future modifications of debt instruments beginning in the
first interim or annual reporting period beginning after December 15, 2005. The
adoption of this pronouncement did not have a material effect on the Company's
financial statements.
13
In September 2005, the FASB also ratified the EITF's Issue No. 05-8, "Income Tax
Consequences of Issuing Convertible Debt with a Beneficial Conversion Feature,"
which discusses whether the issuance of convertible debt with a beneficial
conversion feature results in a basis difference arising from the intrinsic
value of the beneficial conversion feature on the commitment date (which is
recorded in the stockholders' equity for book purposes, but as a liability for
income tax purposes), and, if so, whether that basis difference is a temporary
difference under FASB Statement No. 109, "Accounting for Income Taxes." This
Issue should be applied by retrospective application pursuant to Statement 154
to all instruments with a beneficial conversion feature accounted for under
Issue 00-27 included in financial statements for reporting periods beginning
after December 15, 2005. The adoption of this pronouncement did not have a
material effect on the Company's financial statements.
In February 2006, the FASB issued SFAS No. 155, "Accounting for Certain Hybrid
Financial Instruments - an amendment of FASB Statements No. 133 and 150." SFAS
No. 155 (a) permits fair value remeasurement for any hybrid financial instrument
that contains an embedded derivative that otherwise would require bifurcation,
(b) clarifies that certain instruments are not subject to the requirements of
SFAS 133, (c) establishes a requirement to evaluate interests in securitized
financial assets to identify interests that may contain an embedded derivative
requiring bifurcation, (d) clarifies what may be an embedded derivative for
certain concentrations of credit risk and (e) amends SFAS 140 to eliminate
certain prohibitions related to derivatives on a qualifying special-purpose
entity. SFAS 155 is applicable to new or modified financial instruments in
fiscal years beginning after September 15, 2006, though the provisions related
to fair value accounting for hybrid financial instruments can also be applied to
existing instruments. Early adoption, as of the beginning of an entity's fiscal
year, is also permitted, provided interim financial statements have not yet been
issued. We are currently evaluating the potential impact, if any, that the
adoption of SFAS 155 will have on our consolidated financial statements.
In March 2006, the FASB issued Statement of Financial Accounting Standards
("SFAS") No. 156, Accounting for Servicing of Financial Assets (SFAS No. 156).
SFAS No. 156 amends SFAS No. 140, "Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities," to require all separately
recognized servicing assets and servicing liabilities to be initially measured
at fair value, if practicable. SFAS No. 156 also permits servicers to
subsequently measure each separate class of servicing assets and liabilities at
fair value rather than at the lower of cost or market. For those companies that
elect to measure their servicing assets and liabilities at fair value, SFAS No.
156 requires the difference between the carrying value and fair value at the
date of adoption to be recognized as a cumulative effect adjustment to retained
earnings as of the beginning of the fiscal year in which the election is made.
SFAS No. 156 is effective for the first fiscal year beginning after September
15, 2006. We are currently evaluating the potential impact, if any, that the
adoption of SFAS 156 will have on our consolidated financial statements.
Other accounting standards that have been issued or proposed by the FASB or
other standards-setting bodies that do not require adoption until a future date
are not expected to have a material impact on the consolidated financial
statements upon adoption.
NOTE 5 - BUSINESS COMBINATIONS
On February 25, 2005, the Company acquired Complete Security Solutions, Inc.
("CSSI") and LucidLine, Inc. ("LucidLine") in separate merger transactions.
Additionally, on March 30, 2005, the Company acquired Entelagent Software Corp.
("Entelagent") in a merger transaction. The Company accounted for these business
combinations in accordance with the provisions of SFAS 141 "Accounting for
Business Combinations."
In connection with these three merger transactions, the Company paid, $200,000
in cash, 14,900,000 shares of common stock with a fair market value of
$12,665,000, subordinated promissory notes in the aggregate principal amount of
$4,500,000, warrants to purchase up to 2,250,000 shares of common stock which
were valued at $1,912,500. Direct expenses incurred by the Company to complete
these transactions amounted to $912,663. The total purchase price for the three
companies amounted to $20,190,133.
14
CSSI LUCIDLINE ENTELAGENT TOTAL
----------- ----------- ----------- -----------
Cash ........................ $ -- $ 200,000 $ -- $ 200,000
Common Stock ................ 6,375,000 3,740,000 2,550,000 12,665,000
Subordinated promissory notes 4,500,000 -- -- 4,500,000
Common stock warrants ....... 1,912,500 -- -- 1,912,500
Transaction expenses ........ 398,128 154,611 359,894 912,633
----------- ----------- ----------- -----------
Total Purchase Price ..... $13,185,628 $ 4,094,611 $ 2,909,894 $20,190,133
=========== =========== =========== ===========
The allocation of the purchase price was based upon a valuation study performed
by an independent outside appraisal firm. The purchase price allocation resulted
in the allocation of $3,101,000 to intangible assets, including $2,570,000 to
developed technology and $190,000 to in-process research and development.
Additionally, the purchase price allocation resulted in the allocation of
$22,440,412 to goodwill.
The Company performed its annual impairment test of goodwill at its designated
valuation date of December 31, 2005 in accordance with SFAS 142. As a result of
these tests, the Company determined that the recoverable amount of goodwill with
respect to its business amounted to $9,510,716. Accordingly, the Company
recorded a goodwill impairment charge in the amount of $12,929,696 for the year
ended December 31, 2005. Additionally, after reevaluating the resources
available to the Company, the strategic direction of the business as well as the
revised business plans and financial projections, the Company, during the
quarter ended December 31, 2005, recorded a $1,705,455 charge for the impairment
of the developed technology assets acquired in the CSSI and Entelagent
acquisitions. The remaining amount of goodwill and intangible assets is
presented net of such impairment charges recorded during the year ended December
31, 2005.
NOTE 6 - OTHER CURRENT ASSETS
Other current assets consist of the following:
MARCH 31
2006
----------
Employee receivables ........................... $ 75,877
Prepaid expenses ............................... 36,443
Deposits ....................................... 23,139
----------
Other current assets ......................... $ 135,459
==========
NOTE 7 - PROPERTY AND EQUIPMENT
MARCH 31
2006
----------
Computers ...................................... $ 107,897
Furniture and Fixtures ......................... 32,887
Leasehold improvements ......................... 4,490
----------
sub-total .................................. 145,274
less: accumulated depreciation ................. (43,730)
----------
Property and equipment, net ................ $ 101,544
==========
Depreciation expense amounted to $20,664 and $295 for the three months March 31,
2006 and March 31, 2005, respectively.
15
NOTE 8 - INTANGIBLE ASSETS
The components of intangible assets as of March 31, 2006 are set forth in the
following table:
MARCH 31,
2006
-----------
Developed technology ....................... $ 2,570,000
Customer relationships ..................... 180,000
Trademarks and tradenames .................. 161,000
In-process research and development ........ 735,681
-----------
3,646,681
Amortization and impairment charge ......... (2,260,964)
-----------
Intangible assets, net .................. $ 1,385,717
===========
During the year ended December 31, 2005, the Company recorded a $1,705,455
charge for the impairment of the developed technology assets acquired in the
CSSI and Entelagent acquisitions (Note 5).
The Company classifies amortization of developed technology as a component of
cost of sales and amortization of customer relationship and trademarks and
tradenames as a component of general and administrative expense. Amortization
expense amounted to $58,336 for the three months ended March 31, 2006, including
$27,522 classified in cost of sales.
NOTE 9 - DEMAND NOTES PAYABLE
Through December 31, 2004, the Company borrowed an aggregate amount of $695,000
from several unrelated parties. At March 31, 2006, the outstanding balance on
these notes amounted to $135,000. These notes are payable on demand and bear
interest at the rate of 10% per annum. Interest expense on these notes amounted
to $17,375 for each of the three months ended March 31, 2006 and 2005,
respectively.
Other demand notes at March 31, 2006 total $336,056 and include a note payable
to Lok Technology in the amount of $312,556 which is secured by Entelagent's
accounts receivable and bears interest at 15% per annum. Interest on these other
demand notes amounted to $13,433 for the three months ended March 31, 2006 and
$0 for the three months ended March 30, 2005.
As of March 31, 2006, $585,000 of the Demand Notes have been surrendered as
payment for Series A-1 Preferred stock as part of the creditor and claimant
liabilities restructuring (Note 16). Subsequent to March 31, 2006, $169,212 of
the Demand Notes have been surrendered as payment for Series A-1 Preferred stock
as part of the creditor and claimant liabilities restructuring (Note 16).
NOTE 10 - BRIDGE NOTES PAYABLE
INTERIM BRIDGE FINANCING I
On February 28, 2005, the Company completed a $3,500,000 financing (the "Interim
Bridge Financing I") through the issuance of 10% Senior Convertible Promissory
Notes (the "Bridge I Notes") and warrants to purchase up to 1,750,000 shares of
the Company's common stock ("Bridge I Warrants"). The warrants have a term of 5
years and an exercise price of $0.70 per share. The aggregate fair value of the
Bridge I Warrants amounts to $1,487,500. Prior to final maturity, the Bridge I
Notes may be converted into securities that would be issuable at the first
closing of a subsequent financing by the Company, for such number of offered
securities that could be purchased for the principal amount being converted. The
Bridge I Notes had an initial term of 120 days (due on June 28, 2005) with
16
interest at a contractual rate of 10% per annum and featured an option for the
Company to extend the term for an additional 60 days to August 27, 2005.
In accordance with APB 14, "Accounting for Convertible Debt and Debt Issued with
Stock Purchase Warrants," the Company allocated $2,456,140 of the proceeds to
the Bridge I Notes and $1,043,860 of proceeds to the Bridge I Warrants. The
difference between the carrying amount of the Bridge I Notes and their
contractual redemption amount was accreted as interest expense to June 28, 2005,
their earliest date of redemption.
On June 28, 2005, the Company elected to extend the contractual maturity date of
the Bridge I Notes for an additional 60 days to August 27, 2005, which caused
the contractual interest rate to increase to 12% per annum. In addition, the
Company was required to issue the 1,750,000 additional warrants (the "Bridge I
Extension Warrants") to purchase such number of shares of common stock equal to
1/2 of a share for each $1.00 of principal amount outstanding. The Bridge I
Extension Warrants have a term of 5 years and an exercise price of $0.70 per
share.
The Company did not redeem the Bridge I Notes on August 27, 2005 and, as a
result, the notes became automatically convertible into 3.84 shares of common
stock for each $1 of principal then outstanding in accordance with the original
note agreement. Accordingly, the Company recorded a charge of $3,500,000 in 2006
based upon the intrinsic value of this conversion option measured at the
original issuance date of the note in accordance with EITF 00-27. The Company
has agreed to file with the SEC, a registration statement for the resale of the
restricted shares of the Company's common stock issuable upon exercise of the
conversion option that would be issued in this transaction, on a best efforts
basis.
Contractual interest expense on the Bridge I Notes amounted to $103,562 and
$29,167 for the three months ended March 31, 2006 and 2005, respectively, and is
included as a component of interest expense in the accompanying statement of
operations.
As of March 31, 2006, $3,155,025 of the Bridge I Notes have been surrendered as
payment for Series A-1 Preferred stock as part of the creditor and claimant
liabilities restructuring (Note 16).
INTERIM BRIDGE FINANCING II
On June 6, 2005, the Company completed a $2,543,000 financing (the "Interim
Bridge Financing II") through the issuance of (i) 10% Junior Convertible
Promissory Notes (the "Bridge II Notes") and (ii) warrants to purchase up to
1,271,500 shares of common stock (the "Bridge II Warrants"). The warrants have a
term of 5 years and an exercise price of $0.60 per share. The aggregate fair
value of the Bridge II Warrants amounts to $673,895. Prior to maturity, the
Junior Convertible Promissory Notes may be converted into the securities offered
by the Company at the first closing of a subsequent financing for the Company,
for such number of offered securities as could be purchased for the principal
amount being converted.
In accordance with APB 14, the Company allocated $2,010,277 of the proceeds to
the Bridge II Notes and $532,723 of proceeds to the Bridge II Warrants. The
difference between the carrying amount of the Bridge II Notes and their
contractual redemption amount is being accreted as interest expense to October
3, 2005, their earliest date of redemption.
The Bridge II Notes have an initial term of 120 days (due on various dates
beginning October 3, 2005) with interest at 10% per annum and feature an option
for the Company to extend the term for an additional 60 days to various dates
beginning December 2, 2005. Upon the extension of the maturity date of the
Bridge II Notes, the contractual interest rate would increase to 12% per annum,
and the Company would be required to issue warrants (the "Bridge II Extension
Warrants") to purchase such number of shares of the Company's common stock equal
to one-half of a share for each $1.00 of principal then outstanding. The Bridge
II Extension Warrants issuable upon extension of the maturity date of the Junior
Convertible Promissory notes feature a term of 5 years and an exercise price of
$0.60 per share. In addition, if the Bridge II Notes are not paid in full on or
before the extended maturity date, each note becomes convertible into 3.84
shares of the Company's common stock for each $1.00 of principal then
outstanding. The intrinsic value of this conversion option measured at the
issuance date of the notes amounts to $2,543,000 and would be recognized as
interest expense in accordance with EITF 00-27. The Company has agreed to file
with the
17
SEC, a registration statement for the resale of the restricted shares of its
common stock issuable upon exercise of the conversion option that would be
issuable in this transaction, on a best efforts basis.
The Company sold these securities to seven accredited investors introduced by
Laidlaw, placement agent in the Interim Bridge Financing II. The Company
incurred $386,027 of fees in connection with this transaction including a cash
fee of $305,160 and $80,867 for the fair value of warrants to purchase 152,580
shares of the Company's common stock at an exercise price of $0.60 per share.
The Company elected to extend the due dates of these notes by an additional 60
days to various dates beginning December 2, 2005.
Contractual interest expense on the Bridge II Notes amounted to $75,245 for the
three months ended March 31, 2006 and is included as a component of interest
expense in the accompanying statement of operations.
As of March 31, 2006, $1,343,000 of the Bridge II Notes have been surrendered as
payment for Series A-1 Preferred stock as part of the creditor and claimant
liabilities restructuring (Note 16).
INTERIM BRIDGE FINANCING III
Beginning on July 1, 2005, and continuing through December 31, 2005, the Company
completed, through 12 separate fundings, a $5,234,000 financing (the "Interim
Bridge Financing III") through the issuance of (i) 10% Junior Convertible
Promissory Notes (the "Bridge III Notes") and (ii) warrants to purchase up to
2,617,000 shares of common stock (the "Bridge III Warrants"). The warrants have
a term of 5 years and an exercise price of $0.60 per share. Prior to maturity,
the Junior Convertible Promissory Notes may be converted into the securities
offered by the Company at the first closing of a subsequent financing for the
Company, for such number of offered securities as could be purchased for the
principal amount being converted.
In accordance with APB 14, the Company allocated $4,645,544 of the proceeds to
the Bridge III Notes and $587,595 of proceeds to the Bridge III Warrants. The
difference between the carrying amount of the Bridge III Notes and their
contractual redemption amount is being accreted as interest expense to various
dates from November 1, 2005, their earliest date of redemption. Accretion of the
aforementioned discount amounted to $20,909 for the three months ended March 31,
2006 and is included as a component of interest expense in the accompanying
statement of operations.
The Bridge III Notes have an initial term of 120 days (due on various dates
beginning October 28, 2005) with interest at 10% per annum and feature an option
for the Company to extend the term for an additional 60 days to various dates
beginning December 28, 2005. Upon the extension of the maturity date of the
Bridge III Notes, the contractual interest rate would increase to 12% per annum,
and the Company would be required to issue warrants (the "Bridge III Extension
Warrants") to purchase such number of shares of the Company's common stock equal
to one-half of a share for each $1.00 of principal then outstanding. The Bridge
III Extension Warrants issuable upon extension of the maturity date of the
Junior Convertible Promissory Notes feature a term of 5 years and an exercise
price of $0.60 per share. In addition, if the Bridge III Notes are not paid in
full on or before the extended maturity date, each note becomes convertible into
3.84 shares of the Company's common stock for each $1.00 of principal then
outstanding. The intrinsic value of this conversion option measured at the
issuance date of the notes amounts to $5,234,000 and would be recognized as
interest expense in accordance with EITF 00-27. The Company has agreed to file
with the SEC, a registration statement for the resale of the restricted shares
of its common stock issuable upon exercise of the conversion option that would
be issuable in this transaction, on a best efforts basis.
Beginning on October 29, 2005, the Company elected to extend the contractual
maturity date of the various Bridge III Notes for an additional 60 days to
various dates beginning December 28, 2005, which caused the contractual interest
rate to increase to 12% per annum. In addition, during the three month ended
March 31, 2006, the Company was required to issue 1,197,500 additional warrants
(the "Bridge III Extension Warrants"). The aggregate fair value of the warrants,
which amounted to $48,129 was recorded as a deferred financing cost and was
being amortized over the 60-day extension period or until March 27, 2006 when
the Bridge III Notes were surrendered as payment for the Series A-1 Preferred
stock under the creditor and claimant liabilities restructuring The Bridge III
Extension Warrants have a term of 5 years and an exercise price of $0.60 per
share.
18
The Company did not redeem the Bridge III Notes beginning on December 28, 2005
and, as a result, the notes became automatically convertible into 3.84 shares of
common stock for each $1 of principal then outstanding in accordance with the
original note agreement. This amounts to a total of 2,112,000 shares during the
three months ended of March 31, 2006. Accordingly, the Company recorded a charge
of $550,000, in the three months ended March 31, 2006, based upon the intrinsic
value of this conversion option measured at the original issuance date of the
notes in accordance with EITF 00-27. With the surrender of the Bridge III Notes
in payment for Series A-1 Preferred stock under the creditor and claimant
liabilities restructuring, these conversion options are no longer exercisable
and have been cancelled.
Contractual interest expense on the Bridge III Notes amounted to $144,036 for
the three months ended March 31, 2006 and is included as a component of interest
expense in the accompanying statement of operations.
The Company sold these securities to Apex, Northwestern, and Advanced Equities.
Funding for the Bridge III Notes included the conversion of $1,650,000 of
stockholder advances made during the period March 30, 2005 to June 30, 2005 into
Bridge III Notes.
As of March 31, 2006, all of the Bridge III Notes have been surrendered as
payment for Series A-1 Preferred stock as part of the creditor and claimant
liabilities restructuring (Note 16).
2006 BRIDGE NOTES
On January 18, 2006, the Company completed a financing of approximately $540,000
in additional gross funds (the "2006 Bridge Note Financing") through the
issuance of Subordinated Convertible Promissory Notes (the "2006 Bridge Notes")
in the amount of $720,001. The 2006 Bridge Note agreement provided for these
notes to automatically convert into the same securities (consisting of shares of
Series A Preferred stock and warrants to purchase shares of the Company's common
stock) offered by the Company in connection with its Series A Preferred
Financing. On March 27, 2006 (the date of the first closing of the Series A
Preferred Financing), the 2006 Bridge Notes were converted into 7.2 Units in the
Series A Preferred Financing described below. The $180,000 difference between
the gross proceeds received upon the original issuance of the notes and the
redemption amount was recorded as an original issuance discount that was fully
expensed during the three months ended March 31, 2006.
Additionally, the Company paid Laidlaw & Company (UK) Ltd. (Laidlaw), as
placement agent in the transaction, a fee of $54,000 in conjunction with the
2006 Bridge Note Financing . This fee was fully amortized and recognized as
interest expense during the three months ending March 31, 2006.
NOTE 11 - RELATED PARTY TRANSACTIONS
EXPENSE REIMBURSEMENTS DUE TO OFFICERS AND STOCKHOLDERS
Certain stockholders and officers of the Company have paid expenses on the
Company's behalf since its inception, of which $166,183 remains outstanding at
March 31, 2006. The amounts payable to such officers and stockholders are due on
demand. The balance due under these arrangements is included in the liabilities
that the Company has offered to settle under the creditor and claimant
liabilities restructuring described in Note 16. Subsequent to March 31, 2006,
$13,501 of this amount has been surrendered as payment for Series A-1 Preferred
stock under the creditor and claimant liabilities restructuring.
NOTES PAYABLE TO OFFICERS AND STOCKHOLDERS
Notes payable to officers and stockholders which amount to 235,712 bear interest
at 10% per annum and are due on demand. Interest expense on these notes amounted
to $4,725 for the three months ended March 31, 2006. The balance due under these
notes is included in the liabilities that the Company has offered to settle
under the creditor and claimant liabilities restructuring described in Note 16.
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CONSULTING AGREEMENT PAYABLE
On June 8, 2005, the Company negotiated a settlement regarding a consulting
agreement payable with a related party. The terms of the settlement agreement
terminated the prior agreement and reduced the remaining payments due under the
contract to $150,000 including a $50,000 payment that was made upon the
execution of the agreement and two additional $50,000 payments including one to
be made upon the completion of a follow-on-financing by the Company and one not
later than September 30, 2005. The $150,000 reduction in payments was recorded
as a reduction of general and administrative expense during the quarter ended
June 30, 2005. Additionally, the settlement agreement terminated an obligation
for the Company to issue 100,000 shares of unrestricted stock. The stock
issuable under this commitment was recorded in 2004 as common stock issued in
lieu of cash for services in the amount of $78,900. The rescission of the stock
issuable under this arrangement resulted in an additional reduction of $78,900
in general and administrative expenses during the year ended December, 31, 2005.
The payment due on September 30, 2005 was not made by the Company. The $100,000
balance due under this arrangement has been surrendered as payment for Series
A-1 Preferred stock under the creditor and claimant liabilities restructuring
described in Note 16.
NOTES PAYABLE (TO CREDITORS OF ACQUIRED BUSINESS)
The notes issued to creditors of Entelagent described in Note 5, include
$1,538,129 payable to related parties for settlement of accrued payroll, notes
payable and expense reimbursements at March 31, 2006. Aggregate interest expense
on these notes amounted to $51,111 and $0 for the three months ended March 31,
2006 and 2005, respectively. The balance due under these notes is included in
the liabilities that the Company has offered to settle under the creditor and
claimant liabilities restructuring described in Note 16.
During the three months ended March 31, 2006, $812,002 of the notes payable to
creditors of acquired business was surrendered as payment for Series A-1
Preferred stock under the creditor and claimant liabilities restructuring.
Subsequent to March 31, 2006, an additional $983,928 has been surrendered as
payment for Series A-1 Preferred stock under the creditor and claimant
liabilities restructuring.
NOTE 12 - OTHER CURRENT LIABILITIES
Other current liabilities principally consists of $445,778 of accrued payroll
and sales tax liabilities and estimated penalties that the Company assumed in
its acquisition of Entelagent (Note 5).
NOTE 13 - DEFERRED REVENUE
Deferred revenue at March 31, 2006 includes (1) $87,781 for the fair value of
remaining service obligations on maintenance and support contracts and (2)
$102,228 for contracts on which the revenue recognition is deferred until
contract deliverables have been completed.
NOTE 14 - ACCOMMODATION AGREEMENT
In November 2002, the Company entered into a financing arrangement with a third
party financial institution (the "Lender"), pursuant to which the Company would
borrow $950,000 under a note to be collateralized by the pledge of 950,000
shares of registered stock from five different stockholders. In connection with
this arrangement, the Company executed a series of Accommodation Agreements with
these stockholders wherein each stockholder pledged their shares in return for
the right to receive on or before November 17, 2003 the return of the pledged
shares, or replacement shares in the event of foreclosure, and one additional
share of common stock for every four shares pledged as compensation. The Company
also agreed to use "best efforts" to register these shares with the US
Securities and Exchange Commission 12 months from the date of issue.
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In December 2002, the Company received approximately $450,000 of proceeds under
the note and provided the Lender the pledged shares. Since that date, no
additional proceeds were provided by the Lender and repeated attempts were made
by the Company to secure the additional proceeds. The Company has effectively
accounted for the Lender's failure to fund the facility and return the pledged
shares as a foreclosure on the loan collateral. Accordingly, the Company
recorded a $1,047,728 loss during the year ended December 31, 2002.
On March 13, 2003, the Company issued 1,200,000 replacement shares with an
aggregate fair value of $3,708,000 to the stockholders who pledged their shares
under the Accommodation Agreements. Accordingly, the Company recorded an
additional loss of $2,210,272 during the year ended December 31, 2003 for the
difference between the loss the Company recorded upon the Lender's foreclosure
of the collateral and the aggregate fair value of the replacement shares.
In addition, the Accommodation Agreements provided for the Company to pay a
penalty in the event of its failure to cause the replacement shares to be
registered on or before March 31, 2003. As a result, the Company has recorded
stock based penalties for the fair value of 450,000 shares per quarter through
December 31, 2005.
The total stock-based penalties associated with the Accommodation Agreements
from April 2003 to December 31, 2005 were $3,318,975. An aggregate of 4,950,000
shares were issuable through December 31, 2005 under the stock-based penalties
associated with the Accommodation Agreements.
On March 27, 2006, the Company entered into an agreement to release and resolve
all outstanding claims between the parties under the creditor and claimant
liabilities restructuring (Note 16).
STOCK PLEDGE ARRANGEMENT
In April 2004, a stockholder of the Company entered into a one-year stock loan
financing arrangement ("Stock Financing Facility") with a third party financial
institution (the "Lender I"), pursuant to which such stockholder committed to
obtain financing for the Company under a credit facility collateralized by the
pledge of 685,000 shares of registered stock (the "Pledged Stock") that was
pledged by a second stockholder (the "Pledging Stockholder"). In connection with
this arrangement, the Company executed an accommodation agreement with the
Pledging Stockholder committing to issue 685,000 shares of restricted stock (the
"Replacement Stock") on April 2, 2005 (the "Termination Date") in the event of a
loss of the Pledged Stock, plus a premium of 205,500 shares (the "Premium
Shares") for entering into the agreement. The Company also agreed to register
300,000 shares of restricted stock held by the Pledging Stockholder (the "Held
Stock") within thirty days of the agreement and to use its best efforts register
with the SEC, both the Replacement Stock and Premium Stock within 12 months from
their date of issue.
The Company received $40,012 of funds but was unable to recover the Pledged
Stock on the Termination Date. In addition, due to a delay in registering all of
the shares under this arrangement, the Company entered into a secondary
agreement with the Pledging Stockholder providing for: (1) the immediate
issuance of the Replacement Shares and Premium Shares; (2) registration of the
Replacement Shares, Premium Shares and Held Shares; (3) the retroactive accrual
of a penalty from May 2, 2004 through the date the registration statement is
filed payable in such number of shares that is equal to 15% of the Held Stock
(prorated for each fraction of a year); and (4) the accrual of an additional
penalty from April 2, 2005 through the date the registration statement is filed
equal to 15% of the Replacement Stock and Premium Stock (prorated for each
fraction of a year).
The Company recorded a charge of $406,205 for the fair value of the Replacement
Stock and Premium Stock (890,500 shares) issued to the Pledging Stockholder
under this arrangement. Such charge, net of $40,012 of advances received, is
presented as a loss on collateralized financing arrangement in the accompanying
statement of operations. The Company also recorded charges of $2,852 and $9,014
during the three months ended March 31, 2006 and 2005, respectively for the fair
value of 45,011 and 11,096 shares issuable during the three months ended March
31, 2006 and 2005, respectively to the Pledging Stockholder as penalties for the
delays in registering the stock. The charges associated with the penalties are
included in stock based penalties under accommodation agreements in the
accompanying statements of operations.
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NOTE 15 - COMMITMENTS AND CONTINGENCIES
SEC INVESTIGATION
Pursuant to Section 20(a) of the Securities Act and Section 21(a) of the
Securities Exchange Act, the staff of the SEC (the "Staff"), issued an order (In
the Matter of Patron Systems, Inc. - Order Directing a Private Investigation and
Designating Officers to Take Testimony (C-03739-A, February 12, 2004)) (the
"Order") that a private investigation (the "SEC Investigation") be made to
determine whether certain actions of, among others, the Company, certain of its
officers and directors and others violated Section 5(a) and 5(c) of the
Securities Act and/or Section 10 and Rule 10b-5 promulgated under the Exchange
Act. Generally, the Order provides, among other things, that the Staff is
investigating (i) the legality of two (2) separate Registration Statements filed
by the Company on Form S-8, filed on December 20, 2002 and on April 2, 2003, as
amended on April 9, 2003 (collectively, the "Registration Statements"), covering
the resale of, in the aggregate, 4,375,000 shares of common stock issued to
various consultants of the Company, and (ii) whether in connection with the
purchase or sale of shares of common stock, certain officers and directors of
the Company and others (a) sold common stock in violation of Section 5 of the
Securities Act and/or, (b) made misrepresentations and/or omissions of material
facts and/or employed fraudulent devices in connection with such purchases
and/or sales relating to certain of the Company's press releases regarding,
among other items, proposed mergers and acquisitions that were never
consummated. If the SEC brings an action against the Company, it could result
in, among other items, a civil injunctive order or an administrative
cease-and-desist order being entered against the Company, in addition to the
imposition of a significant civil penalty. Moreover, the SEC Investigation
and/or a subsequent SEC action could affect adversely the Company's ability to
have its common stock become listed on a stock exchange and/or quoted on the
NASD Bulletin Board or NASDAQ, the Company being able to sell its securities
and/or have its securities registered with the SEC and/or in various states
and/or the Company's ability to implement its business plan. To date, the
Company's legal counsel representing the Company in such matters has indicated
that the SEC Investigation is ongoing and the Staff has not indicated whether it
will or will not recommend that the SEC bring an enforcement action against the
Company, its officers, directors and/or others.
LEGAL PROCEEDINGS
Sherleigh Associates Inc. Profit Sharing Plan ("Sherleigh") filed a complaint
against the Company, Patrick Allin, former Chief Executive Officer of the
Company, and Robert E. Yaw, the Company's non-executive Chairman, on February 3,
2004, in the United States District Court for the Southern District of New York
(the "Court") alleging common law fraud. The complaint alleged that Sherleigh
was fraudulently induced into purchasing 1,000,000 shares of Company common
stock in reliance upon certain of the Company's press releases and allegedly
false statements by Mr. Allin and Mr. Yaw, concerning the Company's plans to
acquire two target companies, TrustWave Corporation (currently a strategic
partner of the Company) and Entelagent (a current subsidiary of the Company),
and its financing arrangements regarding those acquisitions. Sherleigh seeks
rescission of its purchase agreement and return of its $2,000,000 purchase price
or compensatory damages to be proven at trial. Mr. Allin recently entered into a
settlement agreement with Sherleigh and is requesting that the Court include in
its dismissal order a finding that the settlement is reasonable and a
prohibition against any claims by the Company or Mr. Yaw against Mr. Allin for
contribution or indemnification with respect to Sherleigh's claims. The Company
has opposed Mr. Allin's request. The Court has not yet issued any ruling on Mr.
Allin's request. Discovery has been completed, but no trial date has been set by
the Court. The Company believes the Plaintiff's claims are without merit and
intends to continue to defend against them through trial, if necessary. The
amount of loss, if any, with respect to the claim cannot be predicted or
quantified at this time and, therefore, no amounts have been recorded on the
books of the Company. On April 24, 2006, the Company and the Sherleigh
Associates Inc. Profit Sharing Plan entered into a final and binding settlement
of all claims (Note 20).
On January 5, 2006, Mark P. Gertz, Trustee in bankruptcy for Arter & Hadden,
LLP, filed an Adversary Complaint for Recovery of Assets of the Estate in the
United States Bankruptcy Court Northern District of Ohio Eastern Division,
against the Company as successor in merger to Entelagent. Mr. Gertz seeks
$32,278.18 plus interest accruing at the statutory rate since July 15, 2003 for
services rendered by Arter & Hadden, LLP to Entelagent. The Company intends to
respond to this complaint within the time allotted by statute. The Company
intends to attempt to settle this claim as part of the creditor and claimant
liabilities restructuring (Note 16).
22
While the Company believes it has defenses to the claims noted above,
notwithstanding the fact that the Company intends to vigorously defend these
actions, there can be no assurance the Company will be successful in its defense
of any of these claims. In the event the Company is required to pay damages in
connection with any one or more of the claims asserted in these actions, such
payment could have a material adverse effect on the Company's business and
operations.
GRAUL CLAIM
On March 3, 2006, the Company, Ms. Graul and a third party ("Buyer") entered
into an arrangement providing for Ms. Graul to assign and transfer all rights,
title and interest in her original claim of $931,659 against the Company to the
Buyer in exchange for a cash payment in the amount of $180,000. On March 15,
2006, the Company advanced the $180,000 payment to Ms. Graul in exchange for her
immediate release of all claims against the Company. The Company is currently
awaiting payment in the same amount from the Buyer in order to complete the
assignment of such claim to the Buyer. This arrangement further provides for the
Company to acknowledge Ms. Graul's original claim for the benefit of the Buyer,
the rescission of the August 2005 settlement and release, and for the Buyer to
participate in the creditor and claimant liabilities restructuring (Note 16)
with respect to the settlement of Ms. Graul's original claim.
STOCK SUBSCRIPTION AND MUTUAL RELEASE AGREEMENTS WITH PATRICK ALLIN AND THE
ALLIN DYNASTIC TRUST
On January 1, 2006, the Company and Mr. Patrick Allin and The Allin Dynastic
Trust entered into Stock Subscription Agreement and Mutual Release agreements
(the "Series A-1 Agreements") to settle all claims in law, equity, or otherwise
("Allin Subscriber Claims") arising out of the business relationship between the
parties that Mr. Allin and The Allin Dynastic Trust may have with the Company.
The Series A-1 Agreements provide for the issuance of 1,875,000 shares of Series
A-1 Preferred Stock to Mr. Allin and 625,000 shares of Series A-1 Preferred
Stock to The Allin Dynastic Trust. The aggregate purchase price is equivalent to
the value of the Allin Subscriber Claims being settled through this settlement
and release. The total of these claims at December 31, 2005 amounted to
$2,000,000. Mr. Allin and The Allin Dynastic Trust are each deemed to have paid
for the Series A-1 Preferred Stock through the settlement and release of Allin
Subscriber Claims. See Note 17 for further details of the Series A-1 Preferred
stock and Note 16 for the creditor and claimant liabilities restructuring.
SETTLEMENT OF LINTING LAWSUIT
On February 14, 2006, the Company and Richard Linting entered into a Stock
Subscription Agreement & Mutual Release ("Linting Agreement") to settle all
claims in law, equity or otherwise ("Linting Subscriber Claims") arising out of
the business relationship between the parties that Mr. Linting may have with the
Company. The Linting Agreement provides for the issuance of 1,777,261 shares
(the "Shelved Stock") of Series A-1 Preferred stock. The aggregate purchase
price is equivalent to the value of the Linting Subscriber Claims being settled
through this settlement and release. The total set aside purchase price for the
Shelved Stock shall be $0.80 per share or an aggregate of $1,421,809. Mr.
Linting is deemed to have paid for the Series A-1 Preferred stock through the
settlement and release of the Linting Subscriber Claims. This agreement provides
for the transfer of the Shelved Stock in stock certificate installments and in
such numbers and at such times as directed by Mr. Linting. See Note 17 for
further details of the Series A-1 Preferred stock and Note 16 for the creditor
and claimant liabilities restructuring.
SETTLEMENT OF HARARY, ET AL. LAWSUITS
On March 27, 2006, the Company reached agreement with Paul Harary, Paris
McKinzie, Maria Caporicci, LLB Ltd. and DGC, Inc. (the "Subscribers") whereby
each of the Subscribers and the Company mutually release the other party and its
respective stockholders, directors, officers, employees, etc. from any and all
past, present and future claims that can or have been brought by the other party
relating to any act or omission occurring on or prior to the date of the
Agreement. Additionally, the Company agreed to a payment to the Subscribers,
including attorneys' fees, of $125,090. The Subscribers agreed to purchase from
the Company 3,000,000 shares of the Company's Series A-1 Preferred Stock, the
purchase price for the stock shall be $0.80 per share and shall be paid through
this settlement
23
and release of $2,400,000 of Subscriber claims. See Note 17 for further details
of the Series A-1 Preferred stock and Note 16 for the creditor and claimant
liabilities restructuring.
BRADEN WAVERLEY, CHIEF OPERATING OFFICER - EMPLOYMENT AGREEMENT
On February 17, 2006, the Company entered into an employment agreement (the
"Waverley Agreement") with Braden Waverley ("Waverley"), the Company's new Chief
Operating Officer. The term of the Waverley Agreement is one year with automatic
one-year renewal unless Mr. Waverley is provided with written notice of
non-renewal 90 days prior to expiration of the current term of the Waverley
Agreement. The Waverley Agreement provides for a base salary of $200,000 per
year. The Waverley Agreement provides for a performance bonus determined in
accordance with revenue milestones established by the Board of Directors on a
quarterly basis. Mr. Waverley is eligible to receive a bonus of up to 75% of
base salary for each quarter that the Company achieves the agreed upon revenue
milestones. Additionally, the Waverley Agreement provides for the grant of stock
options in an amount representing an aggregate 3.5% of the outstanding shares of
Company common stock on the date of grant ("Waverley Initial Grant"). The
Waverley Initial Grant is for 2,201,119 shares at an exercise price of $0.055
per share. Additionally, upon the completion of the creditor and claimant
liabilities restructuring, Mr. Waverley will be granted an additional option
("Waverley Additional Option") which together with the Waverley Initial Grant
shall enable Mr. Waverley to purchase, along with the Waverley Initial Grant,
shares of Company common stock representing 3.5% of the common stock issued and
outstanding after completion of the creditor and claimant liabilities
restructuring on a fully-diluted basis. These options have a term of 10 years
and vest 20% on the date of grant and 1/48th of the balance on the last day of
each month for the next 48 months following the effective date of this
agreement.
MARTIN T. JOHNSON, CHIEF FINANCIAL OFFICER - EMPLOYMENT AGREEMENT
On February 17, 2006, the Company entered into an employment agreement (the
"Johnson Agreement") with Martin T. Johnson ("Johnson"), the Company's new Chief
Financial Officer. The term of the Johnson Agreement is one year with automatic
one-year renewal unless Mr. Johnson is provided with written notice of
non-renewal 90 days prior to expiration of the current term of the Johnson
Agreement. The Johnson Agreement provides for a base salary of $180,000 per
year. The Johnson Agreement provides for a performance bonus determined in
accordance with revenue milestones established by the Board of Directors on a
quarterly basis. Mr. Johnson is eligible to receive a bonus of up to 50% of base
salary for each quarter that the Company achieves the agreed upon revenue
milestones. Additionally, the Johnson Agreement provides for the grant of stock
options in an amount representing an aggregate 1.25% of the outstanding shares
of Company common stock on the date of grant ("Johnson Initial Grant"). The
Johnson Initial Grant is for 786,114 shares at an exercise price of $0.055 per
share. Additionally, upon the completion of the creditor and claimant
liabilities restructuring, Mr. Johnson will be granted an additional option
("Johnson Additional Option") which together with the Johnson Initial Grant
shall enable Mr. Johnson to purchase, along with the Johnson Initial Grant,
shares of Company common stock representing 1.25% of the common stock issued and
outstanding after completion of the creditor and claimant liabilities
restructuring on a fully-diluted basis. These options have a term of 10 years
and vest 20% on the date of grant and 1/48th of the balance on the last day of
each month for the next 48 months following the effective date of this
agreement.
ROBERT CROSS - BONUS ARRANGEMENT
On March 7, 2006, the Patron Board of Directors, in executive session without
Mr. Cross being present, approved a bonus arrangement ("Bonus Arrangement") for
Mr. Cross. The Bonus Arrangement provides for (i) a cash bonus equal to
$200,000, grossed up for taxes (the "Cash Bonus"), (ii) the Cash Bonus would be
payable only after agreement has been reached with creditors holding the
applicable percentage of Patron's creditor obligations agree to convert their
obligations under the creditor and claimant liabilities restructuring and when
the funding escrow established by Laidlaw has been released (the "Eligibility
Date"), (iii) 50% of the Cash Bonus would be paid on the Eligibility Date, and
the other 50% would be paid in ten equal monthly installments beginning one
month following the Eligibility Date, and (iv) on the Eligibility Date, Mr.
Cross would be granted a stock option in an amount representing an aggregate
2.5% of the outstanding shares of Company common stock on the Eligibility Date
("Initial
24
Cross Grant"). Additionally, upon the completion of the creditor and claimant
liabilities restructuring, Mr. Cross will be granted an additional option
("Cross Additional Option") which together with the Cross Initial Grant shall
enable Mr. Cross to purchase, along with the Cross Initial Grant shares of
Company common stock representing 2.5% of the common stock issued and
outstanding after completion of the creditor and claimant liabilities
restructuring on a fully-diluted basis. These options have a term of 10 years
and vest 20% on the date of grant and 1/48th of the balance on the last day of
each month for the next 48 months following the Eligibility Date.
NOTE 16 - CREDITOR AND CLAIMANT LIABILITIES RESTRUCTURING
On January 12, 2006, the Company issued a Stock Subscription Agreement & Mutual
Release to each creditor and claimant ("Subscriber") of the Company for purposes
of entering into a final and binding settlement with respect to any and all
claims, liabilities, demands, causes of action, costs, expenses, attorneys fees,
damages, indemnities, and obligations of every kind and nature that the creditor
and/or claimant may have with the Company ("Subscriber Claims"). Under terms of
this agreement, the Company sells to the Subscriber and the Subscriber purchases
from the Company shares ("Stock") of its Series A-1 Preferred stock at a price
of $0.80 per share. The aggregate purchase price is equivalent to the value of
the Subscriber Claims being settled through this settlement and release.
Subscriber is deemed to have paid for the Stock through the settlement and
release of Subscriber Claims. Each share of Stock is automatically convertible
into ten shares of the Company's common stock upon the effectiveness of an
amendment to the Company's certificate of incorporation which provides for a
sufficient number of authorized but unissued and unreserved shares of the
Company's common stock to permit the conversion of all issued and outstanding
shares of Series A-1 Preferred stock. If the requisite agreements and approvals
are obtained, the Company anticipates issuing the shares of Series A-1 Preferred
stock following the final determination of the claims and acceptance by the
Company of each claimant submitted Stock Subscription Agreement and Mutual
Release through countersignature thereof.
The Stock Subscription Agreement & Mutual Release also provided that in the
event that (a) a bona fide sale or (series of related sales) by the Company of
equity interests in the Company in an amount equal to or in excess of $3,000,000
or (b) any merger, consolidation, recapitalization, reclassification,
reincorporation, reorganization, share exchange, sale of all or substantially
all of the assets of the Company or comparable transaction, is not consummated
on or before March 31, 2006 (the "Termination Date"), the Stock Subscription
Agreement & Mutual Release shall terminate and be null and void, the Series A-1
Preferred stock issued to Subscriber shall be cancelled and the Subscriber
Claims shall remain in full force and effect on their terms. Each Subscriber
agrees not to transfer or sell any portion of the Stock until the next business
day after the Termination Date, subject to (i) an effective registration under
the Securities Act or in a transaction which is otherwise in compliance with the
Securities Act, (ii) an effective registration under any applicable state
securities statute or in a transaction otherwise in compliance with any
applicable state securities statue, and (iii) evidence of compliance with the
applicable securities laws of other jurisdictions.
As described below under the Private Placement Series A Preferred Stock and
Warrants, on March 3, 2006 the investors in the Series A Preferred Financing
modified the terms of their financing arrangement to provide funds to the
Company prior to the 100% completion of the creditor and claimant liabilities
restructuring. This modification provides for the establishment of a restricted
cash escrow agent and establishes a methodology to disburse funds to the Company
to cover payroll, rent and other operating costs, including eligible payables
not otherwise subject to the creditor and claimant liabilities restructuring, on
a bi-monthly basis. As described below, the Company completed the sale of $4.8
million in equity securities under the Series A Preferred Financing on March 27,
2006 thereby eliminating the provision for automatic termination of this
arrangement.
The Company has committed to file with the Securities and Exchange Commission,
as soon as practicable and in any event no later than 120 days from the date
that the Company countersigns each Stock Subscription Agreement and Mutual
Release, a registration statement ("Registration Statement") covering the resale
of the Stock and cause such Registration Statement to become effective as soon
as practicable thereafter and in any event no later than 180 days from the date
that the Company countersigns each Stock Subscription Agreement and Mutual
Release. The Company shall keep the Registration Statement continuously
effective under the Securities Act until the earlier of (i)
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the date when all shares of the Stock have been sold pursuant to the
Registration Statement or an exemption from the registration requirements of the
Securities Act, and (ii) two years from the effective date of the Registration
Statement.
As of May 11, 2006, creditors representing approximately 86% of the Company's
claims outstanding, which includes amounts settled under the accommodation
agreement, have indicated their acceptance of the Company's proposal by signing
and returning to the Company the Stock Subscription Agreement and Mutual
Release. The Company is currently unable to provide assurance that the
acceptance of such proposal will actually improve the Company's ability to fund
the further development of its business plan or improve its operations.
NOTE 17 - SERIES A AND SERIES A-1 PREFERRED STOCK
On March 1, 2006, the Company filed with the Delaware Secretary of State a
Certificate of Designation of Preferences, Rights and Limitations of Series A
Convertible Preferred Stock and Series A-1 Convertible Preferred Stock
designating the rights, preferences and privileges of 2,160 shares of Series A
Preferred stock and 50,000,000 shares of Series A-1 Preferred stock.
SERIES A PREFERRED STOCK
The Series A Preferred stock has a stated value of $5,000 per share, has no
maturity date, carries a dividend of 10% per annum, with such dividend accruing
on a cumulative basis and is payable only (i) at such time as declared payable
by the Board of Directors of the Company or (ii) in the event of liquidation, as
part of the liquidation preference amount ("Liquidation Preference Amount"). The
Liquidation Preference Amount is equal to 125% of the sum of: (i) the stated
value of any then unconverted shares of Series A Preferred stock and (ii) any
accrued and unpaid dividends thereon. An event of liquidation means any
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, as well as any change of control of the Company which includes the
sale by the Company of either (x) substantially all its assets or (y) the
portion of its assets which comprises its core business technology, products or
services.
The Series A Preferred stock is convertible, at the option of the holder, into
shares of the Company's common stock ("Conversion Shares") at an initial
conversion price ("Initial Conversion Price") which shall be $0.08 per share
based on the stated value of the Series A Preferred stock, subject to adjustment
for stock splits, dividends, recapitalizations, reclassifications, payments made
to Common Stock holders and other similar events and for issuances of additional
securities at prices more favorable than the conversion price at the date of
such issuance.
The Series A Preferred stock is mandatorily convertible into shares of the
Company's common stock at the Initial Conversion Price, which is subject to
adjustment as described above, on the date that: (i) there shall be an effective
registration statement covering the resale of the Conversion Shares, (ii) the
average closing price of the Company's common stock, for a period of 20
consecutive trading days is at least 250% of the then applicable Conversion
Price, and (iii) the average daily trading volume of the Company's common stock
for the same period is at least 250,000 shares.
SERIES A-1 PREFERRED STOCK
The Series A-1 Preferred stock has a stated value of $0.80 per share, has no
maturity date, carries a non-cumulative dividend of 5% per annum, with such
dividend payable only (i) at such time as declared payable by the Board of
Directors of the Company or (ii) in the event of liquidation, as part of the
liquidation preference amount ("Series A-1 Liquidation Preference Amount"). The
Series A-1 Liquidation Preference Amount is equal to the sum of: (i) the stated
value of any then unconverted shares of Series A-1 Preferred stock and (ii) any
accrued and unpaid dividends thereon. An event of liquidation means any
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, as well as any change of control of the Company which includes the
sale by the Company of either (x) substantially all its assets or (y) the
portion of its assets which comprises its core business technology, products or
services.
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The Series A-1 Preferred stock is not convertible at the option of the holder.
Each share of Series A-1 Preferred stock automatically converts into the
Company's common stock, at a conversion price of $0.08 per share based on the
stated value of the Series A-1 Preferred stock, upon the effectiveness of an
amendment to the Company's certificate of incorporation which provides for a
sufficient number of authorized shares to permit the exercise or conversion of
all issued and outstanding shares of Series A Preferred stock, Series A-1
Preferred stock and all options, warrants and other rights to acquire shares of
the Company's common stock.
PRIVATE PLACEMENT OF SERIES A PREFERRED STOCK AND WARRANTS
In January 2006, the Company initiated a $5,400,000 financing transaction (the
"Series A Preferred Financing") which would, for each $100,000 Unit purchased,
result in the issuance of (i) 20 shares of Series A Preferred Stock and (ii)
warrants ("Investor Warrants") to purchase 416,667 shares of the Company's
common stock. The minimum amount of the Series A Preferred Financing is
$3,000,000 ("Minimum Amount") and the maximum amount is $5,400,000. Apex agreed
to purchase up to $1,500,000 which will all be available to fund the Minimum
Amount, provided however, in the event that the Series A Preferred Financing is
over-subscribed as to the Minimum Amount, then for each $1.00 of such over
subscription up to $250,000, the Apex funding commitment will be reduced on a
dollar for dollar basis, down to a minimum amount of $1,250,000. Additionally,
holders of the 2006 Bridge Notes were mandatorily obligated to exchange their
2006 Bridge Notes for Units in the Series A Preferred Financing upon
consummation of the Series A Preferred Financing at the face value of their 2006
Bridge Notes. The issuance of Units to the holders of 2006 Bridge Notes counts
toward satisfying the Minimum Amount.
The Investor Warrants have a term of 5 years and an exercise price of $0.10 per
share. Each Investor Warrant will entitle the holder thereof to purchase 416,667
shares of the Company's common stock (the "Warrant Shares"), subject to
anti-dilution provisions similar to those of the conversion rights of the Series
A Preferred stock. The Company is obligated to include the Conversion Shares and
the Warrant Shares in the Registration Statement which the Company has committed
to file in connection with the creditor and claimant liabilities restructuring
described above. The Conversion Shares and the Warrant Shares will also have
piggyback registration rights.
In connection with the Series A Preferred Financing, the Company retained
Laidlaw as its non-exclusive placement agent ("Series A Preferred Placement
Agent"). Laidlaw shall receive, in its role as Series A Preferred Placement
Agent, (i) a cash fee equal to 10% of all gross proceeds, excluding the Apex
proceeds, delivered at each Closing and (ii) a warrant (the "Agent Warrants") to
purchase the Company's common stock equal to 10% times the sum of (x) the
Conversion Shares to be issued upon conversion of the shares of Series A
Preferred stock issued at each Closing and (y) the number of shares of the
Company's common stock reserved for issuance upon the exercise of the Investor
Warrants issued at each closing. The Agent Warrants shall have a term of 5 years
and an exercise price of $0.10 per share. Additionally, the Company shall pay
the Series A Preferred Placement Agent a non-accountable expense allowance of
$25,000.
On March 3, 2006, the investors in the Series A Preferred Financing agreed to a
modification of the terms of this financing arrangement to waive the requirement
for 100% completion of the creditor and claimant liabilities restructuring for
release of the net proceeds of the Series A Preferred Financing in order to
allow the Company to proceed with its business plan and to protect the investors
in the Series A Preferred Financing. The modifications provide for the net
proceeds of the Series A Preferred Financing to be deposited with an escrow
agent whereby funds will be released to the Company to cover payroll, rent and
other operating costs, including eligible payables not otherwise subject to the
creditor and claimant liabilities restructuring, on a bi-monthly basis.
As of March 27, 2006, the Company consummated the Series A Preferred Financing
with the closing of funds totaling $4,465,501, resulting in the issuance of 893
shares of Series A Preferred Stock and 18,606,278 common stock purchase warrants
to the purchasers of the Series A Preferred Stock. This amount is comprised on
$720,001 associated with the conversion of the Bridge Notes, $895,000 provided
by Apex and $2,850,500 from parties made available by the Series A Preferred
Placement Agent. The Company has also issued to Laidlaw 5,950,837 common stock
purchase warrants, the Agent Warrants, to Laidlaw as Series A Preferred
Placement Agent. The Company paid Laidlaw a Series A Placement Agent fee of
$339,051 which includes the $54,000 placement agent fee associated with the 2006
Bridge Notes.
27
In order to effect the availability of these funds to the Company prior to the
completion of the creditor and claimant liabilities restructuring, the Company,
on March 27, 2006, entered into a post-closing restricted cash escrow agreement
("Post-Closing Escrow Agreement") with an escrow agent ("Escrow Agent"). As of
March 27, 2006, the Escrow Agent was provided $2,183,026 in net offering
proceeds. The escrow agent is holding the funds and making periodic
disbursements to the Company on or after the 15th of each calendar month and on
or after the last day of each calendar month. The Company is required to provide
a detailed schedule of the mid-month, month-end and maximum monthly disbursement
amounts to substantiate its request for a release of any funds. The Post-Closing
Escrow Agreement provides for the remaining escrow funds to be released to the
Company after the Company has received executed agreements under the creditor
and claimant liabilities restructuring for not less than 99% in dollar amount of
creditor and claimant claims. The Company cannot provide any assurance that it
will be successful in its efforts to complete the creditor and claimant
liabilities restructuring. Additionally there is no assurance that by securing
this additional financing the Company will be successful in the implementation
and execution of its business plan.
NOTE 18 - STOCKHOLDERS' EQUITY
ISSUANCE OF COMMON STOCK PURCHASE WARRANTS
On January 28, 2006 the Company issued warrants for 600,000 shares at a $0.60
per share exercise price to Apex in connection with the Interim Bridge Financing
III financing. The aggregate fair value of these warrants amounted to $20,316.
On February 13, 2006 the Company issued warrants for 180,000 shares at a $0.60
per share exercise price to Apex in connection with the Interim Bridge Financing
III financing. The aggregate fair value of these warrants amounted to $6,634.
On February 21, 2006 the Company issued warrants for 37,500 shares at a $0.60
per share exercise price to Apex in connection with the Interim Bridge Financing
III financing. The aggregate fair value of these warrants amounted to $1,382.
On March 1, 2006 the Company issued warrants for 192,500 shares at a $0.60 per
share exercise price to Apex in connection with the Interim Bridge Financing III
financing. The aggregate fair value of these warrants amounted to $10,029.
On March 17, 2006 the Company issued warrants for 112,500 shares at a $0.60 per
share exercise price to Apex in connection with the Interim Bridge Financing III
financing. The aggregate fair value of these warrants amounted to $5,861.
On March 22, 2006 the Company issued warrants for 75,000 shares at a $0.60 per
share exercise price to Apex in connection with the Interim Bridge Financing III
financing. The aggregate fair value of these warrants amounted to $3,907.
On March 27, 2006 the Company issued warrants for 18,606,278 shares at a $0.10
per share exercise price to the investors in the Series A Preferred Financing in
connection with the Series A Preferred Financing. Additionally, the Company
issued 5,950,837 common stock purchase warrants at a $0.10 per share exercise
price to Laidlaw as placement agent in the Series A Preferred Financing.
ISSUANCE OF EMPLOYEE STOCK OPTIONS
During the three months ended March 31, 2006, the Company issued stock options
to employees to purchase 2,987,233 shares. These options include a grant to
purchase 2,201,119 shares at $0.055 per share, with a fair value of $94,436, to
the Chief Operating Officer of the Company, Mr. Braden Waverley, upon the
signing of his employment agreement with the Company. Additionally, the Company
granted options to purchase 786,114 shares
28
at $0.055 per share, with a fair value of $33,727, to Mr. Martin T. Johnson, the
Company's Chief Financial Officer, upon the signing of his employment agreement
with the Company.
The fair value of the unvested portion of stock options issued prior to December
31, 2005 was $776,251 as of December 31, 2005. Including the options granted in
the three months ended March 31, 2006, the fair value of the unvested portion of
stock option grants as of March 31, 2006 is $731,080.
NOTE 19 - DISCONTINUED OPERATIONS
During the three months ended March 31, 2006, the Company made the decision to
streamline the Company's business focus on enterprise level software and service
solutions designed to help customers create, manage and apply complex rule sets
that support business policies, enhance work flow processes, enforce regulatory
compliance and reduce the time, cost and overhead of electronic message
management. This decision resulted in the Company's decision to find a buyer for
the LucidLine business. Based on this decision, the Company has recorded the
assets net of liabilities as assets of discontinued operations on the Condensed
Consolidated Balance Sheet as of March 31, 2006 and has recorded the loss on
discontinued operations on the Condensed Consolidated Statement of Operations
for the three months ended March 31, 2006 and March 31, 2005. Revenue associated
with the discontinued operations was $99,167 and $42,430 for the three months
ended March 31, 2006 and 2005, respectively. Loss on discontinued operations was
$104,962 and $102,377 for the three months ended March 31, 2006 and 2005,
respectively.
On April 18, 2006, the Company entered into a Stock Purchase Agreement with
Walnut Valley, Inc. pursuant to which the Company sold all of the outstanding
shares of LucidLine, Inc.(Note 20).
NOTE 20 - SUBSEQUENT EVENTS
ADDITIONAL SERIES A PREFERRED STOCK AND WARRANT SALE
On April 3, 2006, the Company received $355,000 associated with the Series A
Preferred Financing from Apex Investment Fund V, L.P. With receipt of these
funds, the Company issued 71 shares of Series A Preferred Stock and 1,479,168
common stock purchase warrants. Receipt of these funds completes the funding of
the Series A Preferred Financing.
SALE OF LUCIDLINE, INC.
On April 18, 2006, the Company entered into a Stock Purchase Agreement with
Walnut Valley, Inc. pursuant to which the Company sold all of the outstanding
shares of LucidLine, Inc., the Company's wholly-owned subsidiary, to Walnut
Valley, Inc. in consideration for a cash payment of $25,000 and the issuance of
a Promissory Note in the principal amount of $25,000 by Walnut Valley in favor
to the Company. The sale of LucidLine is designed to streamline the Company's
business focus on enterprise level software and service solutions designed to
help customers create, manage and apply complex rule sets that support business
policies, enhance work flow processes, enforce regulatory compliance and reduce
the time, cost and overhead of electronic message management.
SETTLEMENT OF SHERLEIGH ASSOCIATES, INC. PROFIT SHARING PLAN LAWSUIT
On April 24, 2006, the Company entered into a Stock Subscription Agreement and
Mutual Release with the Sherleigh Associates, Inc. Profit Sharing Plan
("Sherleigh"). This agreement provides for a final and binding settlement with
respect to any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys fees, damages, indemnities and obligations of any kind and
nature in law, equity or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed arising out of or in any way related to
the business relationship between the parties that Sherleigh may have against
the Company ("Sherleigh Claims").
In settlement of the Sherleigh Claims, Sherleigh purchased from the Company
2,312,500 shares of the Series A-1 Preferred Stock for a purchase price of $0.80
per share or $1,850,000. The aggregate purchase price is equivalent to
29
the value of the Sherleigh Claims being settled, which is being paid through the
settlement and release of the Sherleigh Claims.
On May 4, 2006, Patron became aware that Lok Technologies, Inc. had filed a
complaint on or about March 30, 2006 against the Company, Entelagent Software
Corp. and unnamed defendants in the Superior Court of California, County of
Santa Clara alleging breach of contract, breach of duty of good faith and fair
dealing and unjust enrichment and seeking damages, interest, disgorgement of any
unjust enrichment, attorneys fees and cost. Prior to receipt of this notice of
litigation, the Company had recorded a liability of $320,000 plus accrued
interest of $159,432. The Company believes that it has defenses to these claims
but has proposed to settle this litigation as part of the creditor and claimant
liabilities restructuring. The Company cannot provide any assurance that the
ultimate settlement of this claim will not have a material adverse affect on its
financial condition.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
PATRON SYSTEMS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
MARCH 31, 2006
The following discussion and analysis should be read in conjunction with the
Annual Report on Form 10-KSB, including the consolidated financial statements,
and the related notes thereto, for the year ended December 31, 2005 of Patron
Systems, Inc. and subsidiaries (collectively referred to as "Patron," the
"Company," "we," "us," or "our"). Except for historical information contained
herein, the matters discussed below are forward-looking statements made pursuant
to the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. Such statements involve risks and uncertainties, including, but not
limited to, economic, governmental, political, competitive and technological
factors affecting our operations, markets, products, prices and other factors
discussed elsewhere in this report and other reports filed by us with the
Securities and Exchange Commission ("SEC"). These factors may cause results to
differ materially from the statements made in this report or otherwise made by
or on our behalf.
OVERVIEW
On February 25, 2005, we consummated the acquisitions of Complete Security
Solutions, Inc. ("CSSI") and LucidLine, Inc. ("LucidLine") pursuant to the
filings of Agreements and Plans of Merger with the Secretaries of State of the
States of Delaware and Illinois, respectively. On February 28, 2005, we
consummated a private placement with accredited investors in the amount of $3.5
million. On March 30, 2005, we consummated the acquisition of Entelagent
Software Corp. ("Entelagent") pursuant to the filing of an Agreement and Plan of
Merger with the Secretary of State of the State of California. From March 31,
2005 to December 31, 2005, we borrowed $3,300,000 from a stockholder, Apex
Investment Fund V, LP. During the three months ended September 30, 2005 we
raised approximately $3,600,000 in additional gross funds in five capital
financing transactions, which includes converting $1,650,000 in advances from
stockholders into Bridge Notes. Net proceeds from all of these transaction
amounted to $3,594,000, which were used principally to fund operations and repay
certain liabilities. We discuss these transactions in further detail in this
report. During the three months ended March 31, 2006, we raised $4,285,501 of
gross proceeds ($3,946,450 net proceeds after the payment of certain transaction
expenses) in the Series A Preferred Financing.
Our strategic mission is to solve a set of enterprise-level customer problems
associated with electronic message management, whether in the form of e-mail,
eforms or instant messaging. Our software and services solutions are designed to
help our customers create, manage and apply complex rule sets that support
business policies, enhance work flow processes, enforce regulatory compliance,
and reduce the time, cost and overhead of message management. Our suite of
products addresses e-mail policy management, e-mail retention policies,
archiving and eDiscovery, proactive e-mail supervision, and the protection of
messages and their attachments in motion and at rest. Our eforms solution
enables customers to quickly and easily create forms, capture, share, and manage
data in an industry standard format.
We currently offer software solutions that fit into overall corporate compliance
and data protection initiatives by automatically finding, archiving and applying
persistent protection to sensitive data - beyond authentication - whenever,
wherever and however sensitive data is shared, accessed and stored. Additionally
we offer software solutions that support real-time secure collection, delivery
and sharing of field-based report information. This software allows law
enforcement and public-safety agencies to have real-time access to field
reporting data for use inside a department or in a multi-jurisdictional
information sharing system.
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CRITICAL ACCOUNTING POLICIES
The preparation of financial statements and related disclosures in conformity
with accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the amounts reported in
the Condensed Consolidated Financial Statements and Notes thereto. Our
application of accounting policies affects these estimates and assumptions.
Actual results could differ from these estimates under different assumptions or
conditions.
REVENUE RECOGNITION
We derive revenues from the following sources: (1) sales of computer software,
which includes new software licenses and software updates and product support
revenues and (2) services, which include internet access, back-up, retrieval and
restoration services and professional consulting services.
We apply the revenue recognition principles set forth under AICPA Statement of
Position ("SOP") 97-2 "Software Revenue Recognition" and Securities and Exchange
Commission Staff Accounting Bulletin ("SAB") 104 "Revenue Recognition" with
respect to all of our revenue. Accordingly, we record revenue when (i)
persuasive evidence of an arrangement exists, (ii) delivery has occurred, (iii)
the vendor's fee is fixed or determinable, and (iv) collectability is probable.
We generate revenues through sales of software licenses and annual support
subscription agreements which include access to technical support and software
updates (if and when available). Software license revenues are generated from
licensing the rights to use our products directly to end-users and through third
party service providers.
Revenues from software license agreements are generally recognized upon delivery
of software to the customer. All of our software sales are supported by a
written contract or other evidence of sale transaction such as a customer
purchase order. These forms of evidence clearly indicate the selling price to
the customer, shipping terms, payment terms (generally 30 days) and refund
policy, if any. The selling prices of these products are fixed at the time the
sale is consummated.
Revenue from post contract customer support arrangements or undelivered elements
are deferred and recognized at the time of delivery or over the period in which
the services are performed based on vendor specific objective evidence of fair
value for such undelivered elements. Vendor specific objective evidence is
typically based on the price charged when an element is sold separately or, if
an element is not sold separately, on the price established by an authorized
level of management, if it is probable that the price, once established, will
not change before market introduction. We use the residual method prescribed in
SOP 98-9 "Modification of SOP 97-2, Software Revenue Recognition With Respect to
Certain Transactions" to allocate revenues to delivered elements once it has
established vendor-specific evidence for such undelivered elements.
We provide internet access and back-up, retrieval and restoration services under
contractual arrangements with terms ranging from 1 year to 5 years. These
contracts are billed monthly, in advance, based on the contractually stated
rates. At the inception of a contract, we may activate the customer's account
for a contractual fee that it amortizes over the term of the contract in
accordance with Emerging Issues Task Force Issue ("EITF") 00-21 "Revenue
Arrangements with Multiple Deliverables." Our standard contracts are
automatically renewable by the customer unless terminated on 30 days written
notice. Early termination of the contract generally results in an early
termination fee equal to the lesser of six months of service or the remaining
term of the contract.
Professional consulting services are billed based on the number of hours of
consultant services provided and the hourly billing rates. We recognize revenue
under these arrangements as the service is performed.
Revenue from the resale of third-party hardware and software is recognized upon
delivery provided there are no further obligations to install or modify the
hardware or software. Revenue from the sales of hardware/software is recorded at
the gross amount of the sale when the contract satisfies the requirements of
EITF 99-19 "Reporting Revenue Gross as a Principal versus Net as Agent."
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BUSINESS COMBINATIONS
In accordance with business combination accounting, we allocate the purchase
price of acquired companies to the tangible and intangible assets acquired,
liabilities assumed, as well as in-process research and development based on
their estimated fair values. We have engaged a third-party appraisal firm to
assist management in determining the fair values of certain assets acquired and
liabilities assumed. Such a valuation requires management to make significant
estimates and assumptions, especially with respect to intangible assets.
Management makes estimates of fair value based upon assumptions believed to be
reasonable. These estimates are based on historical experience and information
obtained from the management of the acquired companies. Critical estimates in
valuing certain of the intangible assets include but are not limited to: future
expected cash flows from license sales, maintenance agreements, customer
contracts and acquired developed technologies; expected costs to develop the
in-process research and development into commercially viable products; the
acquired company's brand awareness and market position, as well as assumptions
about the period of time the acquired brand will continue to be used in the
combined company's product portfolio; and discount rates. These estimates are
inherently uncertain and unpredictable. Assumptions may be incomplete or
inaccurate, and unanticipated events and circumstances may occur which may
affect the accuracy or validity of such assumptions, estimates or actual
results.
GOODWILL AND INTANGIBLE ASSETS
We account for Goodwill and Intangible Assets in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 141, "Business Combinations" and
SFAS No. 142, "Goodwill and Other Intangible Assets." Under SFAS No. 142,
goodwill and intangibles that are deemed to have indefinite lives are no longer
amortized but, instead, are to be reviewed at least annually for impairment.
Application of the goodwill impairment test requires judgment, including the
identification of reporting units, assigning assets and liabilities to reporting
units, assigning goodwill to reporting units, and determining the fair value.
Significant judgments required to estimate the fair value of reporting units
include estimating future cash flows, determining appropriate discount rates and
other assumptions. Changes in these estimates and assumptions could materially
affect the determination of fair value and/or goodwill impairment for each
reporting unit. We have recorded goodwill in connection with the Company's
acquisitions described in Note 5 amounting to $22,440,412. The Company's annual
impairment review of goodwill identified that goodwill impairment charges
totaling $12,929,696 were necessary for the year ended December 31, 2005 (Note
5). Intangible assets continue to be amortized over their estimated useful
lives.
LONG LIVED ASSETS
The Company periodically reviews the carrying values of its long lived assets in
accordance with SFAS 144, "Long Lived Assets" when events or changes in
circumstances would indicate that it is more likely than not that their carrying
values may exceed their realizable value and records impairment charges when
necessary. The Company determined that an impairment charge of $1,705,455 was
necessary for the year ended December 31, 2005 (Note 8).
INCOME TAXES
We account for income taxes pursuant to SFAS No. 109, Accounting for Income
Taxes. Deferred taxes arise from temporary differences, primarily attributable
to the use of the cash method for tax purposes and accrual method for book
purposes and net operating loss carry-forwards. The Company reserves for
deferred tax assets when more likely than not, the benefit of the asset will not
be realized in the future.
NET LOSS PER SHARE
Basic net loss per common share is computed by dividing net loss by the
weighted-average number of common shares outstanding during the period. Diluted
net loss per common share also includes common stock equivalents outstanding
during the period if dilutive. Diluted net loss per common share has been
computed by dividing net loss by the weighted-average number of common shares
outstanding without an assumed increase in common shares outstanding for common
stock equivalents; as such common stock equivalents are anti-dilutive.
33
USE OF ESTIMATES IN PREPARING FINANCIAL STATEMENTS
In preparing financial statements in conformity with accounting principles
generally accepted in the United States of America, management is required to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date
of the financial statements and revenue and expenses during the reporting
period. Actual results could differ from those estimates.
STOCK BASED COMPENSATION
Prior to January 1, 2006, the Company accounted for employee stock transactions
in accordance with Accounting Principles Board ("APB") Opinion No. 25
"Accounting for Stock Issued to Employees." The Company has adopted the proforma
disclosure requirements of SFAS No. 123 "Accounting for Stock-Based
Compensation."
Effective January 1, 2006, the Company adopted SFAS No. 123R "Share Based
Payment." This statement is a revision of SFAS Statement No. 123, and supersedes
APB Opinion No. 25, and its related implementation guidance. SFAS 123R addresses
all forms of share based payment ("SBP") awards including shares issued under
employee stock purchase plans, stock options, restricted stock and stock
appreciation rights. Under SFAS 123R, SBP awards result in a cost that will be
measured at fair value on the awards' grant date, based on the estimated number
of awards that are expected to vest that will result in a charge to operations.
NON-EMPLOYEE STOCK BASED COMPENSATION
We record the cost of stock based compensation awards that we have issued to
non-employees for services at either the fair value of the services rendered or
the instruments issued in exchange for such services, whichever is more readily
determinable, using the measurement date guidelines enumerated in Emerging
Issues Task Force ("EITF") Issue 96-18, "Accounting for Equity Instruments That
Are Issued to Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services."
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2006 COMPARED TO THE THREE MONTHS ENDED MARCH 31,
2005.
For the three months ended March 31, 2006, our consolidated revenues amounted to
$261,785 compared to $6,430 for the three months ended March 31, 2005. The
increase is the result of business combinations that we consummated with CSSI in
February 2005 and Entelagent in March 2005.
Cost of Sales for the three months ended March 31, 2006 amounted to $57,419
compared to $21,233 for the three months ended March 31, 2005. Cost of sales
during the three months ended March 31, 2006 and March 31, 2005 includes $27,522
and $19,230, respectively, associated with the amortization of developed
technology that we acquired from CSSI and Entelagent.
Operating expenses amounted to $2,884,026 for the three months ended March 31,
2006 as compared to $1,610,877 for the three months ended March 31, 2005, an
increase of $1,273,149. The increase in operating expenses includes
approximately $466,000 for salaries associated with an increase in the number of
employees from acquired businesses, approximately $517,000 for legal and
professional fees that we incurred principally in connection with the year-end
financial audit, the negotiation and settlement of various legal matters under
the creditor and claimant liabilities restructuring program and the
implementation of the Series A Preferred Financing, approximately $23,000 for
amortization of acquired intangible assets, approximately $858,000 in charges
associated with the settlement of outstanding litigation under the creditor and
claimant liabilities restructuring, approximately $173,000 associated with the
expensing of stock options, approximately $3,000 associated with a stock-based
penalty under a collateralized financing arrangement and approximately $65,000
for increased general and administrative expenses associated with the acquired
businesses. These increases were partially offset by an approximately $464,000
reduction in expense associated with the amortization of stock-based
compensation arrangements and approximately $369,000 reduction in expense
associated with a penalty provision of an Accommodation Agreement.
34
Our consolidated loss from operations for the three months ended March 31, 2006
amounted to $2,679,660 compared to a loss of $1,625,680 for the same period in
2005. Our loss increased as a result of the increases in operating expenses
discussed above.
Interest expense during the three months ended March 31, 2006 amounted to
$1,615,514 as compared to $494,998 for the three months ended March 31, 2005.
The increase is directly related to our issuance of Series A Preferred stock,
issuances of notes and the increased borrowings that we made to fund our working
capital needs and to finance our acquisitions of CSSI, LucidLine and Entelagent.
Non-cash interest relating to the amortization of deferred financing costs and
the accretion of debt discounts during the three months ended March 31, 2006
amounted to approximately $853,039 compared to $414,485 in same period in 2005.
The intrinsic value of the conversion option for bridge note holders, which has
been classified as interest expense amounted to $550,000 for the three months
ended March 31, 2006 compared to $0 in the same period in 2005. Amortization of
deferred finance charges which have been classified as interest expense was
approximately $282,129 in the three months ended March 31, 2006 compared to
$153,520 in the same period in 2005. Accretion of debt discounts during the
three months ended March 31, 2006 were approximately $20,909 compared to
$260,965 in the same period in 2005. Interest income, was $0 and $19,250 in the
three months ended March 31, 2006 and 2005, respectively. Interest income
represents the interest earned from loans that we made to Entelagent prior to
our acquisition of that business on March 30, 2005.
For the three months ended March 31, 2006, the net loss was $4,400,074 or
$(0.07) per share on 62,518,619 weighted average common shares outstanding
compared to a net loss of $2,203,795 or $(0.04) per share on 50,686,749 weighted
average common shares outstanding for the three months ended March 31, 2005.
LIQUIDITY AND CAPITAL RESOURCES
We incurred a net loss of $4,400,074 for the three months ended March 31, 2006,
which includes $2,014,134 of non-cash charges associated with the fair value of
common stock we issued as penalties under certain registration rights agreements
($2,852), fair value of a conversion option in connection with bridge note
holders ($550,000), accretion related to warrants issued in conjunction with
notes payable ($20,909), amortization of deferred financing costs ($282,129),
amortization of deferred compensation ($7,500), loss on issuance of preferred
stock in settlement of debt ($858,213), non-cash increase in interest payable to
a former stockholder ($48,400), depreciation and amortization ($70,796), and a
charge for stock based compensation ($173,335). We also used $957,122 of our
restricted cash escrowed to settle liabilities assumed. Including the amounts
above, we used net cash flows in our operating activities of $3,739,857 during
the three months ended March 31, 2006. Our working capital deficiency at March
31, 2006 amounts to $5,659,898 and we are continuing to experience shortages in
working capital. We are involved in litigation and are being investigated by the
Securities and Exchange Commission with respect to certain of our press releases
and our use of form S-8 to register shares of common stock that we issued to
certain consultants in prior periods. We cannot provide any assurance that the
outcome of these matters will not have a material adverse affect on our ability
to sustain the business. These matters raise substantial doubt about our ability
to continue as a going concern.
We expect to continue incurring losses for the foreseeable future due to the
inherent uncertainty that is related to establishing the commercial feasibility
of technological products and developing a presence in new markets. The
Company's ability to successfully integrate the acquired businesses described in
Note 5 is critical to the realization of its business plan. The Company raised
$4,285,501 of gross proceeds ($3,946,450 net proceeds after the payment of
certain transaction expenses) in financing transactions during the three months
ended March 31, 2006. The Company used $3,739,857 of these proceeds to fund its
operations and a net of $225,228 in investing activities, principally for the
purchase and development of software technology. Additionally, the Company made
$125,000 in legal payments associated with the settlement of accommodation
agreements and incurred $54,000 in deferred financing costs. Subsequent to March
31, 2006 the Company raised approximately $355,000 in additional gross funds in
the Series A Preferred Financing (Note 17).
We are currently in the process of attempting to raise additional capital and
have taken certain steps to conserve our liquidity while we continue to
integrate the acquired businesses. Although we believe that we have access to
capital resources, we have not secured any commitments for additional financing
at this time nor can we provide any assurance that we will be successful in our
efforts to raise additional capital and/or successfully execute our business
plan. In an effort to secure additional financing, the Company has offered its
creditors and claimants an agreement to
35
issue common stock for amounts owed to the holders of the Company's indebtedness
(including lenders, past-due trade accounts, and employees, consultants and
other service providers with claims for fees, wages or expenses) (Note 16).
OFF-BALANCE SHEET ARRANGEMENTS
At March 31, 2006, we did not have any relationships with unconsolidated
entities or financial partnerships, such as entities often referred to as
structured finance, variable interest or special purpose entities, which would
have been established for the purpose of facilitating off-balance sheet
arrangements or other contractually narrow or limited purposes. As such, we are
not exposed to any financing, liquidity, market or credit risk that could arise
if we had engaged in such relationships.
CAUTIONARY STATEMENTS AND RISK FACTORS
The risks noted below and elsewhere in this report and in other documents we
file with the SEC are risks and uncertainties that could cause our actual
results to differ materially from the results contemplated by the
forward-looking statements contained in this report and other public statements
we make.
RISKS RELATED TO OUR COMMON STOCK
THERE IS SUBSTANTIAL DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
We currently have a number of obligations that we are unable to meet without
generating additional revenues or raising additional capital. We are also
subject to substantial litigation and an investigation by the SEC described
elsewhere herein. If we cannot generate additional revenues or raise additional
capital in the near future, we may become insolvent. As of March 31, 2006, our
cash balance was $141,430 and we had a working capital deficit of $5,659,898.
This raises substantial doubt about our ability to continue as a going concern.
Historically, we have funded our capital requirements with debt and equity
financing. Our ability to obtain additional equity or debt financing depends on
a number of factors including our financial performance and the overall
conditions in our industry. If we are not able to raise additional financing or
if such financing is not available on acceptable terms, we may liquidate assets,
seek or be forced into bankruptcy, and/or continue operations but suffer
material harm to our operations and financial condition. These measures could
have a material adverse affect on our ability to continue as a going concern.
We are attempting to restructure any and all claims, liabilities, demands,
causes of action, costs, expenses, attorneys' fees, damages, indemnities, and
obligations of every kind and nature that certain creditors and claimants may
have with us pursuant to the creditor and claimant liabilities restructuring
described in Note 16. Our failure to successfully complete the creditor and
claimant liabilities restructuring could adversely impact our ability to raise
additional financing, or could force us to liquidate assets, or seek bankruptcy
protection. There can be no assurance that we will successfully complete the
creditor and claimant liabilities restructuring. Such a failure could materially
adversely affect our ability to continue as a going concern.
INVESTORS MAY NOT BE ABLE TO ADEQUATELY EVALUATE OUR BUSINESS AND PROSPECTS DUE
TO OUR LIMITED OPERATING HISTORY, LACK OF REVENUES AND LACK OF PRODUCT
OFFERINGS.
We are at an early stage of executing our business plan and have no history of
offering information security capabilities. We were incorporated in Delaware in
2002. Significant business operations only began with the acquisitions completed
in February and March 2005. As a result of our limited history, it may be
difficult to plan operating expenses or forecast our revenues accurately. Our
assumptions about customer or network requirements may be wrong. The revenue and
income potential of these products is unproven, and the markets addressed by
these products are volatile. If such products are not successful, our actual
operating results could be below our expectations and the expectations of
investors and market analysts, which would likely cause the price of our common
stock to decline.
We generated no revenue from operations before December 31, 2004 and only
limited revenues in the year ended December 31, 2005. We have relied on
financing generated from our capital raising activities to fund the
36
implementation of our business plan. We have incurred operating and net losses
and negative cash flows from operations since our inception. As of March 31,
2006, we had an accumulated deficit of approximately $88.7 million. We may
continue to incur operating and net losses, due in part to implementing our
acquisitions strategy, engaging in financing activities and expansion of our
personnel and our business development capabilities. We will continue to seek
financing for the acquisition of other acquisition targets that we may identify
in the future. We continue to believe that we will secure financing in the near
future, but there can be no assurance of our success. If we are unable to obtain
the necessary funding, it will materially adversely affect our ability to
execute our business plan and to continue our operations.
In addition, we may not be able to achieve or maintain profitability, and, even
if we do achieve profitability, the level of any profitability cannot be
predicted and may vary significantly from quarter to quarter.
THERE CAN BE NO GUARANTY THAT A MARKET WILL DEVELOP FOR THE PRODUCTS WE INTEND
TO OFFER.
We currently have a limited offering of products. We intend to acquire products
through the acquisition of existing businesses. There is no guarantee, however,
that a market will develop for Internet security solutions of the type we intend
to offer. We cannot predict the size of the market for Internet security
solutions, the rate at which the market will grow, or whether our target
customers will accept our acquired products.
OUR OPERATING RESULTS MAY FLUCTUATE SIGNIFICANTLY, WHICH MAY RESULT IN
VOLATILITY OR HAVE AN ADVERSE EFFECT ON THE MARKET PRICE OF OUR COMMON STOCK.
The market prices of the securities of technology-related companies have
historically been volatile and may continue to be volatile. Thus, the market
price of our common stock is likely to be subject to wide fluctuations. If our
revenues do not grow or grow more slowly than we anticipate, if operating or
capital expenditures exceed our expectations and cannot be reduced
appropriately, or if some other event adversely affects us, the market price of
our common stock could decline. Only a small public market currently exists for
our common stock and the number of shares eligible for sale in the public market
is currently very limited, but is expected to increase. Sales of substantial
shares in the future would depress the price of our common stock. In addition,
we currently do not receive any stock market research coverage by any recognized
stock market research or trading firm and our shares are not traded on any
national securities exchange. A larger and more active market for our common
stock may not develop.
Because of our limited operations history and lack of assets and revenues to
date, our common stock is believed to be currently trading on speculation that
we will be successful in implementing our acquisition and growth strategies.
There can be no assurance that such success will be achieved. The failure to
implement our acquisitions and growth strategies would likely adversely affect
the market price of our common stock. In addition, if the market for
technology-related stocks or the stock market in general experiences a continued
or greater loss in investor confidence or otherwise fails, the market price of
our common stock could decline for reasons unrelated to our business, results of
operations and financial condition. The market price of our common stock also
might decline in reaction to events that affect other companies in our industry
even if these events do not directly affect us. General political or economic
conditions, such as an outbreak of war, a recession or interest rate or currency
rate fluctuations, could also cause the market price of our common stock to
decline. Our common stock has experienced, and is likely to continue to
experience, these fluctuations in price, regardless of our performance.
WE ARE CURRENTLY SUBJECT TO AN SEC INVESTIGATION WHICH COULD LEAD TO THE
IMPOSITION OF SIGNIFICANT CIVIL PENALTIES AND COULD ADVERSELY AFFECT OUR ABILITY
TO SELL OUR SECURITIES AND/OR HAVE OUR SECURITIES REGISTERED WITH THE SEC AND/OR
VARIOUS STATES IF THE SEC BRINGS AN ACTION AGAINST US.
Pursuant to Section 20(a) of the Securities Act and Section 21(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the staff of
the SEC (the "Staff"), issued an order (In the Matter of Patron Systems, Inc. -
Order Directing a Private Investigation and Designating Officers to Take
Testimony (C-03739-A, February 12, 2004)) (the "Order") that a private
investigation (the "SEC Investigation") be made to determine whether certain of
our actions and certain of the actions of our officers and directors and others
(as described below) violated Section 5(a) and 5(c) of the Securities Act and/or
Section 10 and Rule 10b-5 promulgated under the Exchange Act. Generally, the
Order provides, among other things, that the Staff is investigating (i) the
legality of two (2) separate Registration Statements filed by us on Form S-8,
filed on December 20, 2002 and on April 2, 2003, as amended on
37
April 9, 2003 (collectively, the "Registration Statements"), covering the resale
of, in the aggregate, 4,375,000 shares of common stock issued to various of our
consultants, and (ii) whether in connection with the purchase or sale of shares
of common stock, certain of our officers, directors and others (a) sold common
stock in violation of Section 5 of the Securities Act and/or, (b) made
misrepresentations and/or omissions of material facts and/or employed fraudulent
devices in connection with such purchases and/or sales relating to certain of
our press releases regarding, among other items, proposed mergers and
acquisitions that were never consummated. If the SEC brings an action against
us, it could result in, among other items, a civil injunctive order or an
administrative cease-and-desist order being entered against us, in addition to
the imposition of a significant civil penalty. Moreover, the SEC Investigation
and/or a subsequent SEC action could affect adversely our ability to have our
common stock listed on a stock exchange and/or quoted on The OTC Bulletin Board
or NASDAQ, our ability to sell our securities and/or have our securities
registered with the SEC and/or in various states and/or our ability to implement
our business plan. To date, our legal counsel representing us in such matters
has indicated that the SEC Investigation is ongoing and the Staff has not
indicated whether it will or will not recommend that the SEC bring an
enforcement action against us, our officers, directors and/or others.
THE CONCENTRATION OF OUR CAPITAL STOCK OWNERSHIP WITH INSIDERS IS LIKELY TO
LIMIT THE ABILITY OF OTHER STOCKHOLDERS TO INFLUENCE CORPORATE MATTERS.
As of May 11, 2006, the executive officers, directors and entities affiliated
with any of them together beneficially owned approximately 16.7% of our
outstanding common stock. As a result, these stockholders may be able to
exercise control over matters requiring approval by our stockholders, including
the election of directors and approval of significant corporate transactions.
This concentration of ownership might also have the effect of delaying or
preventing a change in our control that might be viewed as beneficial by other
stockholders.
FUTURE SALES OF SHARES BY EXISTING STOCKHOLDERS COULD CAUSE OUR STOCK PRICE TO
DECLINE.
If our existing or future stockholders sell, or are perceived to sell,
substantial amounts of our common stock in the public market, the market price
of our common stock could decline. As of May 11, 2006, there were 56,398,360
shares of common stock outstanding, of which 9,434,914 shares were held by
directors, executive officers and other affiliates, the sale of which are
subject to volume limitations under Rule 144, various vesting agreements and our
quarterly and other "blackout" periods. Furthermore, shares subject to
outstanding options and warrants and shares reserved for future issuance under
our stock option plan will become eligible for sale in the public market to the
extent permitted by the provisions of various vesting agreements, the lock-up
arrangements and Rule 144 under the Securities Act.
THE UNPREDICTABILITY OF AN ACQUIRED COMPANY'S QUARTERLY RESULTS MAY CAUSE THE
TRADING PRICE OF OUR COMMON STOCK TO DECLINE.
The quarterly revenues and operating results of companies we may acquire will
likely continue to vary in the future due to a number of factors, many of which
are outside of our control. Any of these factors could cause the price of our
common stock to decline. The primary factors that may affect future revenues and
future operating results include the following:
o the demand for our subsidiaries' current product offerings and
our future products;
o the length of sales cycles;
o the timing of recognizing revenues;
o new product introductions by us or our competitors;
o changes in our pricing policies or the pricing policies of our
competitors;
o variations in sales channels, product costs or mix of products
sold;
o our ability to develop, introduce and ship in a timely manner
new products and product enhancements that meet customer
requirements;
o our ability to obtain sufficient supplies of sole or limited
source components for our products;
o variations in the prices of the components we purchase;
38
o our ability to attain and maintain production volumes and
quality levels for our products at reasonable prices at our
third-party manufacturers;
o our ability to manage our customer base and credit risk and to
collect our accounts receivable; and
o the financial strength of our value-added resellers and
distributors.
Our operating expenses are largely based on anticipated revenues and a high
percentage of our expenses are, and will continue to be, fixed in the short
term. As a result, lower than anticipated revenues for any reason could cause
significant variations in our operating results from quarter to quarter and,
because of our rapidly growing operating expenses, could result in substantial
operating losses.
OUR COMMON STOCK IS SUBJECT TO THE SEC'S PENNY STOCK RULES. THEREFORE,
BROKER-DEALERS MAY EXPERIENCE DIFFICULTY IN COMPLETING CUSTOMER TRANSACTIONS AND
TRADING ACTIVITY IN OUR SECURITIES MAY BE ADVERSELY AFFECTED.
If at any time a company has net tangible assets of $5,000,000 or less and the
common stock has a market price per share of less than $5.00, transactions in
the common stock may be subject to the "penny stock" rules promulgated under the
Exchange Act. Under these rules, broker-dealers who recommend such securities to
persons other than institutional accredited investors must:
o make a special written suitability determination for the
purchaser;
o receive the purchaser's written agreement to a transaction
prior to sale;
o provide the purchaser with risk disclosure documents which
identify certain risks associated with investing in "penny
stocks" and which describe the market for these "penny stocks"
as well as a purchaser's legal remedies; and
o obtain a signed and dated acknowledgment from the purchaser
demonstrating that the purchaser has actually received the
required risk disclosure document before a transaction in a
"penny stock" can be completed.
If our common stock becomes subject to these rules, broker-dealers may find it
difficult to effectuate customer transactions and trading activity in our
securities may be adversely affected. As a result, the market price of our
securities may be depressed, and stockholders may find it more difficult to sell
their shares of our common stock.
RISKS RELATED TO OUR BUSINESS
WE MAY BE UNABLE TO SUCCESSFULLY INTEGRATE ACQUIRED BUSINESSES.
Our business plan is dependent upon the acquisition and integration of companies
that have previously operated independently. To date we have experienced delays
in implementing our business plan as a result of limited capital resources,
which have had a material adverse effect on our business. Further delays in the
process of integrating could cause an interruption of, or loss of momentum in,
the activities of our business and the loss of key personnel. The diversion of
management's attention and any delays or difficulties encountered in connection
with our integration of acquired operations could have an adverse effect on our
business, results of operations, financial condition or prospects.
WE CURRENTLY DO NOT HAVE SUFFICIENT REVENUES TO SUPPORT OUR BUSINESS ACTIVITIES
AND IF OPERATING LOSSES CONTINUE, WILL BE REQUIRED TO OBTAIN ADDITIONAL CAPITAL
THROUGH FINANCINGS WHICH WE MAY NOT BE ABLE TO SECURE.
To achieve our intended growth, we will require substantial additional capital.
We have encountered difficulty and delays in raising capital to date and the
market environment for development stage companies, like ours, remains
particularly challenging. There can be no assurance that funds will be available
when needed or on acceptable terms. Technology companies in general have
experienced difficulty in recent years in accessing capital. Our inability to
obtain additional financing may require us to delay, scale back or eliminate
certain of our growth plans which could have a material and adverse effect on
our business, financial condition or results of operations or could cause us to
cease operations. Even if we are able to obtain additional financing, such
financing could be structured as equity financing that would dilute the
ownership percentage of any investor in our securities.
39
DOWNTURNS IN THE INTERNET INFRASTRUCTURE, NETWORK SECURITY AND RELATED MARKETS
MAY DECREASE OUR REVENUES AND MARGINS.
The market for our current products and other products we intend to offer
depends on economic conditions affecting the broader Internet infrastructure,
network security and related markets. Downturns in these markets may cause
enterprises and carriers to delay or cancel security projects, reduce their
overall or security-specific information technology budgets or reduce or cancel
orders for our current products and other products we intend to offer. In this
environment, customers such as distributors, value-added resellers and carriers
may experience financial difficulty, cease operations and fail to budget or
reduce budgets for the purchase of our current products or other products we
intend to offer. This, in turn, may lead to longer sales cycles, delays in
purchase decisions, payment and collection, and may also result in price
pressures, causing us to realize lower revenues, gross margins and operating
margins. In addition, general economic uncertainty caused by potential
hostilities involving the United States, terrorist activities, the decline in
specific markets such as the service provider market in the United States, and
the general decline in capital spending in the information technology sector
make it difficult to predict changes in the purchase and network requirements of
our potential customers and the markets we intend to serve. We believe that, in
light of these events, some businesses may curtail or eliminate capital spending
on information technology. A decline in capital spending in the markets we
intend to serve may adversely affect our future revenues, gross margins and
operating margins and make it necessary for us to gain significant market share
from our future competitors in order to achieve our financial goals and achieve
profitability.
COMPETITION MAY DECREASE OUR PROJECTED REVENUES, MARKET SHARE AND MARGINS.
The market for network security products is highly competitive, and we expect
competition to intensify in the future. Competitors may gain market share and
introduce new competitive products for the same markets and customers we intend
to serve with our products. These products may have better performance, lower
prices and broader acceptance than the products we currently offer or intend to
offer.
Many of our potential competitors have longer operating histories, greater name
recognition, large customer bases and significantly greater financial,
technical, sales, marketing and other resources than we have. In addition, some
of our potential competitors currently combine their products with other
companies' networking and security products. These potential competitors also
often combine their sales and marketing efforts. Such activities may result in
reduced prices, lower gross and operating margins and longer sales cycles for
the products we currently offer and intend to offer. If any of our larger
potential competitors were to commit greater technical, sales, marketing and
other resources to the markets we intend to serve, or reduce prices for their
products over a sustained period of time, our ability to successfully sell the
products we intend to offer, increase revenue or meet our or market analysts
expectations could be adversely affected.
FAILURE TO ADDRESS EVOLVING STANDARDS IN THE NETWORK SECURITY INDUSTRY AND
SUCCESSFULLY DEVELOP AND INTRODUCE NEW PRODUCTS OR PRODUCT ENHANCEMENTS WOULD
CAUSE OUR REVENUES TO DECLINE.
The market for network security products is characterized by rapid technological
change, frequent new product introductions, changes in customer requirements and
evolving industry standards. We expect to introduce our products and
enhancements to existing products to address current and evolving customer
requirements and broader networking trends and vulnerabilities. We also expect
to develop products with strategic partners and incorporate third-party advanced
security capabilities into our intended product offerings. Some of these
products and enhancements may require us to develop new hardware architectures
that involve complex and time consuming processes. In developing and introducing
our intended product offerings, we have made, and will continue to make,
assumptions with respect to which features, security standards and performance
criteria will be required by our potential customers. If we implement features,
security standards and performance criteria that are different from those
required by our potential customers, market acceptance of our intended product
offerings may be significantly reduced or delayed, which would harm our ability
to penetrate existing or new markets.
Furthermore, we may not be able to develop new products or product enhancements
in a timely manner, or at all. Any failure to develop or introduce these new
products and product enhancements might cause our existing products
40
to be less
competitive, may adversely affect our ability to sell solutions to address large
customer deployments and, as a consequence, our revenues may be adversely
affected. In addition, the introduction of products embodying new technologies
could render existing products we intend to offer obsolete, which would have a
direct, adverse effect on our market share and revenues. Any failure of our
future products or product enhancements to achieve market acceptance could cause
our revenues to decline and our operating results to be below our expectations
and the expectations of investors and market analysts, which would likely cause
the price of our common stock to decline.
WE HAVE EXPERIENCED ISSUES WITH OUR FINANCIAL SYSTEMS, CONTROLS AND OPERATIONS
THAT COULD HARM OUR FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
Our ability to sell our intended product offerings and implement our business
plan successfully in a volatile and growing market requires effective management
and financial systems and a system of financial processes and controls. Through
the quarter ended December 31, 2005, our Chief Executive Officer and Acting
Chief Financial Officer evaluated the effectiveness of our disclosure controls
and procedures in accordance with Exchange Act Rules 13a-15 or 15d-15 and
identified material weakness in our internal controls. These material weaknesses
affected our ability to timely file our reports with the SEC and communicate
critical information to management that was needed to make business decisions.
Although we have taken steps to correct these previous deficiencies and are
currently in compliance with the SEC's reporting requirements, we have limited
capital resources and are still at risk for the loss of key personnel in our
finance department. The loss of key personnel in our finance department, or any
other conditions that could disrupt our operations in this area, could have a
material adverse affect on our ability to communicate critical information to
management and our investors, raise capital and/or maintain compliance with our
SEC reporting obligations. These circumstances, if they arise, could have a
material adverse affect on our business.
We have limited management resources to date and are still establishing our
management and financial systems. Growth, to the extent it occurs, is likely to
place a considerable strain on our management resources, systems, processes and
controls. To address these issues, we will need to continue to improve our
financial and managerial controls, reporting systems and procedures, and will
need to continue to expand, train and manage our work force worldwide. If we are
unable to maintain an adequate level of financial processes and controls, we may
not be able to accurately report our financial performance on a timely basis and
our business and stock price would be harmed.
IF OUR FUTURE PRODUCTS DO NOT INTEROPERATE WITH OUR END CUSTOMERS' NETWORKS,
INSTALLATIONS WOULD BE DELAYED OR CANCELLED, WHICH COULD SIGNIFICANTLY REDUCE
OUR ANTICIPATED REVENUES.
Future products will be designed to interface with our end customers' existing
networks, each of which have different specifications and utilize multiple
protocol standards. Many end customers' networks contain multiple generations of
products that have been added over time as these networks have grown and
evolved. Our future products must interoperate with all of the products within
these networks as well as with future products that might be added to these
networks in order to meet end customers' requirements. If we find errors in the
existing software used in our end customers' networks, we may elect to modify
our software to fix or overcome these errors so that our products will
interoperate and scale with their existing software and hardware. If our future
products do not interoperate with those within our end customers' networks,
installations could be delayed or orders for our products could be cancelled,
which could significantly reduce our anticipated revenues.
AS A PUBLIC COMPANY, WE MAY INCUR INCREASED COSTS AS A RESULT OF RECENTLY
ENACTED AND PROPOSED CHANGES IN LAWS AND REGULATIONS RELATING TO CORPORATE
GOVERNANCE MATTERS AND PUBLIC DISCLOSURE.
Recently enacted and proposed changes in the laws and regulations affecting
public companies, including the provisions of the Sarbanes-Oxley Act of 2002 and
rules adopted or proposed by the SEC will result in increased costs for us as we
evaluate the implications of these laws, regulations and standards and respond
to their requirements. These laws and regulations could make it more difficult
or more costly for us to obtain certain types of insurance, including director
and officer liability insurance, and we may be forced to accept reduced policy
limits and coverage or incur substantially higher costs to obtain the same or
similar coverage. The impact of these events could also make it more difficult
for us to attract and retain qualified persons to serve on our board of
directors,
41
board committees or as executive officers. We cannot estimate the amount or
timing of additional costs we may incur as a result of these laws and
regulations.
WE DEPEND ON OUR KEY PERSONNEL TO MANAGE OUR BUSINESS EFFECTIVELY IN A RAPIDLY
CHANGING MARKET, AND IF WE ARE UNABLE TO HIRE ADDITIONAL PERSONNEL OR RETAIN
EXISTING PERSONNEL, OUR ABILITY TO EXECUTE OUR BUSINESS STRATEGY WOULD BE
IMPAIRED.
Our future success depends upon the continued services of our executive
officers. The loss of the services of any of our key employees, the inability to
attract or retain qualified personnel in the future, or delays in hiring
required personnel, could delay the development and introduction of, and
negatively impact our ability to sell, our intended product offerings.
WE MIGHT HAVE TO DEFEND LAWSUITS OR PAY DAMAGES IN CONNECTION WITH ANY ALLEGED
OR ACTUAL FAILURE OF OUR PRODUCTS AND SERVICES.
Because our intended product offerings and services provide and monitor network
security and may protect valuable information, we could face claims for product
liability, tort or breach of warranty. Anyone who circumvents our security
measures could misappropriate the confidential information or other property of
end customers using our products, or interrupt their operations. If that
happens, affected end customers or others may sue us. Defending a lawsuit,
regardless of its merit, could be costly and could divert management attention.
Our business liability insurance coverage may be inadequate or future coverage
may be unavailable on acceptable terms or at all.
WE COULD BECOME SUBJECT TO LITIGATION REGARDING INTELLECTUAL PROPERTY RIGHTS
THAT COULD BE COSTLY AND RESULT IN THE LOSS OF SIGNIFICANT RIGHTS.
In recent years, there has been significant litigation in the United States
involving patents and other intellectual property rights. We may become a party
to litigation in the future to protect our intellectual property or as a result
of an alleged infringement of another party's intellectual property. Claims for
alleged infringement and any resulting lawsuit, if successful, could subject us
to significant liability for damages and invalidation of our proprietary rights.
These lawsuits, regardless of their success, would likely be time-consuming and
expensive to resolve and would divert management time and attention. Any
potential intellectual property litigation could also force us to do one or more
of the following:
o stop or delay selling, incorporating or using products that
use the challenged intellectual property; and/or
o obtain from the owner of the infringed intellectual property
right a license to sell or use the relevant technology, which
license might not be available on reasonable terms or at all;
or redesign the products that use that technology.
If we are forced to take any of these actions, our business might be seriously
harmed. Our insurance may not cover potential claims of this type or may not be
adequate to indemnify us for all liability that could be imposed.
THE INABILITY TO OBTAIN ANY THIRD-PARTY LICENSE REQUIRED TO DEVELOP NEW PRODUCTS
AND PRODUCT ENHANCEMENTS COULD REQUIRE US TO OBTAIN SUBSTITUTE TECHNOLOGY OF
LOWER QUALITY OR PERFORMANCE STANDARDS OR AT GREATER COST, WHICH COULD SERIOUSLY
HARM OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
From time to time, we may be required to license technology from third parties
to develop new products or product enhancements. Third-party licenses may not be
available to us on commercially reasonable terms or at all. Our inability to
obtain any third-party license required to develop new products or product
enhancements could require us to obtain substitute technology of lower quality
or performance standards or at greater cost, which could seriously harm our
business, financial condition and results of operations.
42
GOVERNMENTAL REGULATIONS AFFECTING THE IMPORT OR EXPORT OF PRODUCTS COULD
NEGATIVELY AFFECT OUR REVENUES.
Governmental regulation of imports or exports or failure to obtain required
export approval of our encryption technologies could harm our international and
domestic sales. The United States and various foreign governments have imposed
controls, export license requirements and restrictions on the import or export
of some technologies, especially encryption technology. In addition, from time
to time, governmental agencies have proposed additional regulation of encryption
technology, such as requiring the escrow and governmental recovery of private
encryption keys.
In particular, in light of recent terrorist activity, governments could enact
additional regulation or restrictions on the use, import or export of encryption
technology. Additional regulation of encryption technology could delay or
prevent the acceptance and use of encryption products and public networks for
secure communications. This might decrease demand for our intended product
offerings and services. In addition, some foreign competitors are subject to
less stringent controls on exporting their encryption technologies. As a result,
they may be able to compete more effectively than we can in the domestic and
international network security market.
MANAGEMENT COULD INVEST OR SPEND OUR CASH OR CASH EQUIVALENTS AND INVESTMENTS IN
WAYS THAT MIGHT NOT ENHANCE OUR RESULTS OF OPERATIONS OR MARKET SHARE.
We have made no specific allocations of our cash or cash equivalents and
investments. Consequently, management will retain a significant amount of
discretion over the application of our cash or cash equivalents and investments
and could spend the proceeds in ways that do not improve our operating results
or increase our market share. In addition, these proceeds may not be invested to
yield a favorable rate of return.
ITEM 3. CONTROLS AND PROCEDURES
Members of our management, including our Chief Executive Officer and Chief
Financial Officer, evaluated the effectiveness of our disclosure controls and
procedures, as defined by paragraph (e) of Exchange Act Rules 13(a)-15 or
15(d)-15 for the fiscal quarter ended March 31, 2006, the period covered by this
report. Based on that evaluation, our Chief Executive Officer and Chief
Financial Officer concluded that, as of March 31, 2006 our disclosure controls
and procedures were not effective.
DISCLOSURE CONTROLS AND INTERNAL CONTROLS
Disclosure controls are procedures that are designed with the objective of
ensuring that information required to be disclosed in our reports filed under
the Securities Exchange Act of 1934, as amended, such as this Report, is
recorded, processed, summarized and reported within the time periods specified
in the SEC's rules and forms. Disclosure controls are also designed with the
objective of ensuring that such information is accumulated and communicated to
our management, including our Chief Executive Officer and Chief Financial
Officer, as appropriate, to allow timely decisions regarding required
disclosure. Internal controls are procedures which are designed with the
objective of providing reasonable assurance that our transactions are properly
authorized, recorded and reported and our assets are safeguarded against
unauthorized or improper use, to permit the preparation of our financial
statements in conformity with generally accepted accounting principles.
Our company is not an "accelerated filer" (as defined in the Securities Exchange
Act) and is not required to deliver management's report on control over our
financial reporting until our year ended December 31, 2006. Nevertheless, we
identified certain matters that constitute material weakness (as defined under
the Public Company Accounting Oversight Board Auditing Standard No. 2) in our
internal controls over financial reporting.
In previous periods, we reported that we had identified certain matters that
constituted material weakness (as defined under the Public Company Accounting
Oversight Board Auditing Standard No. 2) in our internal controls over financial
reporting. The material weaknesses that we identified related to the fact that
that our overall financial reporting structure and current staffing levels were
not sufficient to support the complexity of our financial reporting
requirements, we lacked the expertise we needed to apply complex accounting
principles relating to our business
43
combinations and participation in equity transactions and lacked the structure
we need to ensure the timely filing of our tax returns.
Until recently, we did not have any full time employees including a Principal
Accounting Officer assigned to perform any duties related to our financial
reporting obligations. Accordingly we were unable, until the second quarter of
2005, to record, process and summarize all of the information that we needed to
close our books and records on a timely basis and deliver our reports to the
Securities and Exchange Commission within the time frames required under the
Commission's rules.
During the third quarter of 2005, under the direction of our Chief Executive
Officer, we engaged the services of an outside financial reporting specialist
who, together with our full time personnel, undertook the process of forming a
system of internal controls. We have since hired personnel and instituted
various procedures that have enabled us to record, process and summarize
transactions within the time frames required to timely file our reports under
the Commission's rules. These improvements have enabled us to resolve all
previous delinquencies relating to the filing of our annual and quarterly
reports with the SEC as of the quarter ended June 30, 2005. We also resolved the
delinquent filing of our Form 8-K/A's from the acquisitions of CSSI, Entelagent
and LucidLine in December 2005. We also assigned a key member of the accounting
department with the task of filing previously delinquent tax returns and are
undertaking a structure to ensure that our tax returns in the future are filed
on a timely basis. We recently completed filing all delinquent tax returns
through the year ended December 31, 2004. This member of our accounting
department is also working with an outside specialist to ensure that our tax
returns for the year ended December 31, 2005 are filed in a timely manner.
Although the improvements we have made in our financial reporting processes have
enabled us to (a) bring the Company into compliance with the SEC's reporting
requirement, (b) better plan transactions that involve the application of
complex accounting principles and (c) improve our ability to comply with our tax
reporting obligations, additional time is still required to test and document
our internal and disclosure control processes to ensure their operating
effectiveness.
We believe that the changes we have made in our financial reporting procedures
have enabled us to substantially reduce previous financial reporting risks that
existed as a result of our limited resources. We are continuing to evaluate our
risks and resources. We will seek to make additional changes in our financial
reporting systems and procedures wherever necessary and appropriate to ensure
their effectiveness in future periods.
44
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
On January 1, 2006, the Company and Mr. Patrick Allin and The Allin Dynastic
Trust entered into Stock Subscription Agreement and Mutual Release agreements
(the "Series A-1 Agreements") to settle all claims in law, equity, or otherwise
("Allin Subscriber Claims") arising out of the business relationship between the
parties that Mr. Allin and The Allin Dynastic Trust may have with the Company.
The Series A-1 Agreements provide for the issuance of 1,875,000 shares of Series
A-1 Preferred Stock to Mr. Allin and 625,000 shares of Series A-1 Preferred
Stock to The Allin Dynastic Trust. The aggregate purchase price is equivalent to
the value of the Allin Subscriber Claims being settled through this settlement
and release. The total of these claims at December 31, 2005 amounted to
$2,000,000. Mr. Allin and the Allin Dynastic Trust are each deemed to have paid
for the Series A-1 Preferred Stock through the settlement and release of Allin
Subscriber Claims. See Note 17 for further details of the Series A-1 Preferred
Stock and Note 16 for the creditor and claimant liabilities restructuring.
On January 5, 2006, Mark P. Gertz, Trustee in bankruptcy for Arter & Hadden,
LLP, filed an Adversary Complaint for Recovery of Assets of the Estate in the
United States Bankruptcy Court Northern District of Ohio Eastern Division,
against the Company as successor in merger to Entelagent. Mr. Gertz seeks
$32,278.18 plus interest accruing at the statutory rate since July 15, 2003 for
services rendered by Arter & Hadden, LLP to Entelagent. The Company intends to
respond to this complaint within the time allotted by statute. The Company
intends to attempt to settle this claim as part of the creditor and claimant
liabilities restructuring (Note 16).
While the Company believes it has defenses to the claims noted above,
notwithstanding the fact that the Company intends to vigorously defend these
actions, there can be no assurance the Company will be successful in its defense
of any of these claims. In the event the Company is required to pay damages in
connection with any one or more of the claims asserted in these actions, such
payment could have a material adverse effect on the Company's business and
operations.
On February 14, 2006, the Company and Richard Linting entered into a Stock
Subscription Agreement & Mutual Release ("Linting Agreement") to settle all
claims in law, equity or otherwise ("Linting Subscriber Claims") arising out of
the business relationship between the parties that Mr. Linting may have with the
Company. The Linting Agreement provides for the issuance of 1,777,261 shares
(the "Shelved Stock") of Series A-1 Preferred Stock. The aggregate purchase
price is equivalent to the value of the Linting Subscriber Claims being settled
through this settlement and release. The total set aside purchase price for the
Shelved Stock shall be $0.80 per share or an aggregate of $1,421,809. Mr.
Linting is deemed to have paid for the Series A-1 Preferred Stock through the
settlement and release of the Linting Subscriber Claims. This agreement provides
for the transfer of the Shelved Stock in stock certificate installments and in
such numbers and at such times as directed by Mr. Linting. See Note 17 for
further details of the Series A-1 Preferred Stock and Note 16 for the creditor
and claimant liabilities restructuring.
On March 3, 2006, the Company, Ms. Graul and a third party ("Buyer") entered
into an arrangement providing for Ms. Graul to assign and transfer all rights,
title and interest in her original claim of $931,659 against the Company to the
Buyer in exchange for a cash payment in the amount of $180,000. On March 15,
2006, the Company advanced the $180,000 payment to Ms. Graul in exchange for her
immediate release of all claims against the Company. The Company is currently
awaiting payment in the same amount from the Buyer in order to complete the
assignment of such claim to the Buyer. This arrangement further provides for the
Company to acknowledge Ms. Graul's original claim for the benefit of the Buyer,
the rescission of the August 2005 settlement and release, and for the Buyer to
participate in the creditor and claimant liabilities restructuring (Note 16)
with respect to the settlement of Ms. Graul's original claim.
On March 27, 2006, the Company reached agreement with Paul Harary, Paris
McKinzie, Maria Caporicci, LLB Ltd. and DGC, Inc. (the "Subscribers") whereby
each of the Subscribers and the Company mutually release the other party and its
respective stockholders, directors, officers, employees, etc. from any and all
past, present and future claims that can or have been brought by the other party
relating to any act or omission occurring on or prior to the date of the
Agreement. Additionally, the Company agreed to a payment to the Subscribers,
including attorneys' fees,
45
of $125,090. The Subscribers agreed to purchase from the Company 3,000,000
shares of the Company's Series A-1 Preferred Stock, the purchase price for the
stock shall be $0.80 per share and shall be paid through this settlement and
release of $2,400,000 of Subscriber claims. See Note 17 for further details of
the Series A-1 Preferred Stock and Note 16 for the creditor and claimant
liabilities restructuring.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
The following unregistered securities have been sold by us during the period
from January 1, 2006 to March 31, 2006:
NAME OF NAME OR CLASS OF
DATE OF GRANT TITLE AND AMOUNT OF PRINCIPAL PERSONS WHO RECEIVED CONSIDERATION
SECURITIES SOLD UNDERWRITER SECURITIES RECEIVED
------------- ------------------------------ ----------- ------------------------- ---------------
January 2006 1,875,000/Series A-1 Preferred None Patrick J. Allin $1,500,000 in
Stock cancelled
debt(1)
January 2006 625,000/Series A-1 Preferred None The Allin Dynastic Trust $500,000 in
Stock cancelled
debt(2)
February 2006 1,777,261/Series A-1 Preferred None Richard Linting $1,421,809 in
Stock cancelled
debt(3)
March 2006 893/Series A Preferred Stock None 56 Accredited Investors $4,465,501(4)
in Series A Preferred
Stock Financing
March 2006 29,142,819/Series A-1 Preferred None Creditors and Claimants $23,314,253 in
Stock in the Company's Debt cancelled
Restructuring debt(5)
----------
(1) On January 1, 2006, we issued 1,875,000 shares of Series A-1 Preferred
Stock in consideration of $1,500,000 in outstanding obligations owed to
Patrick J. Allin.
(2) On January 1, 2006, we issued 625,000 shares of Series A-1 Preferred Stock
in consideration of $500,000 in outstanding obligations owed to The Allin
Dynastic Trust.
(3) On February 14, 2006, we issued 1,777,261 shares of Series A-1 Preferred
Stock in consideration of $1,421,809 in outstanding obligations owed to
Richard Linting.
(4) On March 27, 2006, we issued 893 shares of Series A Preferred Stock in
consideration of $4,285,501 in cash and $180,000 financing charge.
(5) On March 27, 2006, we issued 29,142,819 shares of Series A-1 Preferred
Stock in consideration for the cancellation of $23,314,253 of debt
cancellation and claims settlement under the creditor and claimant
liabilities restructuring.
46
The following unregistered derivative securities (options and warrants) have
been issued by us during the period from January 1, 2006 to March 31, 2006:
NAME OF NAME OR CLASS OF
DATE OF GRANT TITLE AND AMOUNT OF SECURITIES PRINCIPAL PERSONS WHO RECEIVED CONSIDERATION
GRANTED/EXERCISE PRICE IF APPLICABLE UNDERWRITER SECURITIES RECEIVED
------------- ------------------------------------ ----------- ---------- --------
January 2006 600,000/Common Stock Purchase None Apex Investment Fund V, $0.00(6)
Warrants L.P.
February 2006 180,000/Common Stock Purchase None Apex Investment Fund V, $0.00(7)
Warrants L.P.
February 2006 37,500/Common Stock Purchase None Apex Investment Fund V, $0.00(8)
Warrants L.P.
March 2006 192,500/Common Stock Purchase None Apex Investment Fund V, $0.00(9)
Warrants L.P.
March 2006 112,500/Common Stock Purchase None Apex Investment Fund V, $0.00(10)
Warrants L.P.
March 2006 75,000/Common Stock Purchase None Apex Investment Fund V, $0.00(11)
Warrants L.P.
March 2006 18,606,278/Common Stock Purchase None 56 Accredited Investors $0.00(12)
Warrants in Series A Preferred
Stock
March 2006 5,950,837/Common Stock Purchase None Laidlaw & Company (UK) $0.00(13)
Warrants Ltd.
----------
(6) On January 28, 2006, we issued warrants to purchase up to 600,000 shares of
our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(7) On February 13, 2006, we issued warrants to purchase up to 180,000 shares
of our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(8) On February 21, 2006, we issued warrants to purchase up to 37,500 shares of
our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(9) On March 1, 2006, we issued warrants to purchase up to 192,500 shares of
our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(10) On March 17, 2006, we issued warrants to purchase up to 112,500 shares of
our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(11) On March 22, 2006, we issued warrants to purchase up to 75,000 shares of
our common stock to Apex Investment Fund V, L.P. who invested in our
Interim Bridge Financing III. The warrants have a term of 5 years and an
exercise price of $0.60 per share.
(12) On March 27, 2006, we issued warrants to purchase up to 18,606,278 shares
of our common stock to 56 accredited investors who purchased our Series A
Preferred Stock . The warrants have a term of 5 years and an exercise price
of $0.10 per share.
(13) On March 27, 2006, we issued warrants to purchase up to 5,950,837 shares of
our common stock to Laidlaw & Company (UK) Ltd. in connection with services
rendered to us as placement agent for the Series A Preferred Financing. The
warrants have a term of 5 years and an exercise price of $0.10 per share.
47
The above unregistered securities were issued pursuant to an exemption from the
registration requirements of the Securities Act under Section 4(2) of the
Securities Act.
ITEM 6. EXHIBITS
See attached Exhibit Index.
48
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.
Date: May 22, 2006 PATRON SYSTEMS, INC.
--------------------
(Registrant)
/S/ ROBERT CROSS
------------------------------
By: Robert Cross
Its: Chief Executive Officer
/S/ MARTIN T. JOHNSON
------------------------------
By: Martin T. Johnson
Its: Chief Financial Officer
49
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
-------- ----------------------------------------------------------------------
10.1 Form of Stock Subscription Agreement and Mutual Release issued by
Patron Systems, Inc. in favor of each of the Creditors and/or
Claimants exchanging claims for shares of the Series A-1 Preferred
Stock of Patron Systems, Inc. Incorporated by reference to Exhibit
10.4 to the Current Report on Form 8-K filed on March 31, 2006.
10.2 Employment Agreement dated February 17, 2006, between Patron Systems,
Inc. and Braden Waverley. Incorporated by reference to Exhibit 10.1 to
the Current Report on Form 8-K filed February 23, 2006.
10.3 Employment Agreement dated February 17, 2006, between Patron Systems,
Inc. and Martin Johnson. Incorporated by reference to Exhibit 10.2 to
the Current Report on Form 8-K filed February 23, 2006.
10.4 Option Agreement dated February 17, 2006, between Patron Systems, Inc.
and Braden Waverley. Incorporated by reference to Exhibit 10.3 to the
Current Report on Form 8-K filed February 23, 2006.
10.5 Option Agreement dated February 17, 2006, between Patron Systems, Inc.
and Martin Johnson. Incorporated by reference to Exhibit 10.4 to the
Current Report on Form 8-K filed February 23, 2006.
10.6 Form of Subscription Agreement between Patron Systems, Inc. and each
of the purchasers of shares of the Series A Preferred Stock of Patron
Systems, Inc. Incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K filed on March 31, 2006.
10.7 Form of Common Stock Purchase Warrant issued by Patron Systems, Inc.
in favor of each of the purchasers of shares of the Series A Preferred
Stock of Patron Systems, Inc. Incorporated by reference to Exhibit
10.2 to the Current Report on Form 8-K filed on March 31, 2006.
10.8 Registration Rights Agreement dated March 27, 2006, among Patron
Systems, Inc. and each of the purchasers of shares of the Series A
Preferred Stock of Patron Systems, Inc. Incorporated by reference to
Exhibit 10.3 to the Current Report on Form 8-K filed on March 31,
2006.
10.9 Post Closing Escrow Agreement dated March 27, 2006, between Stubbs
Alderton & Markiles, LLP and Patron Systems, Inc. Incorporated by
reference to Exhibit 10.5 to the Current Report on Form 8-K filed on
March 31, 2006.
31.1 Certification of Principal Executive Officer pursuant to Securities
Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Principal Financial Officer pursuant to Securities
Exchange Act Rules 13a-14(a) and 15d-14(a) as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of Principal Executive Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
32.2 Certification of Principal Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
EX-1