UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
| x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period
ended September 30, 2015
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ____________ to
Commission file number 000-05576
SPHERIX INCORPORATED
(Exact name of Registrant
as specified in its charter)
Delaware |
|
52-0849320 |
(State or other jurisdiction of incorporation
or
organization) |
|
(I.R.S. Employer Identification No.) |
6430 Rockledge Drive, Suite 503
Bethesda, MD 20817
(Address of principal executive offices and
Zip Code)
(703) 992-9260
(Registrant’s telephone number, including
area code)
Indicate by check mark whether the Registrant
(1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes x No ¨
Indicate by check mark whether the Registrant
has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted
and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter
period that the Registrant was required to submit and post such files.) Yes x No
¨
Indicate by check mark whether the Registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
Large Accelerated Filer ¨ Accelerated
Filer ¨ Non-accelerated Filer ¨ Smaller
Reporting Company x
Indicate by check mark whether the Registrant
is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No
x
Indicate the number of shares outstanding of
each of the Registrant’s classes of Common Stock, as of the latest practicable date.
Class |
|
Outstanding as of November 3, 2015 |
Common Stock, $0.0001 par value |
|
34,459,430 shares |
Spherix Incorporated and Subsidiaries
Form 10-Q
For the Quarter Ended September 30, 2015
Index
Part I. Financial Information
Item 1. Financial Statements
SPHERIX INCORPORATED AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(in thousands except share and per share
amounts)
| |
September 30, | | |
December 31, | |
| |
2015 | | |
2014 | |
| |
(Unaudited) | | |
| |
ASSETS | |
| | | |
| | |
Current assets | |
| | | |
| | |
Cash and cash equivalents | |
$ | 157 | | |
$ | 805 | |
Marketable securities | |
| 775 | | |
| 3,500 | |
Prepaid expenses and other assets | |
| 20 | | |
| 107 | |
Total current assets | |
| 952 | | |
| 4,412 | |
| |
| | | |
| | |
Property and equipment, net | |
| 3 | | |
| 4 | |
Patent portfolios, net | |
| 13,910 | | |
| 55,004 | |
Goodwill | |
| - | | |
| 1,712 | |
Deposit | |
| 26 | | |
| 26 | |
Total assets | |
$ | 14,891 | | |
$ | 61,158 | |
| |
| | | |
| | |
LIABILITIES AND STOCKHOLDERS' EQUITY | |
| | | |
| | |
Current liabilities | |
| | | |
| | |
Accounts payable and accrued expenses | |
$ | 441 | | |
$ | 728 | |
Accrued salaries and benefits | |
| 215 | | |
| 329 | |
Warrant liabilities | |
| 1,759 | | |
| - | |
Short-term lease liabilities | |
| 177 | | |
| 173 | |
Total current liabilities | |
| 2,592 | | |
| 1,230 | |
| |
| | | |
| | |
Long-term lease liabilities | |
| 274 | | |
| 407 | |
Total liabilities | |
| 2,866 | | |
| 1,637 | |
| |
| | | |
| | |
Series I redeemable preferred stock, $0.0001 par value; 29,940 and 35,541 shares issued and outstanding at September 30, 2015 and December 31, 2014, respectively; liquidation preference of $167 per share | |
| 5,000 | | |
| 5,935 | |
| |
| | | |
| | |
Commitments and contingencies | |
| | | |
| | |
| |
| | | |
| | |
Stockholders' equity | |
| | | |
| | |
Preferred Stock, $0.0001 par value, 50,000,000 shares authorized; | |
| | | |
| | |
Series A: no shares issued and outstanding at September 30, 2015 and December 31, 2014; liquidation preference $0.0001 per share | |
| | | |
| | |
Convertible preferred stock | |
| - | | |
| - | |
Series C: 1 share issued and outstanding at September 30, 2015 and December 31, 2014; liquidation preference $0.0001 per share | |
| - | | |
| - | |
Series D: 4,725 shares issued and outstanding at September 30, 2015 and December 31, 2014, respectively; liquidation value of $0.0001 per share | |
| - | | |
| - | |
Series D-1: 834 shares issued and outstanding at September 30, 2015 and December 31, 2014, respectively; liquidation value of $0.0001 per share | |
| - | | |
| - | |
Series F-1: no shares issued and outstanding at September 30, 2015 and December 31, 2014, respectively; liquidation preference $0.0001 per share | |
| - | | |
| - | |
Series H: 439,043 shares issued and outstanding at September 30, 2015 and December 31, 2014, respectively; liquidation preference $83.50 per share | |
| - | | |
| - | |
Series J: no shares issued and outstanding at September 30, 2015 and December 31, 2014; liquidation preference $0.0001 per share | |
| - | | |
| - | |
Common stock, $0.0001 par value, 200,000,000 shares authorized; 34,402,991 and 28,609,695 shares issued at September 30, 2015 and December 31, 2014, respectively; 34,402,763 and 28,609,467 shares outstanding at September 30, 2015 and December 31, 2014, respectively | |
| 3 | | |
| 3 | |
Additional paid-in-capital | |
| 138,214 | | |
| 137,655 | |
Treasury stock, at cost, 228 shares at September 30, 2015 and December 31, 2014, respectively | |
| (264 | ) | |
| (264 | ) |
Accumulated deficit | |
| (130,928 | ) | |
| (83,808 | ) |
Total stockholders' equity | |
| 7,025 | | |
| 53,586 | |
Total liabilities and stockholders' equity | |
$ | 14,891 | | |
$ | 61,158 | |
See accompanying notes
to condensed consolidated financial statements
SPHERIX INCORPORATED
AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(in thousands except shares and per share
amounts)
(Unaudited)
| |
Three Months Ended September 30, | | |
Nine Months Ended September 30, | |
| |
2015 | | |
2014 | | |
2015 | | |
2014 | |
Revenues | |
$ | - | | |
$ | 2 | | |
$ | 2 | | |
$ | 9 | |
| |
| | | |
| | | |
| | | |
| | |
Operating costs and expenses | |
| | | |
| | | |
| | | |
| | |
Amortization of patent portfolio | |
| 722 | | |
| 2,476 | | |
| 5,594 | | |
| 7,354 | |
Compensation and related expenses (including stock-based compensation) | |
| 336 | | |
| 1,799 | | |
| 1,001 | | |
| 12,532 | |
Professional fees | |
| 787 | | |
| 726 | | |
| 2,067 | | |
| 3,692 | |
Impairment of goodwill and intangible assets | |
| - | | |
| - | | |
| 37,212 | | |
| - | |
Rent | |
| 22 | | |
| 71 | | |
| 66 | | |
| 208 | |
Other selling, general and administrative | |
| 92 | | |
| 92 | | |
| 440 | | |
| 979 | |
Total operating expenses | |
| 1,959 | | |
| 5,164 | | |
| 46,380 | | |
| 24,765 | |
Loss from operations | |
| (1,959 | ) | |
| (5,162 | ) | |
| (46,378 | ) | |
| (24,756 | ) |
| |
| | | |
| | | |
| | | |
| | |
Other income (expenses) | |
| | | |
| | | |
| | | |
| | |
Other income, net | |
| 7 | | |
| 17 | | |
| 32 | | |
| 34 | |
Change in fair value of warrant liabilities | |
| (774 | ) | |
| 1 | | |
| (774 | ) | |
| 47 | |
Total other (expenses) income | |
| (767 | ) | |
| 18 | | |
| (742 | ) | |
| 81 | |
| |
| | | |
| | | |
| | | |
| | |
Net loss | |
$ | (2,726 | ) | |
$ | (5,144 | ) | |
$ | (47,120 | ) | |
$ | (24,675 | ) |
| |
| | | |
| | | |
| | | |
| | |
Net loss per share, basic and diluted | |
$ | (0.08 | ) | |
$ | (0.18 | ) | |
$ | (1.56 | ) | |
$ | (1.47 | ) |
| |
| | | |
| | | |
| | | |
| | |
Weighted average number of common shares outstanding, Basic and diluted | |
| 33,143,483 | | |
| 28,065,251 | | |
| 30,141,115 | | |
| 16,735,940 | |
See accompanying notes to condensed consolidated
financial statements
SPHERIX INCORPORATED AND SUBSIDIARIES
Condensed Consolidated Statements of Cash
Flows
(in thousands)
(Unaudited)
| |
Nine Months Ended September 30, | |
| |
2015 | | |
2014 | |
Cash flows from operating activities | |
| | | |
| | |
Net loss | |
$ | (47,120 | ) | |
$ | (24,675 | ) |
Adjustments to reconcile net loss to net cash used in operating activities: | |
| | | |
| | |
Amortization of patent portfolio | |
| 5,594 | | |
| 7,354 | |
Non-cash registration rights penalty | |
| - | | |
| 654 | |
Change in fair value of warrant liabilities | |
| 774 | | |
| (47 | ) |
Stock-based compensation | |
| 223 | | |
| 11,954 | |
Issuance of common stock - financial advisor | |
| - | | |
| 225 | |
Depreciation expenses | |
| 1 | | |
| - | |
Unrealized gain on marketable securities | |
| 45 | | |
| - | |
Impairment of goodwill and intangible assets | |
| 37,212 | | |
| - | |
Changes in assets and liabilities: | |
| | | |
| | |
Prepaid expenses and other assets | |
| 87 | | |
| 83 | |
Security deposits | |
| - | | |
| 4 | |
Accounts payable and accrued expenses | |
| (287 | ) | |
| (125 | ) |
Accrued salaries and benefits | |
| (114 | ) | |
| (194 | ) |
Accrued lease liabilities | |
| (129 | ) | |
| - | |
Net cash used in operating activities | |
| (3,714 | ) | |
| (4,767 | ) |
| |
| | | |
| | |
Cash flows from investing activities | |
| | | |
| | |
Purchase of marketable securities | |
| (3,774 | ) | |
| - | |
Purchase of property and equipment | |
| - | | |
| (4 | ) |
Sale of marketable securities | |
| 6,454 | | |
| - | |
Payment of accrued patent costs | |
| - | | |
| (1,000 | ) |
Net provided by (cash used) in investing activities | |
| 2,680 | | |
| (1,004 | ) |
| |
| | | |
| | |
Cash flows from financing activities | |
| | | |
| | |
Proceeds from issuance of common stock and warrants, net | |
| 1,321 | | |
| 3,874 | |
Proceeds from issuance of preferred stock, net | |
| - | | |
| 18,387 | |
Redemption of Series I redeemable convertible preferred stock | |
| (935 | ) | |
| (14,065 | ) |
Net cash provided by financing activities | |
| 386 | | |
| 8,196 | |
| |
| | | |
| | |
Net (decrease) increase in cash and cash equivalents | |
| (648 | ) | |
| 2,425 | |
Cash and cash equivalents, beginning of period | |
| 805 | | |
| 3,125 | |
| |
| | | |
| | |
Cash and cash equivalents, end of period | |
$ | 157 | | |
$ | 5,550 | |
| |
| | | |
| | |
Cash paid for interest and taxes | |
$ | - | | |
$ | - | |
| |
| | | |
| | |
Non-cash investing and financing activities | |
| | | |
| | |
Retirement of treasury stock | |
| - | | |
| 201 | |
Conversion of preferred stock to common stock | |
| - | | |
| 3 | |
See accompanying notes to condensed consolidated
financial statements
SPHERIX INCORPORATED AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
(UNAUDITED)
| Note 1. | Organization and Description of Business |
Spherix Incorporated (the “Company”)
is an intellectual property company incorporated in the State of Delaware that owns patented and unpatented intellectual property.
The Company was formed in 1967 as a scientific research company and for much of its history pursued drug development including
through Phase III clinical studies which were discontinued. Through the Company’s acquisition of patents and patent applications
developed by Nortel Networks Corporation from Rockstar Consortium US, LP (“Rockstar”) and Harris Corporation from North
South Holdings Inc. (“North South”) in 2013, the Company has expanded its activities and is a significant owner of
intellectual property assets.
The Company is a patent commercialization company
that realizes revenue from the monetization of IP. Such monetization includes, but is not limited to, acquiring IP from patent
holders in order to maximize the value of the patent holdings by conducting and managing a licensing campaign. The Company intends
to generate revenues and related cash flows from the granting of intellectual property rights for the use of patented technologies
that it owns, or that it manages for others, or through the settlement and litigation of patents.
The Company continually works to enhance the
portfolio of intellectual property through acquisition and strategic partnerships. The Company’s mission is to partner with
inventors, or other entities, who own undervalued intellectual property (“IP”). The Company then works with the inventors
or other entities to commercialize the IP. Currently, the Company owns over 330 patents and patent applications.
On March 24, 2015, the Company received a letter
(the “Notice”) from the Listing Qualifications Staff of The NASDAQ Stock Market LLC (“Nasdaq”) notifying
the Company that, based upon the closing bid price of the Company’s common stock (the “Common Stock”) for the
last 30 consecutive business days, the Common Stock no longer meets the requirement to maintain a minimum closing bid price of
$1.00 per share, as set forth in Nasdaq Listing Rule 5550(a)(2).
In accordance with Nasdaq’s Listing Rule
5810(c)(3)(A), the Company had a period of 180 calendar days, or until September 21, 2015, to regain compliance with the Rule.
After determining that it would not be in compliance with the Rule by September 21, 2015, the Company notified Nasdaq and applied
for an extension of the cure period, as permitted under the original notification. In accordance with Nasdaq Listing Rule 5810(c)(3)(A),
Nasdaq granted a second grace period of 180 calendar days, or until March 21, 2016, to regain compliance with the minimum closing
bid price requirement for continued listing. In order to regain compliance, the minimum closing bid price per share of the Company’s
Common Stock must be at least $1.00 for a minimum of ten consecutive business days. Continued listing during this period is also
contingent on the Company’s continued compliance with all listing requirements other than for the minimum bid price. If the
Company fails to regain compliance by March 21, 2016, the Company’s stock will be subject to delisting by Nasdaq.
On July 15, 2015, the Company entered into
a placement agency agreement (the “Placement Agency Agreement”) with Chardan Capital Markets, LLC (the “Placement
Agent”) relating to the Company’s registered direct offering, issuance and sale (the “Offering”) to select
institutional investors (the “Investors”) of 5,719,530 shares (the “Offered Shares”) of the Company’s
Common Stock, $0.0001 par value per share, and Common Stock Purchase Warrants (the “Warrants”) to purchase up to an
aggregate of 7,035,024 shares of Common Stock (the “Warrant Shares”). The net proceeds to the Company from the Offering,
after deducting Placement Agent fees and the Company’s estimated offering expenses, and excluding the proceeds, if any, from
the exercise of the Warrants, were approximately $1.3 million. The Offering closed on July 21, 2015 (see Note 6).
| Note 2. | Liquidity and Financial Condition |
The Company continues to incur ongoing administrative
and other expenses, including public company expenses, in excess of corresponding (non-financing related) revenue. While the Company
continues to implement its business strategy, it intends to finance its activities through:
| ● | managing current cash and cash equivalents on hand from
the Company’s past equity offerings, |
| ● | seeking additional funds raised through the sale of additional
securities in the future, |
| ● | seeking additional liquidity through credit facilities
or other debt arrangements, and |
| ● | increasing revenue from its patent portfolios, license
fees and new business ventures. |
Pursuant to the terms of Series I Redeemable
Convertible Preferred Stock (the “Series I Preferred Stock”), the Company redeemed 5,601 shares of its outstanding
Series I preferred stock on June 30, 2015 at an aggregate redemption price of $935,297, and is obligated to redeem the remaining
29,940 shares of its outstanding Series I preferred stock on December 31, 2015 at an aggregate redemption price of $5.0 million.
As a result of the Company’s recurring
operating losses, net operating cash flow deficits and remaining obligations relating to the redemption of its Series I Preferred
Stock, there is substantial doubt about the Company’s ability to continue as a going concern. The condensed consolidated
financial statements have been prepared assuming the Company will continue as a going concern and do not include any adjustments
to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of
liabilities that may result from the outcome of this uncertainty.
The Company’s ultimate success is dependent
on its ability to obtain additional financing and generate sufficient cash flow to meet its obligations on a timely basis. The
Company’s business will require significant amounts of capital to sustain operations and make the investments it needs to
execute its longer term business plan. The Company’s working capital deficiency amounted to $1.6 million at September
30, 2015, and net loss amounted to approximately $2.7 million and $47.1 million for the three and nine months ended September 30,
2015, primarily due to a $37.2 million non-cash impairment loss on goodwill and intangible assets in the second quarter of 2015
(see Note 4). The Company had a $130.9 million accumulated deficit as of September 30, 2015. The Company’s
existing liquidity is not sufficient to fund its operations, anticipated capital expenditures, working capital and other financing
requirements for the foreseeable future. Absent generation of sufficient revenue from the execution of the Company’s
business plan, the Company will need to obtain additional debt or equity financing, especially if the Company experiences downturns
in its business that are more severe or longer than anticipated, or if the Company experiences significant increases in expense
levels resulting from being a publicly-traded company or operations. If the Company attempts to obtain additional debt
or equity financing, the Company cannot assume that such financing will be available to the Company on favorable terms, or at all.
Disputes regarding the assertion of patents
and other intellectual property rights are highly complex and technical. The Company may be forced to litigate against others to
enforce or defend its intellectual property rights or to determine the validity and scope of other parties’ proprietary rights.
The defendants or other third parties involved in the lawsuits in which the Company is involved may allege defenses and/or file
counterclaims or initiate inter parties reviews in an effort to avoid or limit liability and damages for patent infringement or
cause the Company to incur additional costs as a strategy. If such efforts are successful, they may have an impact on the value
of the patents and preclude the Company from deriving revenue from the patents. The patents could be declared invalid by a court
or the United States Patent and Trademark Office, in whole or in part, or the costs of the Company can increase. Recent rulings
also create an increased risk that if the Company is unsuccessful in litigation it could be responsible to pay the attorneys’
fees and other costs of defendants by lowering the standard for legal fee shifting sought by defendants in patent cases.
As a result, a negative outcome of any such
litigation, or one or more claims contained within any such litigation, could materially and adversely impact the Company’s
business. Additionally, the Company anticipates that legal fees which are not included in contingency fee arrangements, experts
and other expenses will be material and could have an adverse effect on its financial condition and results of operations if its
efforts to monetize its patents are unsuccessful.
In addition, the costs of enforcing the Company’s
patent rights may exceed its recoveries from such enforcement activities. Accordingly, in order for the Company to generate a profit
from its patent enforcement and monetization activities, the revenues from such enforcement and monetization activities must be
high enough to offset both the cash outlays and the contingent fees payable from such revenues, including any profit sharing arrangements
with inventors or prior owners of the patents. The Company’s failure to monetize its patent assets or the occurrence of unforeseen
circumstances that could have a negative impact on the Company’s liquidity could significantly harm its business.
| Note 3. | Summary of Significant Accounting Policies |
Significant Accounting Policies
There have been no material changes in the
Company’s significant accounting policies other than described below to those previously disclosed in the 2014 Annual Report
on Form 10-K filed with the U.S. Securities and Exchange Commission on March 30, 2015.
Basis of Presentation and Principles of
Consolidation
The accompanying condensed consolidated financial
statements of the Company are unaudited and do not include all of the information and disclosures generally required for annual
financial statements. In the opinion of management, the statements contain all material adjustments (consisting of normal recurring
accruals) necessary to present fairly the Company’s condensed consolidated financial position as of September 30, 2015, and
the condensed consolidated results of its operations for the three and nine-month periods ended September 30, 2015 and 2014, and
the condensed consolidated results of its cash flows for the nine-month periods ended September 30, 2015 and 2014. This report
should be read in conjunction with the Company’s Annual Report on Form 10-K, which does contain the complete information
and disclosure for the year ended December 31, 2014.
The accompanying condensed consolidated financial
statements include the accounts of the Company and its wholly-owned subsidiaries, Biospherics Incorporated, Nuta Technology Corp.
(“Nuta”), Spherix Portfolio Acquisition I, Inc. (“SPXI”), Spherix Portfolio Acquisition II, Inc. (“SPXII”),
Guidance IP, LLC (“Guidance”), CompuFill LLC (“CompuFill”) , Directional IP, LLC (“Directional”)
and NNPT, LLC (“NNPT”). All significant intercompany balances and transactions have been eliminated in consolidation.
Reclassification
Certain reclassifications have been made to
prior year amounts to conform to the current year presentation.
Use of Estimates
The accompanying condensed consolidated
financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America
(“US GAAP”). This requires management to make estimates and assumptions that affect certain reported amounts of assets
and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements, and the reported
amounts of revenue and expenses during the period. The Company’s significant estimates and assumptions include the recoverability
and useful lives of long-lived assets, stock-based compensation, the valuation of derivative liabilities, and the valuation allowance
related to the Company’s deferred tax assets. Certain of the Company’s estimates, including the carrying amount of
the intangible assets, could be affected by external conditions, including those unique to the Company and general economic conditions.
It is reasonably possible that these external factors could have an effect on the Company’s estimates and could cause actual
results to differ from those estimates and assumptions.
Impairment of Intangible Assets
The Company monitors the carrying value of
long-lived assets for potential impairment and tests the recoverability of such assets whenever events or changes in circumstances
indicate that the carrying amounts may not be recoverable. If a change in circumstance occurs, the Company performs a test of recoverability
by comparing the carrying value of the asset or asset group to its undiscounted expected future cash flows. If cash flows cannot
be separately and independently identified for a single asset, the Company will determine whether impairment has occurred for the
group of assets for which the Company can identify the projected cash flows. If the carrying values are in excess of undiscounted
expected future cash flows, the Company measures any impairment by comparing the fair value of the asset or asset group to its
carrying value. The Company determined it was necessary to test its intangible assets for impairment during the second quarter
of 2015 (see Note 4). There were no indicators of impairment during the third quarter of 2015.
Goodwill
Goodwill is the excess of cost of an acquired
entity over the fair value of amounts assigned to assets acquired and liabilities assumed in a business combination. Goodwill is
subject to impairment testing at least annually and will be tested for impairment between annual tests if an event occurs or circumstances
change that indicate the carrying amount may be impaired. Accounting Standards Codification (“ASC”) Topic 350 provides
an entity with the option to first assess qualitative factors to determine whether the existence of events or circumstances leads
to a determination that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. If,
after assessing the totality of events or circumstances, an entity determines it is not more likely than not that the fair value
of a reporting unit is less than its carrying amount, then performing the two-step impairment test is unnecessary. If the two-step
impairment test is necessary, a fair-value-based test is applied at the reporting unit level, which is generally one level below
the operating segment level. The test compares the fair value of an entity's reporting units to the carrying value of those reporting
units. This test requires various judgments and estimates.
The Company estimated the fair value of the
reporting unit using a market approach in combination with a discounted operating cash flow approach. If the fair value of the
reporting unit exceeds its carrying value, then the second step of the impairment test (measurement) does not need to be performed.
If the fair value of the reporting unit is less than its carrying value, an indication of goodwill impairment exists for the reporting
unit and the entity must perform the second step of the impairment test. Under the second step, an impairment loss is recognized
for any excess of the carrying amount of the reporting unit’s goodwill over the implied fair value of that goodwill. The
implied fair value of goodwill is determined by allocating the fair value of the reporting unit in a manner similar to an acquisition
price allocation and the residual fair value after this allocation is the implied fair value of the reporting unit goodwill. A
significant amount of judgment is required in performing goodwill impairment tests including estimating the fair value of a reporting
unit and the implied fair value of goodwill. Refer to Note 4 for further discussion of the interim goodwill impairment test performed
by the Company as of June 30, 2015.
Warrant Liability
The Company accounts for the 7,035,024 common
stock warrants issued in connection with its July 21, 2015 offering of units consisting of common stock and warrants for the purchase
of common stock (the “July 2015 Financing”) in accordance with the guidance contained in ASC 815-40-15-7D, “Contracts
in Entity’s Own Equity”. Under that accounting standard, these warrants (the “July 2015 Warrants”) do not
meet the criteria for equity treatment and must be recorded as a liability. Accordingly, the Company classifies the July 2015 Warrants
as a liability at their fair value and adjusts the instruments to fair value at each reporting period. This liability is subject
to re-measurement at each balance sheet date until the July 2015 Warrants are exercised, and any change in fair value is recognized
in the Company’s statements of operations. The fair value of the July 2015 Warrants have been estimated using a binomial
valuation model (see Note 5).
Net Loss per Share
Basic loss per share is computed by dividing
the net income or loss applicable to common shares by the weighted average number of common shares outstanding during the period.
Diluted earnings per share is computed using the weighted average number of common shares and, if dilutive, potential common shares
outstanding during the period. Potential common shares consist of the incremental common shares issuable upon the exercise of stock
options (using the treasury stock method) and the conversion of the Company’s convertible preferred stock and warrants (using
the if-converted method). Diluted loss per share excludes the shares issuable upon the conversion of preferred stock and the exercise
of stock options and warrants from the calculation of net loss per share if their effect would be anti-dilutive.
Securities that could potentially dilute loss
per share in the future that were not included in the computation of diluted loss per share at September 30, 2015 and 2014 are
as follows:
| |
As of September 30, | |
| |
2015 | | |
2014 | |
Convertible preferred stock | |
| 5,044,821 | | |
| 5,156,841 | |
Warrants to purchase common stock | |
| 7,804,827 | | |
| 775,021 | |
Non-vested restricted stock awards | |
| - | | |
| 15,000 | |
Options to purchase common stock | |
| 5,498,701 | | |
| 5,298,877 | |
Total | |
| 18,348,349 | | |
| 11,245,739 | |
Subsequent Events
The Company has evaluated the period
after the balance sheet date but prior to the issuance of the financial statement, and determined that there were no subsequent events or transactions that required recognition or disclosure in the condensed
consolidated financial statements, except as disclosed.
Note 4. |
Goodwill and Intangible Assets |
Patent Portfolio
The Company’s intangible assets with
finite lives consist of its patents and patent rights. For all periods presented, all of the Company’s identifiable intangible
assets were subject to amortization. The gross carrying amounts related to acquired intangible assets as of September 30, 2015
are as follows (in thousands, except year amounts):
| |
September 30, 2015 | | |
Weighted average amortization period (years) | |
Patent Portfolios at December 31, 2014, net | |
$ | 55,004 | | |
| 5.62 | |
Amortization expenses | |
| 5,594 | | |
| | |
Impairment loss | |
| 35,500 | | |
| | |
Patent Portfolios at September 30, 2015, net | |
$ | 13,910 | | |
| 4.88 | |
The accumulated amortization related to acquired
intangible assets for the three and nine months ended September 30, 2015 and 2014 are as follows (in thousands, except year amounts):
| |
Amortization Expense for the Three Months Ended September 30, | | |
Amortization Expense for the Nine Months Ended September 30, | |
Date Acquired and Description | |
2015 | | |
2014 | | |
2015 | | |
2014 | |
7/24/13 - Rockstar patent portfolio | |
$ | 35 | | |
$ | 118 | | |
$ | 268 | | |
$ | 351 | |
9/10/13 - North South patent portfolio | |
| 10 | | |
| 33 | | |
| 74 | | |
| 97 | |
12/31/13 - Rockstar patent portfolio | |
| 677 | | |
| 2,325 | | |
| 5,252 | | |
| 6,906 | |
| |
$ | 722 | | |
$ | 2,476 | | |
$ | 5,594 | | |
$ | 7,354 | |
The Company incurred amortization expense associated
with its finite-lived intangible assets of $0.7 million and $2.5 million for the three months ended September 30, 2015 and 2014,
respectively. The Company incurred amortization expense associated with its finite-lived intangible assets of $5.6 million and
$7.4 million for the nine months ended September 30, 2015 and 2014, respectively.
The Company reviews its patent portfolio for
impairment as a single asset group whenever events or changes in circumstances indicate that the carrying value may not be recoverable.
During the second quarter of 2015, the Company determined that certain events occurred that were indicators of a potential impairment.
In accordance with ASC 360-10, the Company first estimated the future undiscounted cash flows anticipated to be generated by the
patent portfolio based on the Company’s current usage and future plans for the patent portfolio over its remaining weighted
average useful life. The analysis concluded that the carrying amount of the patent portfolio was not recoverable at June 30, 2015.
As a result, the Company performed an analysis to determine if the carrying value of the patent portfolio exceeded its fair value.
Considering that the patent portfolio is the Company’s most significant asset and is the foundation of all of its operations,
the Company determined that the most appropriate measurement of fair value of the asset group was the aggregate market value of
the Company’s common stock. As a result, the Company determined that the fair value of the patent portfolio at June 30, 2015
was approximately $14.6 million, which is comparable to the aggregate market capitalization of the Company as of that date. The
Company recorded a $35.5 million impairment charge against its patent portfolio in the second quarter of 2015. The new cost basis
of the patent portfolio of $14.6 million will be amortized over its weighted average remaining useful life of 5.13 years. There
were no indicators of impairment during the third quarter of 2015.
The future amortization of these intangible
assets was based on the adjusted carrying amount. Future amortization of all patents is as follows (in thousands):
| |
Rockstar | | |
North South | | |
Rockstar | | |
| |
| |
Portfolio | | |
Portfolio | | |
Portfolio | | |
| |
| |
Acquired | | |
Acquired | | |
Acquired | | |
Total | |
| |
24-Jul-13 | | |
10-Sep-13 | | |
31-Dec-13 | | |
Amortization | |
Three Months Ended December 31, 2015 | |
$ | 35 | | |
$ | 10 | | |
$ | 678 | | |
$ | 723 | |
Year Ended December 31, 2016 | |
| 139 | | |
| 39 | | |
| 2,696 | | |
| 2,874 | |
Year Ended December 31, 2017 | |
| 138 | | |
| 40 | | |
| 2,688 | | |
| 2,866 | |
Year Ended December 31, 2018 | |
| 138 | | |
| 40 | | |
| 2,689 | | |
| 2,867 | |
Year Ended December 31, 2019 | |
| 138 | | |
| 40 | | |
| 2,688 | | |
| 2,866 | |
Thereafter | |
| 285 | | |
| 88 | | |
| 1,341 | | |
| 1,714 | |
Total | |
$ | 873 | | |
$ | 257 | | |
$ | 12,780 | | |
$ | 13,910 | |
Goodwill
The Company’s market capitalization is
sensitive to the volatility of the Company’s stock price. During the six months ended June 30, 2015, the market price of
the Common Stock decreased from $1.13 to $0.48. The decline in stock price experienced by the Company was deemed a “triggering”
event requiring that goodwill be tested for impairment as of June 30, 2015.
The Company performed its interim goodwill
impairment test as of June 30, 2015. The Company performed the first step of the goodwill impairment test as of June 30, 2015 in
order to identify potential impairment by comparing the fair value of the reporting unit with its carrying amount, including goodwill.
The fair value of the reporting unit is based upon the Company’s market capitalization on the measurement date, June 30,
2015 and also on July 15, 2015 (date of the July 2015 Financing as discussed in Note 9). The Company believes that this is the
most appropriate valuation technique for determining the fair value of the reporting unit for various reasons. Most importantly,
the Company’s common shares are publicly traded on Nasdaq. Therefore, active quoted market prices can be readily observed
and the Company has a widely distributed shareholder base which provides for a substantial amount of daily trading volume. As such,
the Company believes that the quoted market price is a good representation of a fair value of one share of the Company, or a fractional
interest in the Company.
During the second quarter of 2015, the Company
determined that certain events occurred that were indicators of a potential impairment. Based upon the first step of the goodwill
impairment test performed as of June 30, 2015, the Company determined that the fair value of the reporting unit was less than its
carrying amount and therefore the second step of the goodwill impairment test was required.
In performing the second step of the goodwill
impairment test, the Company compared the carrying value of goodwill to its implied fair value. In estimating the implied fair
value of goodwill, the Company assigns the fair value of the reporting unit to all of the assets and liabilities associated with
the reporting unit as if the reporting unit had been acquired in a business combination. Based on the estimated implied fair value
of goodwill, the Company recorded an impairment charge of $1.7 million, to reduce the carrying value of goodwill to its implied
fair value, which was determined to be zero. This impairment charge is included in the impairment of goodwill and intangible assets
on the condensed consolidated statement of operations for nine months ended September 30, 2015.
| Note 5. | Fair Value of Financial Assets
and Liabilities |
Financial instruments, including cash and cash
equivalents, accounts and other receivables, accounts payable and accrued liabilities are carried at cost, which management believes
approximates fair value due to the short-term nature of these instruments. The Company measures the fair value of financial assets
and liabilities based on the exchange price that would be received for an asset or paid to transfer a liability (an exit price)
in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on
the measurement date. The Company maximizes the use of observable inputs and minimizes the use of unobservable inputs when measuring
fair value.
The Company uses three levels of inputs that
may be used to measure fair value:
Level 1 — quoted prices in
active markets for identical assets or liabilities
Level 2 — quoted prices for
similar assets and liabilities in active markets or inputs that are observable
Level 3 — inputs that are unobservable
(for example, cash flow modeling inputs based on assumptions)
The following table presents the Company’s assets and liabilities
that are measured at fair value at September 30, 2015 and December 31, 2014 (in thousands):
| |
Fair value measured at September 30, 2015 | |
| |
Total carrying value
at September 30, | | |
Quoted prices in active markets | | |
Significant other observable inputs | | |
Significant unobservable inputs | |
| |
2015 | | |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Assets | |
| | | |
| | | |
| | | |
| | |
Marketable securities - mutual funds | |
$ | 775 | | |
$ | 775 | | |
$ | - | | |
$ | - | |
| |
| | | |
| | | |
| | | |
| | |
Liabilities | |
| | | |
| | | |
| | | |
| | |
Fair value of warrant liabilities | |
$ | 1,759 | | |
$ | - | | |
$ | - | | |
$ | 1,759 | |
| |
| | | |
| | | |
| | | |
| | |
| |
Fair value measured at December 31, 2014 | |
| |
Total carrying value
at December 31, | | |
Quoted prices in active markets | | |
Significant other observable inputs | | |
Significant unobservable inputs | |
| |
2014 | | |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Assets | |
| | | |
| | | |
| | | |
| | |
Marketable securities - mutual funds | |
$ | 3,500 | | |
$ | 3,500 | | |
$ | - | | |
$ | - | |
There were no transfers between Level 1, 2
or 3 during the three and nine months ended September 30, 2015.
Level 3 Valuation Techniques
Level 3 financial liabilities consist of the
warrant liabilities for which there is no current market for these securities such that the determination of fair value requires
significant judgment or estimation. Changes in fair value measurements categorized within Level 3 of the fair value hierarchy are
analyzed each period based on changes in estimates or assumptions and recorded as appropriate.
A significant decrease in the volatility or
a significant decrease in the Company’s stock price, in isolation, would result in a significantly lower fair value measurement.
Changes in the values of the warrant liabilities are recorded in “fair value adjustments for warrant liabilities” in
the Company’s condensed consolidated statements of operations.
On July 21, 2015, the Company issued the
July 2015 Warrants to the investors in the July 2015 Financing to purchase aggregate of 7,035,024 shares of common stock. The July
2015 Warrants become exercisable on January 22, 2016 at an exercise price of $0.43 per share. The warrants require, at the option
of the holder, a net-cash settlement following certain fundamental transactions (as defined) at the Company and therefore are classified
as liabilities. The July 2015 Warrants have been recorded at their fair value using the binomial valuation model, and will be recorded
at their respective fair value at each subsequent balance sheet date. This model incorporates transaction details such as the Company’s
stock price, contractual terms, maturity, risk free rates, as well as volatility.
A summary of quantitative information with
respect to the valuation methodology and significant unobservable inputs used for the Company’s warrant liabilities that
are categorized within Level 3 of the fair value hierarchy at the date of issuance and as of September 30, 2015 is as follows:
Date of valuation | |
July 21, 2015 | | |
September 30,2015 |
Risk-free interest rate | |
| 1.69 | % | |
1.37% |
Expected volatility | |
| 100.00 | % | |
100.00% |
Expected life (in years) | |
| 5.5 | | |
5.3 |
Expected dividend yield | |
| - | | |
- |
The risk-free interest rate was based on
rates established by the Federal Reserve. The expected volatility in the binomial model is based on an expected volatility of 100%
which represents the percentage required to be used when valuing the cash settlement feature as contractually stated in the form of
warrant. The expected life of the warrants was determined by the expiration date of the warrants. The expected dividend yield
was based upon the fact that the Company has not historically paid dividends on its common stock, and does not expect to pay dividends
on its common stock in the future.
The following table sets forth a summary of
the changes in the fair value of the Company’s Level 3 financial liabilities that are measured at fair value on a recurring
basis as of September 30, 2015 (in thousands):
Beginning balance at January 1, 2015 | |
$ | - | |
Recognition of warrant liabilities | |
| 985 | |
Fair value adjustment of warrant liabilities | |
| 774 | |
Ending balance at September 30, 2015 | |
$ | 1,759 | |
| Note 6. | Stockholders’ Equity and Redeemable Convertible
Preferred Stock |
Offering of Common Stock and Warrants
On July 15, 2015, the Company entered into
a placement agency agreement with Chardan Capital Markets, LLC as placement agent (the “Placement Agent”), relating
to the July 2015 Financing, which was a registered direct offering to select institutional Investors of 5,719,530 shares of the
Company’s Common Stock, $0.0001 par value per share, and Common Stock Purchase Warrants to purchase up to an aggregate of
7,035,024 shares of Common Stock.
Pursuant to the Placement Agency Agreement,
the Company paid the Placement Agent a cash fee of 8.0% of the gross proceeds from the July 2015 Financing and $25,000 for its
expenses related to the offering. The Placement Agent had no commitment to purchase any of the shares of Common Stock or Warrants
and was acting only as an agent in obtaining indications of interest from investors who purchased the shares of Common Stock and
Warrants directly from the Company.
In addition, on July 15, 2015, the Company
and the Investors in the July 2015 Financing entered into a securities purchase agreement (the “Securities Purchase Agreement”)
relating to the issuance and sale of the Offered Shares and the Warrants. The Offered Shares and Warrants were sold in units, with
each unit consisting of one Offered Share and a Warrant to purchase 1.23 Warrant Shares. The purchase price per unit was $0.256.
The Warrants provide for an exercise price of $0.43 per share and become exercisable on January 22, 2016 and have a term of five
years thereafter. The exercise price of the Warrants will also be adjusted in the event of stock splits and reverse stock splits.
Except upon at least 61 days’ prior notice from the holder to the Company, the holder will not have the right to exercise
any portion of the Warrant if the holder, together with its affiliates, would beneficially own in excess of 4.99% of the number
of shares of the Company’s common stock (including securities convertible into common stock) outstanding immediately after
the exercise; provided, however, that the holder may not increase this limitation at any time in excess of 9.99%.
The Securities Purchase Agreement further provides
that, subject to certain exceptions, until the Warrants are no longer outstanding, the Company will not affect or enter into a
variable rate transaction. The Securities Purchase Agreement also provides the Investors an 18 month right of participation for
an amount up to 100% of such subsequent financing common stock (or common stock equivalents or a combination thereof), on the same
terms and conditions of such transaction. The use of proceeds from the Offering shall be for working capital and general corporate
purposes, and shall not be used for the satisfaction of the Company’s debt (other than ordinary course payables), for the
redemption of common stock or common stock equivalents, for the settlement of outstanding litigation or in violation of OFAC or
FCPA regulations.
The net proceeds to the Company from the Offering,
after deducting Placement Agent fees and the Company’s estimated offering expenses, and excluding the proceeds, if any, from
the exercise of the Warrants, were approximately $1.3 million. The Offering closed on July 21, 2015.
Preferred Stock
The Company had designated separate series
of its capital stock as of September 30, 2015 and December 31, 2014 as summarized below:
| |
Number of Shares Issued | | |
| | |
|
| |
and Outstanding as of | | |
| | |
|
| |
September 30, 2015 | | |
December 31, 2014 | | |
Par Value | | |
Conversion Ratio |
Series "A" | |
| - | | |
| - | | |
$ | 0.0001 | | |
N/A |
Series "C" | |
| 1 | | |
| 1 | | |
| 0.0001 | | |
1:1 |
Series “D" | |
| 4,725 | | |
| 4,725 | | |
| 0.0001 | | |
10:1 |
Series “D-1" | |
| 834 | | |
| 834 | | |
| 0.0001 | | |
10:1 |
Series “F-1" | |
| - | | |
| - | | |
| 0.0001 | | |
1:1 |
Series “H" | |
| 439,043 | | |
| 439,043 | | |
| 0.0001 | | |
10:1 |
Series “I” | |
| 29,940 | | |
| 35,541 | | |
| 0.0001 | | |
20:1 |
Series “J” | |
| - | | |
| - | | |
| 0.0001 | | |
1:1 |
Series I Redeemable Convertible Preferred
Stock
In connection with the agreement to acquire
Rockstar patents entered on December 31, 2013, the Company and Rockstar entered into a series of agreements which require the Company
to redeem $20 million of stated value of Series I Preferred Stock in $5 million increments on each of the 6, 12, 18 and 24 months
anniversary of the purchase. In the event that such payments are not timely made, Rockstar may employ certain remedies, including
the imposition of interest at a rate of 15% per annum from the closing date on unpaid and unconverted amounts due and after the
12 month anniversary can reduce the redemption obligations through sale or recovery of patents in the acquisition at a value equal
to unconverted amounts due which have been pledged as collateral for such obligations. Rockstar has filed a UCC-1 covering its
redemption obligations and the right to foreclose on the collateral. The redemption obligation is also required to be satisfied
in the event that the Company engages in certain capital raising transactions (among other instances, where such transactions result
in net proceeds to us in excess of $7.5 million) and from recoveries on other assets. The obligation to utilize capital from financings
and from other sources or the loss of patents to Rockstar upon a default could adversely impact our liquidity and financial position.
In January 2015, Rockstar transferred its
remaining outstanding Series I Preferred Stock, as well as its other stock in Spherix (including the Company’s Series H Convertible
Preferred Stock) to RPX Clearinghouse LLC (“RPX”), an affiliate of RPX Corporation.
During the quarter ended June 30, 2015, the
Company redeemed 5,601 shares of Series I Preferred Stock. In accordance with this redemption, the Company paid RPX $0.94 million.
As of September 30, 2015, 29,940 shares of
Series I Preferred Stock with an aggregate remaining redemption price of $5.0 million remained issued and outstanding.
In June 2015, the Company received a letter
from RPX alleging that the Company's disclosure relating to the substantial doubt regarding its ability to continue as a going
concern in its previously filed Forms 10-K and 10-Q constitutes a default under the Intellectual Property Security Agreement surrounding
the Series I Preferred Stock that was entered into with Rockstar in December 2013, which was transferred to RPX in January 2015
as part of the purchase of Rockstar’s assets by RPX. No communications or actions alleging any breach have followed since
the date of such initial communication from RPX. The Company strongly believes that there is no merit in the allegation, and no
legal basis for the claim.
Warrants
A summary of warrant activity for the nine
months ended September 30, 2015 is presented below:
| |
Warrants | | |
Weighted Average Exercise Price | | |
Total Intrinsic Value | | |
Weighted Average Remaining Contractual Life (in years) | |
Outstanding as of December 31, 2014 | |
| 769,803 | | |
$ | 13.70 | | |
$ | - | | |
| 4.03 | |
Issued | |
| 7,035,024 | | |
| 0.43 | | |
| - | | |
| 5.31 | |
Outstanding as of September 30, 2015 | |
| 7,804,827 | | |
$ | 1.74 | | |
$ | - | | |
| 5.11 | |
Exercisable as of September 30, 2015 | |
| 769,803 | | |
$ | 13.70 | | |
$ | - | | |
| 3.28 | |
Stock Options
On April 3, 2014, pursuant to and subject to
the available number of shares reserved under the Company’s 2014 Equity Incentive Plan, the Company issued 500,000 non-qualified
options with a term of five years and an exercise price of $2.86 to Anthony Hayes, director and the Chief Executive Officer of
the Company. 50% of the options vested immediately, and the remaining 50% vesting upon the Company’s receipt of gross proceeds
of at least $30 million by April 3, 2015 from an offering of its securities (the “Performance Condition”). Since
the Performance Condition was not satisfied by April 3, 2015, 250,000 options were forfeited. As a result, the Company
reversed $0.4 million of option expense related to this grant during the nine months ended September 30, 2015.
On May 24, 2015, 176 options granted on May
25, 2010 expired.
During the third quarter
ended September 30, 2015, pursuant to and subject to the available number of shares reserved under the 2014 Plan, the
Company issued 450,000 options to five of the Company’s directors. These stock options are vested within one year of
the date of grant. The aggregate grant date fair value of these options was approximately $69,000.
The fair value of stock options granted was
determined on the grant date using assumptions for risk free interest rate, the expected term, expected volatility, and expected
dividend yield. The fair value of the Company’s common stock was based upon the publicly quoted price on the date that the
final approval of the awards was obtained. The Company does not expect to pay dividends in the foreseeable future so therefore
the expected dividend yield is 0%. The expected term for stock options granted with service conditions represents the average period
the stock options are expected to remain outstanding and is based on the expected term calculated using the approach prescribed
by the Securities and Exchange Commission's Staff Accounting Bulletin No. 110 for “plain vanilla” options. The Company
obtained the risk-free interest rate from publicly available data published by the Federal Reserve. The volatility rate was computed
based on the standard deviation of the Company’s underlying stock price's daily logarithmic returns. The fair value of options
granted in 2015 and 2014 was estimated using the following assumptions:
|
|
For the Three Months Ended September 30, |
|
For the Nine Months Ended September 30, |
|
|
2015 |
|
2014 |
|
2015 |
|
2014 |
Exercise price |
|
$0.22 - $1.73 |
|
$1.34 - $1.79 |
|
$0.22 - $1.73 |
|
$1.34 - $5.83 |
Expected stock price volatility |
|
117.2% - 130.4% |
|
77.7% - 79.0% |
|
117.2% - 130.4% |
|
77.7% - 90.6% |
Risk-free rate of interest |
|
0.74% - 1.08% |
|
0.95% - 1.76% |
|
0.74% - 1.08% |
|
0.76% - 1.76% |
Term (years) |
|
1.9 - 3.0 |
|
2.5 - 5.3 |
|
1.9 - 3.0 |
|
2.5 - 5.5 |
A summary of option activity under the Company’s employee
stock option plan for the nine months ended September 30, 2015 is presented below:
| |
Number of Shares | | |
Weighted Average
Exercise Price | | |
Total Intrinsic Value | | |
Weighted Average Remaining Contractual Life (in years) | |
Outstanding as of December 31, 2014 | |
| 5,243,877 | | |
$ | 4.97 | | |
$ | - | | |
| 6.0 | |
Employee options granted | |
| 450,000 | | |
| 0.50 | | |
| - | | |
| 4.7 | |
Employee options forfeited | |
| (250,000 | ) | |
| - | | |
| - | | |
| - | |
Employee options expired | |
| (176 | ) | |
| - | | |
| - | | |
| - | |
Outstanding as of September 30, 2015 | |
| 5,443,701 | | |
| 4.69 | | |
$ | 34,500 | | |
| 5.3 | |
Options vested and expected to vest | |
| 5,443,701 | | |
| 4.69 | | |
| - | | |
| 5.3 | |
Options vested and exercisable | |
| 5,406,076 | | |
$ | 4.72 | | |
$ | - | | |
| 5.3 | |
A summary of option activity under the Company’s non-employee
stock option plan for the nine months ended September 30, 2015 is presented below:
| |
Number of Shares | | |
Weighted
Average Exercise
Price | | |
Total Intrinsic Value | | |
Weighted Average Remaining Contractual Life (in years) | |
Outstanding as of December 31, 2014 | |
| 55,000 | | |
$ | 5.16 | | |
$ | - | | |
| 6.4 | |
Non-employee options granted | |
| - | | |
| - | | |
| - | | |
| - | |
Outstanding as of September 30, 2015 | |
| 55,000 | | |
| 5.16 | | |
| - | | |
| 5.7 | |
Options vested and expected to vest | |
| 55,000 | | |
| 5.16 | | |
| - | | |
| 5.7 | |
Options vested and exercisable | |
| 55,000 | | |
$ | 5.16 | | |
$ | - | | |
| 5.7 | |
Stock-based compensation associated with the
amortization of stock option expense was approximately $0.1 million and $1.6 million for the three months ended September 30, 2015
and 2014, respectively, and was approximately $0.2 million and $12.0 million for the nine months ended September 30, 2015 and 2014,
respectively.
Estimated future stock-based
compensation expense relating to unvested stock options is approximately $5,000. The weighted average remaining vesting
period of options outstanding at September 30, 2015 is approximately 0.9 years.
Restricted Stock Awards
On January 5, 2015, the Company issued 2,500
shares of fully vested common shares to an employee.
On June 10, 2015, the Company entered into
a consulting agreement with a third party for three months of services. The Company has agreed to pay the consultant a monthly
fee of $10,000, payable in shares of Common Stock for each month of the term. On August 6, 2015, the Company issued 15,625 and
25,641 common shares based on the closing price of Common Stock on June 10, 2015 and July 10, 2015, respectively. On October 6,
2015, the Company issued 41,667 common shares based on the closing price of Common Stock on August 9, 2015
On June 15, 2015, the Company entered into
a consulting agreement with a third party. The Company has agreed to pay the consultant a monthly fee of $5,000 for three months
commencing on June 15, 2015, and granted 45,000 shares of restricted stock. The restricted stock awards vested monthly for each
of the three months following the grant date. On August 6, 2015, the Company issued 30,000 common shares and on October 6, 2015,
the Company issued the remaining 15,000 shares of Common Stock.
A summary of the restricted stock award activity
for the nine months ended September 30, 2015 is as follows:
| |
Number of Units | | |
Weighted Average Grant Day Fair Value | |
Nonvested at December 31, 2014 | |
| 7,500 | | |
$ | 2.63 | |
Granted | |
| 127,933 | | |
| 0.45 | |
Vested | |
| (135,433 | ) | |
| 0.56 | |
Nonvested at September 30, 2015 | |
| - | | |
$ | - | |
Stock-based Compensation
Stock-based compensation for the three months
and nine months ended September 30, 2015 and 2014 was comprised of the following (in thousands):
| |
For the Three Months Ended September 30, | | |
For the Nine Months Ended September 30, | |
| |
2015 | | |
2014 | | |
2015 | | |
2014 | |
Employee restricted stock awards | |
$ | - | | |
$ | 19 | | |
$ | 11 | | |
$ | 33 | |
Employee stock option awards | |
| 64 | | |
| 1,547 | | |
| 154 | | |
| 11,698 | |
Non-employee restricted stock awards | |
| 25 | | |
| 15 | | |
| 58 | | |
| 175 | |
Non-employee option awards | |
| - | | |
| - | | |
| - | | |
| 48 | |
Total compensation expense | |
$ | 89 | | |
$ | 1,581 | | |
$ | 223 | | |
$ | 11,954 | |
| Note 7. | Related Party Transactions |
Executive Officer Agreements
In February 2015, the members of the Compensation
Committee revised the annual bonus structure to be paid to the Company’s Chief Executive Officer, Mr. Anthony Hayes, and
established an incentive target bonus per the Employment Agreement (a “Target Bonus”). The amount of the Target Bonus
shall be (i) $350,000 in cash, which shall be payable in a single lump-sum payment promptly following the consummation of a qualifying
strategic transaction, and (ii) a discretionary bonus to be determined by the Compensation Committee, in its sole discretion, prior
to the earlier of a proxy solicitation in 2015 in relation to a qualifying strategic transaction or the consummation thereof. The
Target Bonus of $350,000 was included in accrued salaries and benefits in the first quarter of 2015 as management determined at
that time it was probable that a qualifying strategic transaction would occur. During the second quarter of 2015, the Company’s
management determined that it was no longer probable that a qualifying strategic transaction would occur and the accrual of the
$350,000 bonus was reversed.
On June 30, 2015, the Board of Directors (the
“Board”) of the Company accepted the resignation of Richard Cohen as Chief Financial Officer of the Company, effective
immediately. In connection therewith, the Company amended and restated its consulting agreement with Chord Advisors, LLC (“Chord”),
an advisory firm that provides the Company with certain accounting services, such that it will continue to provide the Company
with certain financial accounting and advisory services, with the monthly fee to Chord reduced from $20,000 to $10,000 per month
since its affiliate will no longer serve as the Company’s Chief Financial Officer.
In connection with the resignation of Mr.
Cohen, on June 30, 2015, the Board appointed Frank Reiner, the Interim Chief Financial Officer of the Company, effective immediately.
Pursuant to Mr. Reiner’s employment agreement with the Company, dated as of March 14, 2014, as amended (the “Agreement”),
the term of Mr. Reiner’s employment is one year and automatically extends for additional one-year terms unless no less than
60 days’ prior written notice of non-renewal is given by Mr. Reiner or the Company. Mr. Reiner’s base salary under
the Agreement was $235,000 per year, but in connection with being named Interim Chief Financial Officer, the Board authorized an
amendment to the Agreement to increase Mr. Reiner’s base salary to $271,000. Mr. Reiner is also entitled to receive an annual
bonus if the Compensation Committee of the Board determines that performance targets have been met. The amount of the annual bonus
is determined based on the Company’s gross proceeds from certain monetization of the Company’s intellectual property.
Mr. Reiner is also eligible to participate in all employee benefits plans from time to time in effect for the Company’s other
senior executive officers.
On August 10, 2015, the Company entered
into a consulting agreement with Mr. Howard E. Goldberg (d/b/a Forward Vision Associates, of which Mr. Goldberg is the sole proprietor
and owner), on an independent contractor basis, pursuant to which Mr. Goldberg will, among other services, provide advisory services
to the Company in areas including licensing, litigation and business strategies. The Company will pay Mr. Goldberg an agreed upon
quarterly retainer amount of $20,400 (calculated on an hourly basis) and, if applicable, upon exhaustion of each quarterly retainer,
at an hourly rate to be paid in equity (for the first 50 hours above the quarterly retainer), and subsequently (if applicable)
at an hourly rate thereafter in cash. The Company will reimburse Mr. Goldberg for actual out-of-pocket expenses. The consulting
agreement with Mr. Goldberg has an initial term of one year, unless consultant has completed the desired services by an earlier
date or unless the agreement is earlier terminated pursuant to its terms. The consulting agreement with Mr. Goldberg may be extended
by written agreement of both the Company and consultant. During the three-month period ended September 30, 2015, the Company incurred
$20,400 consulting expenses related to this agreement. Mr. Goldberg was also appointed as a director of the Company.
| Note 8. | Commitments and Contingencies |
Legal Proceedings
In the ordinary course of business, the Company
actively pursues legal remedies to enforce its intellectual property rights and to stop unauthorized use of our technology. From
time to time, the Company may be involved in various claims and counterclaims and legal actions arising in the ordinary course
of business. There were no pending material claims or legal matters as of the date of this report other than the following
matters:
Guidance IP LLC v. T-Mobile Inc., Case No.
2:14-cv-01066-RSM, in the United States District Court for the Western District of Washington
On August 1, 2013, the Company’s wholly
owned subsidiary Guidance initiated litigation against T-Mobile Inc. (“T-Mobile”) in Guidance IP LLC v. T-Mobile
Inc., Case No. 6:13-cv-01168-CEH-GJK, in the United States District Court for the Middle District of Florida for infringement
of U.S. Patent No. 5,719,584 (the “Asserted Patent”). The complaint alleges that T-Mobile has manufactured, sold, offered
for sale and/or imported technology that infringes the Asserted Patent. The Company sought relief in the form of a finding of infringement
of the Asserted Patent, an accounting of all damages sustained by the Company as a result of T-Mobile’s infringement, actual
damages, enhanced damages under 35 U.S.C. Section 284, attorney’s fees and costs. On April 24, 2014, the United States District
Court for the Middle District of Florida transferred the case to the United States District Court for the Western District of Washington
(“the Court”). On July 14, 2014, the Court assigned the case a new case number, 2:14-cv-01066-RSM. On January 29, 2015,
the Court issued an Order requiring the parties to serve Initial Disclosures by February 26, 2015 and submit a Joint Status Report
and Discovery Plan to the Court by March 12, 2015, which were timely served and filed. At present, the dispute between the parties
has been resolved. On April 30, 2015, the parties filed a dismissal without prejudice of all claims, defenses and counterclaims,
with all attorneys’ fees, costs of court and expenses to be borne by each party incurring the same.
Spherix Incorporated v. VTech Telecommunications
Ltd. et al., Case No. 3:13-cv-03494-M, in the United States District Court for the Northern District of Texas
On August 30, 2013, the Company initiated
litigation against VTech Telecommunications Ltd. and VTech Communications, Inc. (collectively “VTech”) in Spherix
Incorporated v. VTech Telecommunications Ltd. et al., Case No. 3:13-cv-03494-M, in the United States District Court for the
Northern District of Texas (“the Court”) for infringement of U.S. Patent Nos. 5,581,599; 5,752,195; 5,892,814; 6,614,899;
and 6,965,614 (collectively, the “Asserted Patents”). The complaint alleges that VTech has manufactured, sold, offered
for sale and/or imported technology that infringes the Asserted Patents. The Company is seeking relief in the form of a finding
of infringement of the Asserted Patents, an accounting of all damages sustained by the Company as a result of VTech’s infringement,
actual damages, enhanced damages under 35 U.S.C. Section 284, attorney’s fees and costs. On November 11, 2013, VTech filed
its Answer with counterclaims requesting a declaration that the Asserted Patents are non-infringed and invalid. On December 5,
2013, the Company filed its Answer to the counterclaims, in which the Company denied that the Asserted Patents were non-infringed
and invalid. On May 22, 2014, the Court entered a Scheduling Order for the case setting trial to begin on January 11, 2016. On
June 3, 2014, in an effort to narrow the case, the parties filed a stipulation dismissing without prejudice all claims and counterclaims
related to U.S. Patent No. 5,752,195. On September 4, 2014, VTech Communications, Inc., together with Uniden America Corporation,
filed a request for inter partes review (“IPR”) of two of the Asserted Patents in the United States Patent and
Trademark Office. On March 3, 2015, the Patent Trial and Appeal Board (“Board”) entered decisions instituting, on limited
grounds, IPR proceedings regarding a portion of the claims for the two Spherix patents. The Board also suggested an accelerated
IPR schedule to culminate in an oral hearing on or about September 28, 2015. The Board held a conference call with the parties
on March 17, 2015 to finalize the IPR schedule. On October 27, 2014, the Court held a Technology Tutorial Hearing for the educational
benefit of the Court. The Markman hearing was held on November 21 and 26, 2014. Both the Technology Tutorial and the
Markman hearing were held jointly with the Spherix Incorporated v.Uniden Corporation et al. case (see below). On March
19, 2015, the Court issued its Markman order, construing a total of 13 claim terms that had been disputed by the parties.
On April 2, 2015, the Company filed an Amended Complaint with Jury Demand and the parties filed a Settlement Conference Report
informing the Court that the parties have not yet resumed settlement negotiations. The Court has ordered the parties to hold a
settlement conference not later than December 28, 2015. On April 15, 2015, the Company filed a Motion to Compel Production of Technical
Documents against Defendants. On April 20, 2015, the Company filed an Opposed Motion for Leave to Serve Supplemental Infringement
Contentions. Also on April 20, 2015, Defendants filed their Amended Answer to the Company’s Amended Complaint with their
counterclaims. On May 1, 2015, the Company filed its Answer to the counterclaims. On May 5, 2015, the parties filed a Joint Stipulation
and Motion to Modify the Scheduling Order. On May 6, 2015, the Court entered the Stipulation, in which the Court estimated the
trial date to occur in July of 2016 and ordered the parties to be ready for trial on or after June 22, 2016. The Company’s
patent owner’s response to the petition in the IPR was timely filed on May 26, 2015. On September 28, 2015, the hearing in
the IPR proceedings was held before the Board. On October 9, 2015, the parties filed a Joint Motion to Stay the litigation pending
the issuance of the Board’s final written decisions in the IPR proceedings. On October 13, 2015, the Court granted the stay
and administratively closed the case until the Board issues its final written decisions.
Spherix Incorporated v. Uniden Corporation
et al., Case No. 3:13-cv-03496-M, in the United States District Court for the Northern District of Texas
On August 30, 2013, the Company initiated litigation
against Uniden Corporation and Uniden America Corporation (collectively “Uniden”) in Spherix Incorporated v. Uniden
Corporation et al. , Case No. 3:13-cv-03496-M, in the United States District Court for the Northern District of Texas (“the
Court”) for infringement of U.S. Patent Nos. 5,581,599; 5,752,195; 6,614,899; and 6,965,614 (collectively, the “Asserted
Patents”). The complaint alleges that Uniden has manufactured, sold, offered for sale and/or imported technology that infringes
the Asserted Patents. The Company is seeking relief in the form of a finding of infringement of the Asserted Patents, an accounting
of all damages sustained by the Company as a result of Uniden’s infringement, actual damages, enhanced damages under 35 U.S.C.
Section 284, attorney’s fees and costs. On April 15, 2014, Uniden filed its Answer with counterclaims requesting a declaration
that the patents at issue are non-infringed and invalid. On April 28, 2014, the Company filed its Answer to the counterclaims,
in which the Company denied that the patents at issue were non-infringed and invalid. On May 22, 2014, the Court entered a scheduling
order for the case setting trial to begin on February 10, 2016. On June 3, 2014, in an effort to narrow the case, the parties filed
a stipulation dismissing without prejudice all claims and counterclaims related to U.S. Patent No. 5,752,195. On September 4, 2014,
Uniden America Corporation, together with VTech Communications, Inc., filed a request for inter partes review (“IPR”)
of two of the Asserted Patents in the United States Patent and Trademark Office. On March 3, 2015, the Patent Trial and Appeal
Board (“Board”) entered decisions instituting, on limited grounds, IPR proceedings regarding a portion of the claims
for the two Spherix patents. The Board also suggested an accelerated IPR schedule to culminate in an oral hearing on September
28, 2015. The Board held a conference call with the parties on March 17, 2015 to finalize the IPR schedule. On October 27, 2014,
the Court held a Technology Tutorial Hearing for the educational benefit of the Court. The Markman hearing was held on November
21 and 26, 2014, with both hearings occurring jointly with the Spherix Incorporated v. VTech Telecommunications Ltd. et al.
case (see above). On March 19, 2015, the Court issued its Markman order, construing a total of 13 claim terms that had been
disputed by the parties. On April 2, 2015, the Company filed its Amended Complaint with Jury Demand and the parties filed a Settlement
Conference Report informing the Court that the parties have not yet resumed settlement negotiations. The Court has ordered the
parties to hold a settlement conference not later than January 20, 2016. On April 9, 2015, the parties filed a Joint Motion to
Modify Patent Scheduling Order. On April 10, 2015, the Court granted the Motion. On April 20, 2015, Defendants filed their Amended
Answer to the Company’s Amended Complaint with their counterclaims. On May 1, 2015, the Company filed its Answer to the counterclaims.
The Company’s patent owner’s response to the petition in the IPR was timely filed on May 26, 2015. On July 9, 2015,
the Court issued a modified Scheduling Order setting the Final Pretrial Conference for February 2, 2016 and confirming the Trial
Date beginning February 20, 2016. On September 9, 2015, the parties jointly filed a motion to stay the case pending the decision
in the two IPR proceedings. On September 10, 2015, the Court stayed the case and ordered the parties to file a status report within
10 days of the Patent Office issuing its decision in the IPR proceedings. On October 13, 2015, the Court ordered the case administratively
closed until the Board issues its final written decisions.
Spherix Incorporated v. Cisco Systems Inc.,
Case No. 1:14-cv-00393-SLR, in the United States District Court for the District of Delaware
On March 28, 2014, the Company initiated litigation
against Cisco Systems Inc. (“Cisco”) in Spherix Incorporated v. Cisco Systems Inc., Case No. 1:14-cv-00393- SLR, in
the United States District Court for the District of Delaware for infringement of U.S. Patent Nos. RE40467; 6,697,325; 6,578,086;
6,222,848; 6,130,877; 5,970,125; 6,807,174; 7,397,763; 7,664,123; 7,385,998; and 8,607,323 (collectively, the “Asserted Patents”).
The complaint alleges that Cisco has manufactured, sold, offered for sale and/or imported technology that infringes the Asserted
Patents. The Company is seeking relief in the form of a finding of infringement of the Asserted Patents, an accounting of all damages
sustained by the Company as a result of Cisco’s infringement, actual damages, enhanced damages under 35 U.S.C. Section 284,
attorney’s fees and costs. On July 8, 2014, the Company filed its amended complaint to reflect that certain of the patents
asserted were assigned to its wholly-owned subsidiary NNPT LLC (“NNPT”), based in Longview, Texas. By the amended complaint,
NNPT was added as a co-plaintiff with the Company. On August 5, 2014, Cisco filed a motion to dismiss certain claims alleged in
the amended complaint. On August 26, 2014, the Company and NNPT filed an opposition to Cisco’s motion to dismiss. On September
5, 2014, Cisco filed its reply brief regarding its motion to dismiss. On March 9, 2015, Cisco moved to consolidate certain claims
relating to alleged obligations by the Company to license Cisco on two unrelated patents, which Cisco had made against the Company
on June 6, 2014 in the pending case Bockstar Technologies LLC v. Cisco Systems, Inc., Case No. 1:13-cv-02020- SLR-SRF (see
below). On March 23, 2015, the Company filed its opposition to Cisco’s motion to consolidate. On March 31, 2015, the Court
granted Cisco’s motion to dismiss allegations of “willful” infringement. Spherix’s allegations of patent
infringement for the eleven (11) patents continue. Spherix has the ability to re-allege “willful” infringement at a
later time. On April 3, 2015, Cisco Systems, Inc. petitioned the U.S. Patent Office for an inter partes review (“IPR”)
of Spherix patents 7,397,763 and 8,607,323. The remaining nine patents Spherix has asserted against Cisco were not part of the
petitions and the time for Cisco to petition the USPTO for an IPR on those remaining patents expired on April 6, 2015. On April
10, 2015, Cisco withdrew its March 9, 2015 motion to consolidate claims from the Bockstar case. On May 5, 2015, Cisco filed
its Answer to the Company’s amended complaint with counterclaims under the Sherman Act, breach of contract, breach of covenant
of good faith and fair dealing implied in contract, promissory estoppel, and requesting a declaration that the patents at issue
are non-infringed and invalid. On June 10, 2015, the Court entered a Scheduling Order for the case. The Court set the Markman
hearing to occur in two phases, for two different sets of patents, to occur on June 24, 2016 and September 8, 2016. The Court
set trial to begin on January 16, 2018. On July 13, 2015, the Company filed its oppositions to Cisco’s IPR petitions. On
July 20, 2015, the Company filed a motion to dismiss or transfer certain of Cisco’s counterclaims. On September 22, 2015,
the Patent Trial and Appeal Board issued orders instituting the two IPR proceedings, Nos. IPR2015-00999 and IPR2015-01001, as requested
by Cisco.
Spherix Incorporated v. Juniper Networks,
Inc., Case No. 1:14-cv-00578-SLR, in the United States District Court for the District of Delaware
On May 2, 2014, the Company initiated litigation
against Juniper Networks, Inc. (“Juniper”) in Spherix Incorporated v. Juniper Networks, Inc., Case No. 1:14-cv-
00578-SLR, in the United States District Court for the District of Delaware for infringement of U.S. Patent Nos. RE40467; 6,578,086;
6,130,877; 7,385,998; 7,664,123; and 8,607,323 (collectively, the “Asserted Patents”). The complaint alleges that Juniper
has manufactured, sold, offered for sale and/or imported technology that infringes the Asserted Patents. The Company is seeking
relief in the form of a finding of infringement of the Asserted Patents, an accounting of all damages sustained by the Company
as a result of Juniper’s infringement, actual damages, enhanced damages under 35 U.S.C. Section 284, attorney’s fees
and costs. On July 8, 2014, the Company filed its amended complaint to reflect that certain of the patents asserted were assigned
to the Company’s wholly-owned subsidiary NNPT LLC, based in Longview, Texas. By the amended complaint, NNPT LLC was added
as a co-plaintiff with the Company. On August 8, 2014, Juniper filed a motion to dismiss certain claims alleged in the amended
complaint. On August 29, 2014, the Company filed its opposition to Juniper’s motion to dismiss. On September 15, 2014, Juniper
filed its reply brief regarding its motion to dismiss. On March 31, 2015, the Court granted Juniper’s motion to dismiss allegations
of “willful” infringement. Spherix’s allegations of patent infringement for the eleven (11) patents continue.
Spherix has the ability to reallege “willful” infringement at a later time. On April 14, 2015, Juniper filed its Answer
to the Company’s amended complaint. On May 6, 2015, the Court held an in-person Scheduling Conference in court and ordered
the parties to submit the final proposed Scheduling Order to the Court. On May 28, 2015, the Court entered a Scheduling Order for
the case setting the Markman hearing for June 24, 2016 and trial to begin on May 15, 2017.
NNPT, LLC v. Huawei Investment & Holding
Co., Ltd. et al., Case No. 2:14-cv-00677-JRG-RSP, in the United States District Court for the Eastern District of Texas
On June 9, 2014, NNPT initiated
litigation against Futurewei Technologies, Inc., Huawei Device (Hong Kong) Co., Ltd., Huawei Device USA Inc., Huawei
Investment & Holding Co., Ltd., Huawei Technologies Co., Ltd., Huawei Technologies Cooperatif U.A., and Huawei
Technologies USA Inc. (collectively “Huawei”), in NNPT, LLC v. Huawei Investment & Holding Co., Ltd. et
al. , Case No. 2:14-cv-00677-JRG-RSP, in the United States District Court for the Eastern District of Texas (“the
Court”), for infringement of U.S. Patent Nos. 6,578,086; 6,130,877; 6,697,325; 7,664,123; and 8,607,323 (collectively,
the “Asserted Patents”). On September 8, 2014, Huawei filed its answers to the complaint in which defendant
Huawei Technologies USA asserted counterclaims requesting a declaration that the patents at issue were non-infringed and
invalid. On October 8, 2014, NNPT filed its Answer to the counterclaims, in which it denied that the Asserted Patents were
non-infringed and invalid. On January 20, 2015, the Court held a Scheduling Conference and set the Markman hearing for
July 17, 2015 and trial to begin on February 8, 2016. On January 28, 2015, the Court appointed as mediator for the parties,
Hon. David Folsom, former Chief Judge of the United States District Court for the Eastern District of Texas. On February 24,
2015, the Court issued its Docket Control Order setting the Markman hearing for July 17, 2015 and trial to begin on
February 8, 2016. The Court also set an August 14, 2015 deadline to complete mediation. On June 11, 2015, Huawei filed a
request for inter partes review (“IPR”) of two of the Asserted Patents in the United States Patent and
Trademark Office. On July 7, 2015, the Court reset the Markman hearing date for August 5, 2015. The Markman
hearing was held on August 5, 2015 as scheduled. The parties held an initial mediation on August 6, 2015. On August 17, 2015,
the Court issued its Markman Order. On August 20, 2015, the mediator filed a report with the Court reporting that the
parties reached a settlement of the case on August 14, 2015. On August 31, 2015, the parties filed a Joint Motion to Stay and
Notice of Settlement. On September 9, 2015, the Court stayed the case and set a status conference for October 2, 2015. On
September 18, 2015, the parties filed in the Patent Trial and Appeals Board (“Board”) a joint motion to terminate
the two IPR petitions file by Huawei, Nos. IPR2015-01382 and IPR2015-01390. On September 24, 2015, the Board issued orders
terminating the two IPR proceedings. At the October 2, 2015 status conference, Huawei’s counsel failed to appear. On
October 2, 2015, the Court issued an order stating that “the parties shall appear for a hearing before the Court
October 16, 2015 at 8:30 a.m., unless an Order of Dismissal has been entered before then” and that “Defendants
shall pay Plaintiff’s reasonable expenses, including attorney’s fees, incurred for travel to and attendance at
the October 2, 2015 hearing.” On October 13, 2015, the Company received Huawei’s fully executed copy of a
confidential settlement and license agreement (the “Agreement”). The Agreement provides Huawei with a fully paid-up,
non-exclusive, irrevocable, worldwide license (without the right to sub-license) to make, sell and otherwise dispose of
certain specifically listed licensed products under eleven (11) of the Company’s patents (the “License”).
Hence, the License is not a license to the Company’s entire portfolio. The Company agreed that it will not bring suit
or otherwise assert a claim with respect to the licensed products. In exchange for a one-time cash payment to the Company in
the amount of $295,000, the Company will have granted the License and an irrevocable release in law and equity of all claims
and liabilities involved in the Litigation. Within five (5) business days of the confirmed payment of this amount by Huawei
to the Company under the terms of the Agreement, the parties thereto shall cause a stipulation of dismissal of all claims and
counterclaims to be filed with the Court.
Spherix Incorporated v. Verizon Services
Corp. et al., Case No. 1:14-cv-00721-GBL-TCB, in the United States District Court for the Eastern District of Virginia
On June 11, 2014, the Company initiated litigation
against Verizon Services Corp.; Verizon South Inc.; Verizon Virginia LLC; Verizon Communications Inc.; Verizon Federal Inc.; Verizon
Business Network Services Inc.; and MCI Communications Services, Inc. (collectively, “Verizon”) in Spherix Incorporated
v. Verizon Services Corp. et al. , Case No. 1:14-cv-00721-GBL-TCB, in the United States District Court for the Eastern District
of Virginia (“the Court”) for infringement of U.S. Patent Nos. 6,507,648; 6,882,800; 6,980,564; and 8,166,533. On July
2, 2014, the Company filed its Amended Complaint in the case in which the Company added allegations of infringement of U.S. Patent
No. 7,478,167. On August 15, 2014, Verizon filed a motion to dismiss, or in the alternative, a motion for a more definite statement.
On September 9, 2014, the Court issued a Scheduling Order adopting the parties’ Joint Proposed Discovery Plan. According
to the Scheduling Order, the Markman hearing is currently scheduled for March 16, 2015. On September 12, 2014, the Company
filed its opposition to Verizon’s motion to dismiss, and on September 26, 2014, Verizon filed its reply brief. On October
3, 2014, the Court held a hearing on the motion to dismiss and issued a Minute Entry stating that motion was denied. The Court
stated that an Order would follow. On October 17, 2014, Verizon filed its Answer to the Company’s Amended Complaint. The
parties agreed to narrow the case by dismissing without prejudice the claims under U.S. Patent Nos. 6,507,648 and 6,882,800, with
each party to bear its own costs and attorneys’ fees as to the dismissed claims. The parties filed a joint motion to that
effect on October 27, 2014, which was granted on October 30, 2014. The parties further agreed to narrow the case by dismissing
without prejudice the claims under U.S. Patent Nos. 8,166,533 and 7,478,167, and filed a joint motion to that effect on November
6, 2014. On November 13, 2014, the Court granted the parties’ Joint Motion to Dismiss the ‘533 Patent and the ‘167
Patent without prejudice, with each party to bear its own costs and attorneys’ fees as to the dismissed claims. On December
18, 2014, the Court set the case for a five day trial beginning on May 18, 2015. On January 9, 2015, the Company and Verizon each
filed their motions for summary adjudication and entry of proposed claim constructions. On January 12, 2015, the Court set the
motions for summary adjudication for hearing on March 16, 2015 along with the Markman hearing. On January 22, 2015, the
parties filed their oppositions to the motions for summary adjudication and entry of proposed claim constructions, and on February
5, 2015, the parties filed their reply briefs. On March 16, 2015, the Court held the Markman hearing as scheduled. On March
25, 2015, the Court reset the May 18, 2015 jury trial date to August 10, 2015. On March 25, 2015, the Court clarified that the
trial will be held on August 10, 11, 12, 13 and 17 of 2015. On, June 11, 2015, Verizon filed a request for inter partes
review (“IPR”) of the Asserted Patent in the United States Patent and Trademark Office. On July 1, 2015, the Court
granted Verizon’s motion for summary judgment as to indefiniteness and non-infringement. On July 30, 2015, the Company filed
a Notice of Appeal of the Court’s judgment in the United States Court of Appeals for the Federal Circuit. On August 31, 2015,
a settlement agreement between Spherix and Verizon was entered into, resolving all outstanding litigation between the two companies.
On September 4, 2015, the Company filed an unopposed motion to withdraw its Notice of Appeal. On September 8, 2015, the Court granted
the motion to withdraw the Notice of Appeal. On September 10, 2015, the parties filed a joint motion to terminated the IPR proceeding.
On September 14, 2015, the Patent Trial and Appeal Board terminated Verizon’s petition.
Spherix Incorporated v. Verizon Services
Corp. et al., Case No. 1:15-cv-0576-GBL-IDD, in the United States District Court for the Eastern District of Virginia
On May 1, 2015, the Company initiated litigation
against Verizon Services Corp.; Verizon South Inc.; Verizon Virginia LLC; Verizon Communications Inc.; Verizon Federal Inc.; Verizon
Business Network Services Inc.; MCI Communications Services, Inc.; Cellco Partnership d/b/a Verizon Wireless; and Cisco Systems,
Inc. (collectively, “Defendants”) in Spherix Incorporated v. Verizon Services Corp. et al , Case No. 1:15-cv-0576-GBL-IDD,
in the United States District Court for the Eastern District of Virginia for infringement of U.S. Patent Nos. 5,959,990; 6,111,876;
RE40,999; RE44,775; RE45,065; RE45,081; RE45,095; and RE45,121 (collectively, the “Asserted Patents”). The complaint
alleges that Defendants has used, manufactured, sold, offered for sale and/or imported technology that infringes the Asserted Patents.
The Company is seeking relief in the form of a finding of infringement of the Asserted Patents, damages sufficient to compensate
the Company for Defendants’ infringement, together with pre-and post-judgment interest and costs, and the Company’s
attorney’s fees. On June 30, 2015, the Company filed its Amended Complaint to add allegations of infringement of U.S. Patent
Nos. RE45,521 and RE45,598. On July 15, 2015, Cisco filed a motion to transfer the case to the District of Delaware. On July 17,
2015, Verizon filed its Answer and Counterclaims to the Complaint. On July 17, 2015, the Court issued a Scheduling Order setting
the Final Pretrial Conference for November 19, 2015, with trial to be set within 4-8 weeks of the pretrial conference. On July
31, 2015, the Company filed its Opposition to Cisco’s motion to transfer. On August 5, 2015, the Court held an Initial Pretrial
Conference in the case to discuss the discovery plan for the case. On August 6, 2015, the Company filed its answer to Verizon's
counterclaims. On August 11, 2015, the Court issued its Scheduling Order regarding the discovery schedule, setting discovery to
be concluded by November 15, 2015. On August 31, 2015, a settlement agreement between Spherix and Verizon was entered into, resolving
all outstanding litigation between the two companies. Cisco was not a party to the agreement and the case continues against Cisco.
On September 1, 2015, the Company and Verizon filed a joint motion to dismiss the Verizon entities from the case. On September
2, 2015, the Court granted the motion to dismiss Verizon. On September 23, 2015, Cisco filed a Consent Motion to transfer the action
to the District of Delaware, and on September 25, 2015, the Court granted the motion. The case has been transferred to the District
of Delaware and assigned new case number 1:15-cv-00869-SLR.
Cisco Systems, Inc. v. Spherix Incorporated,
1:15-cv-00559-SLR, in the United States District Court for the District of Delaware
On June 30, 2015, Cisco Systems, Inc. initiated
litigation against the Company in United States District Court for the District of Delaware, requesting a declaration of non-infringement
U.S. Patent No. RE45,598, which issued on June 30, 2015, and, with respect to that patent, alleging breach of contract, breach
of covenant of good faith and fair dealing implied in contract and promissory estoppel. On August 28, 2015, the Company filed motions
to dismiss the case in light of previously filed case, case No. 1:15-cv-0576-GBL-IDD, in the Eastern District of Virginia, which
involves U.S. Patent No. RE45,598.
Counterclaims
In the ordinary course of business, the Company,
along with the Company’s wholly-owned subsidiaries, will initiate litigation against parties whom the Company believe have
infringed on intellectual property rights and technologies. The initiation of such litigation exposes us to potential counterclaims
initiated by the defendants. Currently, as stated above, defendants in the cases Spherix Incorporated v. VTech Telecommunications
Ltd.; Spherix Incorporated v. Uniden Corporation; Spherix Incorporated v. Cisco Systems Inc., and NNPT, LLC v. Huawei Investment
& Holding Co., Ltd. et al. have filed counterclaims against the Company. The Company has evaluated the counterclaims and
believe they are without merit and have not recorded a loss provision relating to such matters. The Company can provide no assurance
that the outcome of these claims will not have a material adverse affect on the Company’s financial position and results
from operation.
Item 2. Management’s Discussion and Analysis
of Financial Condition and Results of Operations
Forward-Looking Statements
You should read this discussion together
with the Financial Statements, related Notes and other financial information included elsewhere in this Form 10-Q. The following
discussion contains assumptions, estimates and other forward-looking statements that involve a number of risks and uncertainties.
These risks could cause our actual results to differ materially from those anticipated in these forward-looking statements. All
references to “we,” “us,” “our” and the “Company” refer to Spherix Incorporated,
a Delaware corporation and its consolidated subsidiaries unless the context requires otherwise.
Overview
We are an intellectual property company that
owns patented and unpatented intellectual property. Spherix Incorporated was formed in 1967 as a scientific research
company and for much of our history pursued drug development including through Phase III clinical studies which were largely discontinued
in 2012. In 2012 and 2013, we shifted our focus to being a firm that owns, develops, acquires and monetizes intellectual
property assets. Through our acquisitions of 108 patents and patent applications from Rockstar Consortium US, LP and
acquisition of several hundred patents issued to Harris Corporation as a result of our acquisition of North South, we have expanded
our activities in wireless communications and telecommunication sectors including antenna technology, Wi-Fi, base station functionality
and cellular.
Our activities generally include the acquisition
and development of patents through internal or external research and development. In addition, we seek to acquire existing
rights to intellectual property through the acquisition of already issued patents and pending patent applications, both in the
United States and abroad. We may alone, or in conjunction with others, develop products and processes associated with
our intellectual property and license our intellectual property to others seeking to develop products or processes or whose products
or processes infringe our intellectual property rights through legal processes. Using our patented technologies, we
employ strategies seeking to permit us to derive value from licensing, commercialization, settlement and litigation from our patents. We
will continue to seek to obtain patents from inventors and patent owners to monetize patent portfolios.
Results of Operations
Three months ended September 30, 2015 compared
to three months ended September 30, 2014
During the three months ended September 30,
2015 and 2014, revenue was nominal.
During the three months ended September
30, 2015, we incurred a loss from operations of $2.0 million, compared to $5.2 million for the same period in 2014. The
decrease in net loss was primarily attributed to a $1.5 million decrease in stock-based compensation expense, and a $1.8
million decrease in amortization expenses related to the Rockstar patents acquired by the Company during 2013 due to a $37.2
million impairment of intangible assets in the second quarter of 2015.
During the three months ended September 30,
2015 other expenses were approximately $0.8 million as compared to approximately $18,000 of other income for the comparable prior
period. The decrease in other income was primarily related to a $0.8 million non-cash fair value adjustment on warrants
issued in connection with the July 2015 Financing.
Nine months ended September 30, 2015 compared
to nine months ended September 30, 2014
During the nine months ended September 30,
2015 and 2014, revenue was nominal.
During the nine months ended September 30,
2015, we incurred a loss from operations of $46.4 million, compared to $24.8 million for the same period in 2014. During
the second half of 2014, the Company implemented certain cost cutting measures, including assessing its consultants and vendors. This
resulted in significant savings during the nine months ended September 30, 2015 as compared to the prior year period. The
increase in net loss was primarily attributed to a $37.2 million impairment charge taken against the goodwill and intangible assets
during the second quarter of 2015, offset by a $11.7 million decrease in stock-based compensation expense, and decreased professional
expenses of $1.6 million related to legal services, consulting services and accounting services, which was a result of our cost
cutting measures. During the nine months ended September 30, 2015 and 2014, we recorded $5.6 million and $7.4 million in amortization
expenses related to the Rockstar patents acquired by the Company during 2013.
During the nine months ended September 30,
2015, other expenses was approximately $0.7 million as compared to approximately $81,000 other income for the comparable prior
period. The increase in other income was related to a $0.8 million non-cash fair value adjustment on warrants issued
in connection with the July 2015 financing.
Liquidity and Capital Resources
We continue to incur ongoing administrative
and other expenses, including public company expenses, in excess of corresponding revenue.
While we continue to execute and implement
our business plan, we intend to finance our activities through:
| ● | managing current cash and cash equivalents on hand from our past equity offerings, |
| ● | seeking additional funds raised through the sale of additional securities in the future, |
| ● | seeking additional liquidity through credit facilities or other debt arrangements, and |
| ● | increasing revenue from the monetization of its patent portfolios, license fees, and new business ventures. |
Our business will require significant amounts
of capital to sustain operations and make the investments we need to execute our longer term business plan. We have a working capital
deficiency of $1.6 million and working capital of $3.2 million at September 30, 2015 and December 31, 2014, respectively. Cash
and cash equivalents were $0.2 million and $0.8 million as of September 30, 2015 and December 31, 2014, respectively. Marketable
securities were $0.8 million and $3.5 million as of September 30, 2015 and December 31, 2014, respectively. This decrease in cash
and cash equivalents, as well as the decrease in marketable securities, was primarily attributable to our payment of $0.9 million
related to the redemption of 5,601 shares our Series I Preferred Stock, as well as general operating expenses.
During the nine months ended September 30,
2015 and 2014, we used $3.7 million and $4.8 million, respectively, of cash in operating activities. The cash provided
by operating activities primarily resulted from our net loss for the nine months ended September 30, 2015 of $47.1 million, offset
by significant non-cash charges related to impairment of goodwill and intangibles of $37.2 million, amortization expenses of $5.6
million, fair value adjustment of warrant liabilities of $0.8 million, stock-based compensation expense of $0.2 million, plus a
$0.4 million decrease in cash from changes in operating assets and liabilities.
During the nine months ended September 30,
2015, we purchased $3.8 million and sold $6.5 million of marketable securities. During the nine months ended September 30,
2014, we paid down $1.0 million of the deferred purchase price related to the December 2013 Rockstar patent portfolio acquisition.
During the nine months ended September 30,
2015, we redeemed 5,601 shares of Series I Preferred Stock. In connection with this redemption, we paid RPX $0.9 million. In July
2015, we sold 5,719,530 shares of our Common Stock and Warrants to purchase up to an aggregate of 7,035,024 shares of our Common
Stock, yielding net proceeds of approximately $1.3 million, excluding the proceeds, if any, from the exercise of the July 2015
Warrants. On March 26, 2014, we received net proceeds of $3.9 million in a private placement made solely to accredited investors. On
June 2, 2014, we issued 10,000,000 shares of our Series J Preferred Stock. The net offering proceeds to the Company from the sale
of the shares were approximately $18.5 million, after deducting placement agent fees and other estimated offering expenses. In
June, 2014, we redeemed 84,219 shares of Series I Preferred Stock, resulting in a $14.1 million payment to Rockstar.
Our financial statements for the quarter ended
September 30, 2015 indicate there is substantial doubt about our ability to continue as a going concern as we are dependent on
our ability to retain short-term financing and ultimately to generate sufficient cash flow to meet our obligations on a timely
basis in order to attain profitability, as well as successfully obtain financing on favorable terms to fund our long-term plans.
Our business will require significant amounts of capital to sustain operations and make the investments we need to execute our
longer term business plan. Our working capital deficiency amounted to approximately $1.6 million at September 30, 2015. Our
existing liquidity is not sufficient to fund our operations, anticipated capital expenditures, working capital and other financing
requirements for the foreseeable future. We will need to obtain additional debt or equity financing, especially if we experience
downturns in our business that are more severe or longer than anticipated, or if we experience significant increases in expense
levels resulting from being a publicly-traded company or from the litigations in which we participate. If we attempt
to obtain additional debt or equity financing, we cannot assume that such financing will be available to us on favorable terms,
or at all. In June 2015, we received a letter from RPX alleging that our disclosure relating to the substantial doubt regarding
our ability to continue as a going concern in our previously filed Forms 10-K and 10-Q constitutes a default under the Intellectual
Property Security Agreement surrounding the Series I Redeemable Preferred Stock that was entered into with Rockstar in December
2013, which was transferred to RPX in January 2015 as part of the purchase of Rockstar by RPX. No communications or actions alleging
any breach have followed since the date of such initial communication from RPX. We strongly believe that there is no merit in the
allegation, and no legal basis for the claim.
Disputes regarding the assertion of patents
and other intellectual property rights are highly complex and technical. We may be forced to litigate against others
to enforce or defend our intellectual property rights or to determine the validity and scope of other parties’ proprietary
rights. The defendants or other third parties involved in the lawsuits in which we are involved may allege defenses and/or file
counterclaims or initiate inter partes reviews in an effort to avoid or limit liability and damages for patent infringement or
cause us to incur additional costs as a strategy. If such efforts are successful, they may have an impact on the value of the patents
and preclude us from deriving revenue from the patents, the patents could be declared invalid by a court or the United States Patent
and Trademark Office, in whole or in part, or our costs could increase.
As a result, a negative outcome of any such
litigation, or one or more claims contained within any such litigation, could materially and adversely impact our business. Additionally,
we anticipate that legal fees which are not included in contingency fee arrangements, experts and other expenses will be material
and could have an adverse effect on our financial condition and results of operations if our efforts to monetize these patents
are unsuccessful.
In addition, the costs of enforcing our patent
rights may exceed our recoveries from such enforcement activities. Accordingly, in order for us to generate a profit from our patent
enforcement and monetization activities, the revenues from such enforcement and monetization activities must be high enough to
offset both the cash outlays, litigation-related expenses and the contingent fees payable from such revenues, including any profit
sharing arrangements with inventors or prior owners of the patents. Our failure to monetize our patent assets or the occurrence
of unforeseen circumstances that could have a negative impact on our liquidity could significantly harm our business.
Should we be unsuccessful in our efforts to
execute our business plan, it could become necessary for us to reduce expenses, curtail operations or explore various alternative
business opportunities or possibly suspend or discontinue business activities.
Pursuant to the terms of our Series I Preferred
Stock, we are obligated to redeem 29,940 shares of our outstanding Series I preferred stock on December 31, 2015 at an aggregate
redemption price of $5,000,000. We currently do not have sufficient cash or working capital to make this payment. Our
failure to generate or raise sufficient cash and working capital to meet these obligations may result in our default under these
obligations, which would have a material and adverse impact on our results of operations and may require us to suspend or discontinue
business activities.
In addition, our ability to raise additional
capital for use in our operating activities may be adversely impacted by the terms of our Series I Preferred Stock. In the event
we consummate certain fundamental transactions, we shall be required to redeem such portion of the outstanding shares of Series
I Preferred Stock as shall equal (i) 50% of the net proceeds of the fundamental transaction after deduction of the amount of net
proceeds required to leave us with cash and cash equivalents on hand of $5.0 million and up until the net proceeds leave us with
cash and cash equivalents on hand of $7.5 million and (ii) 100% of the net proceeds of the fundamental transaction thereafter.
For these purposes, a fundamental transaction includes, among other things, the realization by us of net proceeds from any financing,
recovery, sale, license fee or other revenue received by us (including on account of any intellectual property rights held by us
and not just in respect of the patents) during any fiscal quarter in an amount which would cause our cash or cash equivalents to
exceed $5,000,000. Thus, a significant portion of any amount we raise in a financing transaction or generate from monetization
of our intellectual property may need to be used to redeem all or a portion of our Series I Preferred Stock rather than being used
to finance our operations.
Our ability to raise additional capital for
use in our operating activities also may be adversely impacted by the terms of a securities purchase agreement, dated as of July
15, 2015 (the “Securities Purchase Agreement”), between us and the investors who purchased securities in our July 2015
Financing. The Securities Purchase Agreement provides that, subject to certain exceptions, until September 21, 2015, neither we
nor any of our subsidiaries will issue, enter into any agreement to issue or announce the issuance or proposed issuance of any
shares of common stock or common stock equivalents. The Securities Purchase Agreement further provides that, until the warrants
issued thereunder are no longer outstanding, we will not affect or enter into a variable rate transaction, which includes issuances
of securities whose prices or conversion prices may vary with the trading prices of or quotations for the shares of our Common
Stock at any time after the initial issuance of such securities, as well as the entry into agreements where our stock would be
issued at a future-determined price. These warrants may remain outstanding as late as January 22, 2021, when the warrants expire
in accordance with their terms. The Securities Purchase Agreement also provides the Investors an 18 month right of participation
for an amount up to 100% of such subsequent financing common stock (or common stock equivalents or a combination thereof), on the
same terms and conditions of such transaction. Last, proceeds under the Securities Purchase Agreement are not permitted to be used
for satisfaction of our debt or for the redemption of our Series I Preferred Stock. These restrictions may have an adverse impact
on our ability to raise additional capital, or to use our cash to make certain payments that we are contractually obligated to
make.
We have filed a shelf registration statement
on Form S-3 with the SEC. The registration statement, which has been declared effective, was filed in reliance on Instruction
I.B.6. of Form S-3, which imposes a limitation on the maximum amount of securities that we may sell pursuant to the registration
statement during any twelve-month period. At the time we sell securities pursuant to the registration statement, the
amount of securities to be sold plus the amount of any securities we have sold during the prior twelve months in reliance on Instruction
I.B.6. may not exceed one-third of the aggregate market value of our outstanding common stock held by non-affiliates as of a day
during the 60 days immediately preceding such sale as computed in accordance with Instruction I.B.6. Based on this calculation
and as a result of our sale of common stock and warrants that closed on July 21, 2015, and utilizing a market price of our Common
Stock of $0.33 as of November 3, 2015, we are currently ineligible to sell securities pursuant to our effective registration statement
on Form S-3. The maximum amount of securities we are able to sell pursuant to that registration statement will
be based on the aggregate market value of our outstanding common stock held by non-affiliates as of a day during the 60 days preceding
that date (or any subsequent date on which we sell securities) minus $1,500,000, representing the value attributed to shares of
our common stock and warrants that we issued in reliance on Instruction I.B.6. of Form S-3 on July 21, 2015. Whether
we sell securities under the registration statement will depend on a number of factors, including the market conditions at that
time, our cash position at that time and the availability and terms of alternative sources of capital.
Rockstar will be entitled to receive a contingent
recovery percentage of future profits (“Participation Payments”) from licensing, settlements and judgments against
defendants with respect to patents purchased under the patent purchase agreement, dated as of July 10, 2013 between the Company
and Rockstar (as amended, the “First Patent Purchase Agreement”); however, no payment is required unless the Company
receives a recovery. The Participation Payments under the First Patent Purchase Agreement are equal to zero percent until the Company
recovers with respect to patents purchased under the First Patent Purchase Agreement at least (a) $8.0 million or (b) if we recover
less than $17.0 million, an amount equal to $5.0 million plus $3.0 million times a fraction equal to total recoveries minus $10.0
million, divided by $7.0 million (clause (a) or (b), as applicable, being the “Initial Return”), in each case net of
certain expenses. Once we obtain recoveries in excess of the Initial Return, we are required to make a payment to Rockstar
of $13.0 million, payable only from the proceeds of such recovery, within six months after such recovery. In addition, no later
than 30 days after the end of each quarter in which we make such a recovery, we are required to pay to Rockstar a percentage of
such recovery, net of certain expenses, scaling from 30% if such cumulative recoveries net of certain expenses are less than or
equal to $50.0 million, to 70% to the extent cumulative recoveries net of certain expenses are in excess of $1.0 billion.
Rockstar will also be entitled to receive Participation
Payments from licensing, settlements and judgments against defendants with respect to patents purchased under the patent purchase
agreement, dated as of December 31, 2013, between the Company and Rockstar (the “Second Patent Purchase Agreement”);
however, no payment is required unless we receive a recovery. The Participation Payments under the Second Patent Purchase Agreement
are equal to zero percent until we recover with respect to patents purchased under the Second Patent Purchase Agreement at least
$120.0 million, net of certain expenses. Once we obtain recoveries in excess of that amount, we are required to pay
to Rockstar 50% of our recovery in excess of that amount, no later than 30 days after the end of each quarter in which we make
such a recovery.
Our ability to fund these Participation Payments
or the $13.0 million contingent payment will depend on the liquidity of our assets, recoveries, alternative demands for cash resources
and access to capital at the time. Furthermore, our obligation to fund Participation Payments could adversely impact
our liquidity and financial position.
Item 3. Quantitative and
Qualitative Disclosures about Market Risk
Not required for smaller reporting companies.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
We maintain “disclosure controls and
procedures,” as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that are designed to ensure that information required to be disclosed by us in reports
that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified
in Securities and Exchange Commission rules and forms, and that such information is accumulated and communicated to our management,
including our Chief Executive Officer and our Interim Chief Financial Officer, to allow timely decisions regarding required disclosure.
In designing and evaluating our disclosure controls and procedures, management recognized that disclosure controls and procedures,
no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure
controls and procedures are met. Additionally, in designing disclosure controls and procedures, our management necessarily was
required to apply its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures.
The design of any disclosure controls and procedures
also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design
will succeed in achieving its stated goals under all potential future conditions.
With respect to the quarter ended September
30, 2015, under the supervision and with the participation of our management, we conducted an evaluation of the effectiveness of
the design and operations of our disclosure controls and procedures. Based upon this evaluation, the Company’s Chief Executive
Officer and Interim Chief Financial Officer have concluded that the Company’s disclosure controls and procedures were not
effective as of September 30, 2015. The Company has a lack of segregation of duties, and a lack of controls in place to ensure
that all material transactions and developments impacting the financial statements are reflected.
However, to the extent possible, we will implement
procedures to assure that the initiation of transactions, the custody of assets and the recording of transactions will be performed
by separate individuals. We believe that the foregoing steps will remediate the material weakness identified above, and we will
continue to monitor the effectiveness of these steps and make any changes that our management deems appropriate.
Management is in the process of determining
how best to make the required changes that are needed to implement an effective system of internal control over financial reporting.
Our management acknowledges the existence of this problem, and intends to develop procedures to address it to the extent possible
given the Company’s limitations in financial and human resources.
Management does not expect that our internal
control over financial reporting will prevent or detect all errors and all fraud. A control system, no matter how well conceived
and operated, can provide only reasonable, not absolute, assurance that the objectives of the control systems are met. Further,
the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be
considered relative to their costs. Because of the inherent limitations in a cost-effective control system, no evaluation of internal
control over financial reporting can provide absolute assurance that misstatements due to error or fraud will not occur or that
all control issues and instances of fraud, if any, have been or will be detected.
Changes in Internal Control over Financial
Reporting:
There were no changes in our
internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during
the fiscal quarter ended September 30, 2015 which have materially affected, or are reasonably likely to materially affect, our
internal control over financial reporting.
Part II. Other Information
Item 1. Legal Proceedings
Legal Proceedings
In the ordinary course of business, we actively
pursue legal remedies to enforce our intellectual property rights and to stop unauthorized use of our technology. Other than ordinary
routine litigation incidental to the business and other than as set forth below, we know of no material, active or pending legal
proceedings against us, except for those described below.
Guidance IP LLC v. T-Mobile Inc., Case No.
2:14-cv-01066-RSM, in the United States District Court for the Western District of Washington
On August 1, 2013, our wholly owned subsidiary
Guidance initiated litigation against T-Mobile Inc. (“T-Mobile”) in Guidance IP LLC v. T-Mobile Inc., Case No.
6:13-cv-01168-CEH-GJK, in the United States District Court for the Middle District of Florida for infringement of U.S. Patent No.
5,719,584 (the “Asserted Patent”). The complaint alleges that T-Mobile has manufactured, sold, offered for sale and/or
imported technology that infringes the Asserted Patent. We sought relief in the form of a finding of infringement of the Asserted
Patent, an accounting of all damages sustained by us as a result of T-Mobile’s infringement, actual damages, enhanced damages
under 35 U.S.C. Section 284, attorney’s fees and costs. On April 24, 2014, the United States District Court for the Middle
District of Florida transferred the case to the United States District Court for the Western District of Washington (“the
Court”). On July 14, 2014, the Court assigned the case a new case number, 2:14-cv-01066-RSM. On January 29, 2015, the Court
issued an Order requiring the parties to serve Initial Disclosures by February 26, 2015 and submit a Joint Status Report and Discovery
Plan to the Court by March 12, 2015, which were timely served and filed. At present, the dispute between the parties has been resolved.
On April 30, 2015, the parties filed a dismissal without prejudice of all claims, defenses and counterclaims, with all attorneys’
fees, costs of court and expenses to be borne by each party incurring the same.
Spherix Incorporated v. VTech Telecommunications
Ltd. et al., Case No. 3:13-cv-03494-M, in the United States District Court for the Northern District of Texas
On August 30, 2013, we initiated litigation
against VTech Telecommunications Ltd. and VTech Communications, Inc. (collectively “VTech”) in Spherix Incorporated
v. VTech Telecommunications Ltd. et al ., Case No. 3:13-cv-03494-M, in the United States District Court for the Northern District
of Texas (“the Court”) for infringement of U.S. Patent Nos. 5,581,599; 5,752,195; 5,892,814; 6,614,899; and 6,965,614
(collectively, the “Asserted Patents”). The complaint alleges that VTech has manufactured, sold, offered for sale and/or
imported technology that infringes the Asserted Patents. We seek relief in the form of a finding of infringement of the Asserted
Patents, an accounting of all damages sustained by us as a result of VTech’s infringement, actual damages, enhanced damages
under 35 U.S.C. Section 284, attorney’s fees and costs. On November 11, 2013, VTech filed its Answer with counterclaims requesting
a declaration that the Asserted Patents are non-infringed and invalid. On December 5, 2013, we filed our Answer to the counterclaims,
in which we denied that the Asserted Patents were non-infringed and invalid. On May 22, 2014, the Court entered a Scheduling Order
for the case setting trial to begin on January 11, 2016. On June 3, 2014, in an effort to narrow the case, the parties filed a
stipulation dismissing without prejudice all claims and counterclaims related to U.S. Patent No. 5,752,195. On September 4, 2014,
VTech Communications, Inc., together with Uniden America Corporation, filed a request for inter partes review (“IPR”)
of two of the Asserted Patents in the United States Patent and Trademark Office. On March 3, 2015, the Patent Trial and Appeal
Board (“Board”) entered decisions instituting, on limited grounds, IPR proceedings regarding a portion of the claims
for the two Spherix patents. The Board also suggested an accelerated IPR schedule to culminate in an oral hearing on or about September
28, 2015. The Board held a conference call with the parties on March 17, 2015 to finalize the IPR schedule. On October 27, 2014,
the Court held a Technology Tutorial Hearing for the educational benefit of the Court. The Markman hearing was held on November
21 and 26, 2014. Both the Technology Tutorial and the Markman hearing were held jointly with the Spherix Incorporated
v. Uniden Corporation et al. case (see below). On March 19, 2015, the Court issued its Markman order, construing a total
of 13 claim terms that had been disputed by the parties. On April 2, 2015, we filed an Amended Complaint with Jury Demand and the
parties filed a Settlement Conference Report informing the Court that the parties have not yet resumed settlement negotiations.
The Court has ordered the parties to hold a settlement conference not later than December 28, 2015. On April 15, 2015, we filed
a Motion to Compel Production of Technical Documents against Defendants. On April 20, 2015, we filed an Opposed Motion for Leave
to Serve Supplemental Infringement Contentions. Also on April 20, 2015, Defendants filed their Amended Answer to our Amended Complaint
with their counterclaims. On May 1, 2015, we filed our Answer to the counterclaims. On May 5, 2015, the parties filed a Joint Stipulation
and Motion to Modify the Scheduling Order. On May 6, 2015, the Court entered the Stipulation, in which the Court estimated the
trial date to occur in July of 2016 and ordered the parties to be ready for trial on or after June 22, 2016. Our patent owner’s
response to the petition in the IPR was timely filed on May 26, 2015. On September 28, 2015, the hearing in the IPR proceedings
was held before the Board. On October 9, 2015, the parties filed a Joint Motion to Stay the litigation pending the issuance of
the Board’s final written decisions in the IPR proceedings. On October 13, 2015, the Court granted the stay and administratively
closed the case until the Board issues its final written decisions.
Spherix Incorporated v. Uniden Corporation
et al., Case No. 3:13-cv-03496-M, in the United States District Court for the Northern District of Texas
On August 30, 2013, we initiated litigation
against Uniden Corporation and Uniden America Corporation (collectively “Uniden”) in Spherix Incorporated v. Uniden
Corporation et al. , Case No. 3:13-cv-03496-M, in the United States District Court for the Northern District of Texas (“the
Court”) for infringement of U.S. Patent Nos. 5,581,599; 5,752,195; 6,614,899; and 6,965,614 (collectively, the “Asserted
Patents”). The complaint alleges that Uniden has manufactured, sold, offered for sale and/or imported technology that infringes
the Asserted Patents. We seek relief in the form of a finding of infringement of the Asserted Patents, an accounting of all damages
sustained by us as a result of Uniden’s infringement, actual damages, enhanced damages under 35 U.S.C. Section 284, attorney’s
fees and costs. On April 15, 2014, Uniden filed its Answer with counterclaims requesting a declaration that the patents at issue
are non-infringed and invalid. On April 28, 2014, we filed our Answer to the counterclaims, in which we denied that the patents
at issue were non-infringed and invalid. On May 22, 2014, the Court entered a scheduling order for the case setting trial to begin
on February 10, 2016. On June 3, 2014, in an effort to narrow the case, the parties filed a stipulation dismissing without prejudice
all claims and counterclaims related to U.S. Patent No. 5,752,195. On September 4, 2014, Uniden America Corporation, together with
VTech Communications, Inc., filed a request for inter partes review (“IPR”) of two of the Asserted Patents in
the United States Patent and Trademark Office. On March 3, 2015, the Patent Trial and Appeal Board (“Board”) entered
decisions instituting, on limited grounds, IPR proceedings regarding a portion of the claims for the two Spherix patents. The Board
also suggested an accelerated IPR schedule to culminate in an oral hearing on September 28, 2015. The Board held a conference call
with the parties on March 17, 2015 to finalize the IPR schedule. On October 27, 2014, the Court held a Technology Tutorial Hearing
for the educational benefit of the Court. The Markman hearing was held on November 21 and 26, 2014, with both hearings occurring
jointly with the Spherix Incorporated v. VTech Telecommunications Ltd. et al. case (see above). On March 19, 2015, the Court
issued its Markman order, construing a total of 13 claim terms that had been disputed by the parties. On April 2, 2015,
we filed an Amended Complaint with Jury Demand and the parties filed a Settlement Conference Report informing the Court that the
parties have not yet resumed settlement negotiations. The Court has ordered the parties to hold a settlement conference not later
than January 20, 2016. On April 9, 2015, the parties filed a Joint Motion to Modify Patent Scheduling Order. On April 10, 2015,
the Court granted the Motion. On April 20, 2015, Defendants filed their Amended Answer to our Amended Complaint with their counterclaims.
On May 1, 2015, we filed our Answer to the counterclaims. Our patent owner’s response to the petition in the IPR was timely
filed on May 26, 2015. On July 9, 2015, the Court issued a modified Scheduling Order setting the Final Pretrial Conference for
February 2, 2016 and confirming the Trial Date beginning February 20, 2016. On September 9, 2015, the parties jointly filed a motion
to stay the case pending the decision in the two IPR proceedings. On September 10, 2015, the Court stayed the case and ordered
the parties to file a status report within 10 days of the Patent Office issuing its decision in the IPR proceedings. On October
13, 2015, the Court ordered the case administratively closed until the Board issues its final written decisions.
Spherix Incorporated v. Cisco Systems Inc.,
Case No. 1:14-cv-00393-SLR, in the United States District Court for the District of Delaware
On March 28, 2014, we initiated litigation
against Cisco Systems Inc. (“Cisco”) in Spherix Incorporated v. Cisco Systems Inc., Case No. 1:14-cv-00393-
SLR, in the United States District Court for the District of Delaware for infringement of U.S. Patent Nos. RE40467; 6,697,325;
6,578,086; 6,222,848; 6,130,877; 5,970,125; 6,807,174; 7,397,763; 7,664,123; 7,385,998; and 8,607,323 (collectively, the “Asserted
Patents”). The complaint alleges that Cisco has manufactured, sold, offered for sale and/or imported technology that infringes
the Asserted Patents. We seek relief in the form of a finding of infringement of the Asserted Patents, an accounting of all damages
sustained by us as a result of Cisco’s infringement, actual damages, enhanced damages under 35 U.S.C. Section 284, attorney’s
fees and costs. On July 8, 2014, we filed an amended complaint to reflect that certain of the patents asserted were assigned to
our wholly-owned subsidiary NNPT LLC (“NNPT”), based in Longview, Texas. By the amended complaint, NNPT was added as
a co-plaintiff with us. On August 5, 2014, Cisco filed a motion to dismiss certain claims alleged in the amended complaint. On
August 26, 2014, we and NNPT filed an opposition to Cisco’s motion to dismiss. On September 5, 2014, Cisco filed its reply
brief regarding its motion to dismiss. On March 9, 2015, Cisco moved to consolidate certain claims relating to alleged obligations
by us to license Cisco on two unrelated patents, which Cisco had made against us on June 6, 2014 in the pending case Bockstar
Technologies LLC v. Cisco Systems, Inc., Case No. 1:13-cv-02020- SLR-SRF (see below). On March 23, 2015, we filed our opposition
to Cisco’s motion to consolidate. On March 31, 2015, the Court granted Cisco’s motion to dismiss allegations of “willful”
infringement. Spherix’s allegations of patent infringement for the eleven (11) patents continue. Spherix has the ability
to re-allege “willful” infringement at a later time. On April 3, 2015, Cisco Systems, Inc. petitioned the U.S. Patent
Office for an inter partes review (“IPR”) of Spherix patents 7,397,763 and 8,607,323. The remaining nine patents
Spherix has asserted against Cisco were not part of the petitions and the time for Cisco to petition the USPTO for an IPR on those
remaining patents expired on April 6, 2015. On April 10, 2015, Cisco withdrew its March 9, 2015 motion to consolidate claims from
the Bockstar case. On May 5, 2015, Cisco filed its Answer to our amended complaint with counterclaims under the Sherman
Act, breach of contract, breach of covenant of good faith and fair dealing implied in contract, promissory estoppel, and requesting
a declaration that the patents at issue are non-infringed and invalid. On June 10, 2015, the Court entered a Scheduling Order for
the case. The Court set the Markman hearing to occur in two phases, for two different sets of patents, to occur on June
24, 2016 and September 8, 2016. The Court set trial to begin on January 16, 2018. On July 13, 2015, we filed our oppositions to
Cisco’s IPR petitions. On July 20, 2015, we filed a motion to dismiss or transfer certain of Cisco’s counterclaims.
On September 22, 2015, the Patent Trial and Appeal Board issued orders instituting the two IPR proceedings, Nos. IPR2015-00999
and IPR2015-01001, as requested by Cisco.
Spherix Incorporated v. Juniper Networks,
Inc., Case No. 1:14-cv-00578-SLR, in the United States District Court for the District of Delaware
On May 2, 2014, we initiated litigation against
Juniper Networks, Inc. (“Juniper”) in Spherix Incorporated v. Juniper Networks, Inc., Case No. 1:14-cv- 00578-SLR,
in the United States District Court for the District of Delaware for infringement of U.S. Patent Nos. RE40467; 6,578,086; 6,130,877;
7,385,998; 7,664,123; and 8,607,323 (collectively, the “Asserted Patents”). The complaint alleges that Juniper has
manufactured, sold, offered for sale and/or imported technology that infringes the Asserted Patents. We seek relief in the form
of a finding of infringement of the Asserted Patents, an accounting of all damages sustained by us as a result of Juniper’s
infringement, actual damages, enhanced damages under 35 U.S.C. Section 284, attorney’s fees and costs. On July 8, 2014, we
filed an amended complaint to reflect that certain of the patents asserted were assigned to our wholly-owned subsidiary NNPT LLC,
based in Longview, Texas. By the amended complaint, NNPT LLC was added as a co-plaintiff with us. On August 8, 2014, Juniper filed
a motion to dismiss certain claims alleged in the amended complaint. On August 29, 2014, we filed our opposition to Juniper’s
motion to dismiss. On September 15, 2014, Juniper filed its reply brief regarding its motion to dismiss. On March 31, 2015, the
Court granted Juniper’s motion to dismiss allegations of “willful” infringement. Spherix’s allegations
of patent infringement for the eleven (11) patents continue. Spherix has the ability to reallege “willful” infringement
at a later time. On April 14, 2015, Juniper filed its Answer to our amended complaint. On May 6, 2015, the Court held an in-person
Scheduling Conference in court and ordered the parties to submit the final proposed Scheduling Order to the Court. On May 28, 2015,
the Court entered a Scheduling Order for the case setting the Markman hearing for June 24, 2016 and trial to begin on May
15, 2017.
NNPT, LLC v. Huawei Investment & Holding
Co., Ltd. et al., Case No. 2:14-cv-00677-JRG-RSP, in the United States District Court for the Eastern District of Texas
On June 9, 2014, NNPT
initiated litigation against Futurewei Technologies, Inc., Huawei Device (Hong Kong) Co., Ltd., Huawei Device USA Inc.,
Huawei Investment & Holding Co., Ltd., Huawei Technologies Co., Ltd., Huawei Technologies Cooperatif U.A., and
Huawei Technologies USA Inc. (collectively “Huawei”), in NNPT, LLC v. Huawei Investment & Holding Co.,
Ltd. et al. , Case No. 2:14-cv-00677-JRG-RSP, in the United States District Court for the Eastern District of Texas
(“the Court”), for infringement of U.S. Patent Nos. 6,578,086; 6,130,877; 6,697,325; 7,664,123; and 8,607,323
(collectively, the “Asserted Patents”). On September 8, 2014, Huawei filed its answers to the complaint in which
defendant Huawei Technologies USA asserted counterclaims requesting a declaration that the patents at issue were
non-infringed and invalid. On October 8, 2014, NNPT filed its Answer to the counterclaims, in which it denied that the
Asserted Patents were non-infringed and invalid. On January 20, 2015, the Court held a Scheduling Conference and set the
Markman hearing for July 17, 2015 and trial to begin on February 8, 2016. On January 28, 2015, the Court appointed as
mediator for the parties, Hon. David Folsom, former Chief Judge of the United States District Court for the Eastern District
of Texas. On February 24, 2015, the Court issued its Docket Control Order setting the Markman hearing for July 17,
2015 and trial to begin on February 8, 2016. The Court also set an August 14, 2015 deadline to complete mediation. On June
11, 2015, Huawei filed a request for inter partes review (“IPR”) of two of the Asserted Patents in the
United States Patent and Trademark Office. On July 7, 2015, the Court reset the Markman hearing date for August 5,
2015. The Markman hearing was held on August 5, 2015 as scheduled. The parties held an initial mediation on August 6,
2015. On August 17, 2015, the Court issued its Markman Order. On August 20, 2015, the mediator filed a report with the Court
reporting that the parties reached a settlement of the case on August 14, 2015. On August 31, 2015, the parties filed a Joint
Motion to Stay and Notice of Settlement. On September 9, 2015, the Court stayed the case and set a status conference for
October 2, 2015. On September 18, 2015, the parties filed in the Patent Trial and Appeals Board (“Board”) a joint
motion to terminate the two IPR petitions filed by Huawei, Nos. IPR2015-01382 and IPR2015-01390. On September 24, 2015, the
Board issued orders terminating the two IPR proceedings. At the October 2, 2015 status conference, Huawei’s counsel
failed to appear. On October 2, 2015, the Court issued an order stating that “the parties shall appear for a hearing
before the Court October 16, 2015 at 8:30 a.m., unless an Order of Dismissal has been entered before then” and that
“Defendants shall pay Plaintiff’s reasonable expenses, including attorney’s fees, incurred for travel to
and attendance at the October 2, 2015 hearing.” On October 13, 2015, we received Huawei’s fully executed copy of
a confidential settlement and license agreement (the “Agreement”), the terms of which are set forth in our Current Report on Form 8-K,
dated October 19, 2015. Within five (5) business days of the confirmed payment of $295,000 by Huawei to the Company under the
terms of the Agreement, the parties thereto shall cause a stipulation of dismissal of all claims and counterclaims to be
filed with the Court.
Spherix Incorporated v. Verizon Services
Corp. et al., Case No. 1:14-cv-00721-GBL-TCB, in the United States District Court for the Eastern District of Virginia
On June 11, 2014, we initiated litigation against
Verizon Services Corp.; Verizon South Inc.; Verizon Virginia LLC; Verizon Communications Inc.; Verizon Federal Inc.; Verizon Business
Network Services Inc.; and MCI Communications Services, Inc. (collectively, “Verizon”) in Spherix Incorporated v.
Verizon Services Corp. et al. , Case No. 1:14-cv-00721-GBL-TCB, in the United States District Court for the Eastern District
of Virginia (“the Court”) for infringement of U.S. Patent Nos. 6,507,648; 6,882,800; 6,980,564; and 8,166,533. On July
2, 2014, we filed an Amended Complaint in the case in which we added allegations of infringement of U.S. Patent No. 7,478,167.
On August 15, 2014, Verizon filed a motion to dismiss, or in the alternative, a motion for a more definite statement. On September
9, 2014, the Court issued a Scheduling Order adopting the parties’ Joint Proposed Discovery Plan. According to the Scheduling
Order, the Markman hearing is currently scheduled for March 16, 2015. On September 12, 2014, we filed our opposition to
Verizon’s motion to dismiss, and on September 26, 2014, Verizon filed its reply brief. On October 3, 2014, the Court held
a hearing on the motion to dismiss and issued a Minute Entry stating that motion was denied. The Court stated that an Order would
follow. On October 17, 2014, Verizon filed an Answer to our Amended Complaint. The parties agreed to narrow the case by dismissing
without prejudice the claims under U.S. Patent Nos. 6,507,648 and 6,882,800, with each party to bear its own costs and attorneys’
fees as to the dismissed claims. The parties filed a joint motion to that effect on October 27, 2014, which was granted on October
30, 2014. The parties further agreed to narrow the case by dismissing without prejudice the claims under U.S. Patent Nos. 8,166,533
and 7,478,167, and filed a joint motion to that effect on November 6, 2014. On November 13, 2014, the Court granted the parties’
Joint Motion to Dismiss the ‘533 Patent and the ‘167 Patent without prejudice, with each party to bear its own costs
and attorneys’ fees as to the dismissed claims. On December 18, 2014, the Court set the case for a five day trial beginning
on May 18, 2015. On January 9, 2015, we and Verizon each filed their motions for summary adjudication and entry of proposed claim
constructions. On January 12, 2015, the Court set the motions for summary adjudication for hearing on March 16, 2015 along with
the Markman hearing. On January 22, 2015, the parties filed their oppositions to the motions for summary adjudication and
entry of proposed claim constructions, and on February 5, 2015, the parties filed their reply briefs. On March 16, 2015, the Court
held the Markman hearing as scheduled. On March 25, 2015, the Court reset the May 18, 2015 jury trial date to August 10,
2015. On March 25, 2015, the Court clarified that the trial will be held on August 10, 11, 12, 13 and 17 of 2015. On, June 11,
2015, Verizon filed a request for inter partes review (“IPR”) of the Asserted Patent in the United States Patent
and Trademark Office. On July 1, 2015, the Court granted Verizon’s motion for summary judgment as to indefiniteness and non-infringement.
On July 30, 2015, we filed a Notice of Appeal of the Court’s judgment in the United States Court of Appeals for the Federal
Circuit. On August 31, 2015, a settlement agreement between Spherix and Verizon was entered into, resolving all outstanding litigation
between the two companies. On September 4, 2015, we filed an unopposed motion to withdraw our Notice of Appeal. On September 8,
2015, the Court granted the motion to withdraw the Notice of Appeal. On September 10, 2015, the parties filed a joint motion to
terminated the IPR proceeding. On September 14, 2015, the Patent Trial and Appeal Board terminated Verizon’s petition.
Spherix Incorporated v. Verizon Services
Corp. et al., Case No. 1:15-cv-0576-GBL-IDD, in the United States District Court for the Eastern District of Virginia
On May 1, 2015, we initiated litigation against
Verizon Services Corp.; Verizon South Inc.; Verizon Virginia LLC; Verizon Communications Inc.; Verizon Federal Inc.; Verizon Business
Network Services Inc.; MCI Communications Services, Inc.; Cellco Partnership d/b/a Verizon Wireless; and Cisco Systems, Inc. (collectively,
“Defendants”) in Spherix Incorporated v. Verizon Services Corp. et al. , Case No. 1:15-cv-0576-GBL-IDD, in the
United States District Court for the Eastern District of Virginia for infringement of U.S. Patent Nos. 5,959,990; 6,111,876; RE40,999;
RE44,775; RE45,065; RE45,081; RE45,095; and RE45,121 (collectively, the “Asserted Patents”). The complaint alleges
that Defendants has used, manufactured, sold, offered for sale and/or imported technology that infringes the Asserted Patents.
We seek relief in the form of a finding of infringement of the Asserted Patents, damages sufficient to compensate us for Defendants’
infringement, together with pre-and post-judgment interest and costs, and our attorney’s fees. On June 30, 2014, we filed
an Amended Complaint to add allegations of infringement of U.S. Patent Nos. RE45,521 and RE45,598. On July 15, 2015, Cisco filed
a motion to transfer the case to the District of Delaware. On July 17, 2015, Verizon filed an Answer and Counterclaims to the Complaint.
On July 17, 2015, the Court issued a Scheduling Order setting the Final Pretrial Conference for November 19, 2015, with trial to
be set within 4-8 weeks of the pretrial conference. On July 31, 2015, we filed our Opposition to Cisco’s motion to transfer.
On August 5, 2015, the Court held an Initial Pretrial Conference in the case to discuss the discovery plan for the case. On August
6, 2015, we filed our answer to Verizon’s counterclaims. On August 11, 2015, the Court issued its Scheduling Order regarding
the discovery schedule, setting discovery to be concluded by November 15, 2015. On August 31, 2015, a settlement agreement between
Spherix and Verizon was entered into, resolving all outstanding litigation between the two companies. Cisco was not a party to
the agreement and the case continues against Cisco. On September 1, 2015, we and Verizon filed a joint motion to dismiss the Verizon
entities from the case. On September 2, 2015, the Court granted the motion to dismiss Verizon. On September 23, 2015, Cisco filed
a Consent Motion to transfer the action to the District of Delaware, and on September 25, 2015, the Court granted the motion. The
case has been transferred to the District of Delaware and assigned new case number 1:15-cv-00869-SLR.
Cisco Systems, Inc. v. Spherix Incorporated,
1:15-cv-00559-SLR, in the United States District Court for the District of Delaware
On June 30, 2015, Cisco Systems, Inc.
initiated litigation against us in United States District Court for the District of Delaware, requesting a declaration of
non-infringement U.S. Patent No. RE45,598, which issued on June 30, 2015, and, with respect to that patent, alleging breach
of contract, breach of covenant of good faith and fair dealing implied in contract and promissory estoppel. On August 28,
2015, we filed motions to dismiss the case in light of our previously filed case, case No. 1:15-cv-0576-GBL-IDD, in the
Eastern District of Virginia, which involves U.S. Patent No. RE45,598.
Counterclaims
In the ordinary course of business, we, along
with our wholly-owned subsidiaries, will initiate litigation against parties whom we believe have infringed on our intellectual
property rights and technologies. The initiation of such litigation exposes us to potential counterclaims initiated by the defendants.
Currently, as stated above, defendants in the cases Spherix Incorporated v. VTech Telecommunications Ltd ; Spherix Incorporated
v. Uniden Corporation; Spherix Incorporated v. Cisco Systems Inc., and NNPT, LLC v. Huawei Investment & Holding Co., Ltd. et
al. have filed counterclaims against us. We have evaluated the counterclaims and believe they are without merit and have not
recorded a loss provision relating to such matters. We can provide no assurance that the outcome of these claims will not have
a material adverse effect on our financial position and results from operations.
Item 1A. Risk Factors
An impairment charge could have a material adverse effect on
our financial condition and results of operations.
We are required to test our
finite-lived intangible assets for impairment if events occur or circumstances change that would indicate the remaining net
book value of the finite-lived intangible assets might not be recoverable. These events or circumstances could include a
significant change in the business climate, including a significant sustained decline in an entity’s market value,
legal factors, operating performance indicators, competition, sale or disposition of a significant portion of our business,
potential government actions and other factors. During the second quarter ended June 30, 2015, the Company determined that
certain events occurred that were indicators of a potential impairment. As a result, we assessed the value of our intangible
assets as of June 30, 2015 and recorded a $37.2 million impairment charge to our intangible assets. If the fair value of our
reporting units or finite intangible assets is less than their book value in the future, we could be required to record
additional impairment charges. A continued decline of the market price of our common stock could result in additional
impairment charges in the future. The amount of any impairment could be significant and could have a material adverse effect
on our reported financial results for the period in which the charge is taken.
In connection with our business, we may commence legal proceedings
against certain companies whose size and resources could be substantially greater than ours; we expect such litigation to be time-consuming,
lengthy and costly which may adversely affect our financial condition and our ability to survive or operate our business, even
if the patents are valid and the cases we bring have merit.
To license or otherwise monetize our patent
assets, we may be required to commence legal proceedings against certain large and well established and well capitalized companies. For
instance, we are currently involved in litigation against Cisco Systems, Uniden, VTech Telecommunications, Huawei and Juniper Networks,
each of whom is much larger and better capitalized than we are. We may allege that such companies infringe on one or
more of our patents. Our viability could be highly dependent on the outcome of this litigation, and there is a risk
that we may be unable to achieve the results we desire from such litigation. The defendants in litigation brought by
us are likely to be much larger than us and have substantially more resources than we do, which would make success of our litigation
efforts subject to factors other than the validity of our patents or infringement claims asserted. The inability to
successfully enforce our patents against larger more well-capitalized companies could result in realization through settlement
or election to not pursue certain infringers, or less value from our patents, and could result in substantially lower than anticipated
revenue realized from infringements and lower settlement values.
We anticipate that legal proceedings against
infringers of our patents may continue for several or more years and may require significant expenditures for legal fees and other
expenses. Disputes regarding the assertion of patents and other intellectual property rights are highly complex and
technical. In addition, courts and the laws are constantly changing in a manner that could increase our fees and expenses
for pursuing infringers, and also could result in our assumption of legal fees of defendants if we are unsuccessful. Once
initiated, we may be forced to litigate against others to enforce or defend our intellectual property rights or to determine the
validity and scope of other parties’ proprietary rights. The defendants or other third parties involved in the
lawsuits in which we are involved may allege defenses and/or file counterclaims in an effort to avoid or limit liability and damages
for patent infringement. Potential defendants could challenge our patents and our actions by commencing lawsuits seeking
declaratory judgments declaring our patents invalid, not infringed, or for improper or unlawful activities. If such
defenses or counterclaims are successful, they may preclude our ability to obtain damages for infringement or derive licensing
revenue from the patents. A negative outcome of any such litigation, or one or more claims contained within any such
litigation, could materially and adversely impact our business. For example, on July 1, 2015, the United States District
Court for the Eastern District of Virginia, the Court issued a Markman Order interpreting certain key claims in favor of the defendants
in one of our actions against Verizon, resulting in the dismissal of our claims against Verizon with respect to one of our patents.
Additionally, we anticipate that our legal fees and other expenses will be material and will negatively impact our financial condition
and results of operations and may result in our inability to continue our business.
Parties who are alleged infringers of our patent
rights may also challenge the validity of our patents in proceedings before the United States Patent and Trademark Office. These
potential proceedings include ex parte reexaminations, inter partes review, or covered business method patent challenges. These
proceedings could result in certain of our patent claims being dismissed or certain of our patents being invalidated. We
would expend signification legal fees to defend against such actions.
We have been the subject of litigation and,
due to the nature of our business, may be the target of future legal proceedings that could have an adverse effect on our business
and our ability to monetize our patents.
In the ordinary course of business, we, along
with our wholly-owned subsidiaries, will initiate litigation against parties whom we believe have infringed on our intellectual
property rights and technologies. The initiation of such litigation exposes us to potential counterclaims initiated by the defendants.
Currently, defendants in the cases Spherix Incorporated v. VTech Telecommunications Ltd. ; Spherix Incorporated v. Uniden
Corporation; Spherix Incorporated v. Cisco Systems Inc., and NNPT, LLC v. Huawei Investment & Holding Co., Ltd. et al.
have filed counterclaims against us. We have evaluated the counterclaims and believe they are without merit.
We may become subject to similar actions in
the future which will be costly and time consuming to defend, the outcome of which are uncertain.
Our ability to raise additional capital
may be adversely affected by certain of our agreements.
Our ability to raise additional capital for
use in our operating activities may be adversely impacted by the terms of our Series I Preferred Stock. In the event we consummate
certain fundamental transactions, we will be required to redeem such portion of our outstanding shares of Series I Preferred Stock
as shall equal (i) 50% of the net proceeds of the fundamental transaction after deduction of the amount of net proceeds required
to leave the Company with cash and cash equivalents on hand of $5.0 million and up until the net proceeds leave the Company with
cash and cash equivalents on hand of $7.5 million and (ii) 100% of the net proceeds of the fundamental transaction thereafter.
For these purposes, a fundamental transaction includes, among other things, the realization by us of net proceeds from any financing,
recovery, sale, license fee or other revenue received by the Company (including on account of any intellectual property rights
held by the Company and not just in respect of the patents) during any fiscal quarter in an amount which would cause our cash
or cash equivalents to exceed $5,000,000. Thus, a significant portion of any amount we raise in a financing transaction,
or generate from monetization of our intellectual property may need to be used to redeem all or a portion of our Series I Preferred
Stock rather than being used to finance our operations.
Our ability to raise additional capital for use in our operating activities also may be adversely impacted
by the terms of a securities purchase agreement, dated as of July 15, 2015 (the “Securities Purchase Agreement”), between
us and the investors who purchased securities in our July 2015 Financing. The Securities Purchase Agreement provides that, until
the warrants issued thereunder are no longer outstanding, we will not affect or enter into a variable rate transaction, which includes
issuances of securities whose prices or conversion prices may vary with the trading prices of or quotations for the shares of our
Common Stock at any time after the initial issuance of such securities, as well as the entry into agreements where our stock would
be issued at a future-determined price. These warrants may remain outstanding as late as January 22, 2021, when the warrants expire
in accordance with their terms. The Securities Purchase Agreement also provides the investors an 18-month right of participation
for an amount up to 100% of such subsequent financing of common stock (or common stock equivalents or a combination thereof) on
the same terms and conditions of such transaction. Last, proceeds we received under the Securities Purchase Agreement are not permitted
to be used for satisfaction of the Company’s debt or for the redemption of our Series I Preferred Stock. These restrictions
may have an adverse impact on our ability to raise additional capital, or to use our cash to make certain payments that we are
contractually obligated to make.
New legislation, regulations or court rulings
related to enforcing patents could harm our new line of business and operating results, or could cause us to change our business
model.
If Congress, the United States Patent and Trademark
Office or courts implement new legislation, regulations or rulings that impact the patent enforcement process or the rights of
patent holders, these changes could negatively affect our business. For example, limitations on the ability to bring
patent enforcement claims, limitations on potential liability for patent infringement, lower evidentiary standards for invalidating
patents, increases in the cost to resolve patent disputes and other similar developments could negatively affect our ability to
assert our patent or other intellectual property rights.
On September 16, 2011, the Leahy-Smith
America Invents Act (the “Leahy-Smith Act”), was signed into law. The Leahy-Smith Act includes a number
of significant changes to United States patent law. These changes include provisions that affect the way patent applications
will be prosecuted and may also affect patent litigation. The U.S. Patent Office has been developing regulations and
procedures to govern administration of the Leahy-Smith Act, and many of the substantive changes to patent law associated with the
Leahy-Smith Act recently became effective. Accordingly, it is too early to tell what, if any, impact the Leahy-Smith
Act will have on the operation of our business. However, the Leahy-Smith Act and its implementation could increase the
uncertainties and costs surrounding the prosecution of patent applications and the enforcement or defense of our issued patents,
all of which could have a material adverse effect on our business and financial condition.
On June 4, 2013, the Obama Administration
issued executive orders and legislative recommendations. The legislative measures recommended by the Obama Administration
include requiring patentees and patent applicants to disclose the “Real Party-in-Interest”, giving district courts
more discretion to award attorney’s fees to the prevailing party, requiring public filing of demand letters such that they
are accessible to the public, and protecting consumers against liability for a product being used off-the shelf and solely for
its intended use.
The executive orders require the United States
Patent and Trademark Office (the “USPTO”) to make rules to require the disclosure of the Real Party-in-Interest by
requiring patent applicants and owners to regularly update ownership information when they are involved in proceedings before the
USPTO (e.g. specifying the “ultimate parent entity”) and requiring the USPTO to train its examiners to better scrutinize
functional claims to prevent allowing overly broad claims.
On December 5, 2013, the United States
House of Representatives passed a patent reform titled the “Innovation Act” by a vote of 325-91. Representative
Bob Goodlatte, with bipartisan support, introduced the Innovation Act on October 23, 2013. The Innovation Act,
as passed by the House, has a number of major changes. Some of the changes include a heightened pleading requirement
for the filing of patent infringement claims. It requires a particularized statement with detailed specificity regarding
how each asserted claim term corresponds to the functionality of each accused instrumentality. The Innovation Act, as
passed by the House, also includes fee-shifting provisions which provide that, unless the non-prevailing party of a patent infringement
litigation positions were objectively reasonable, such non-prevailing party would have to pay the attorney’s fees of the
prevailing party.
The Innovation Act also calls for discovery
to be limited until after claim construction. The patent infringement plaintiff must also disclose anyone with a financial
interest in either the asserted patent or the patentee and must disclose the ultimate parent entity. When a manufacturer
and its customers are sued at the same time, the suit against the customer would be stayed as long as the customer agrees to be
bound by the results of the case.
Representative Goodlatte reintroduced the Innovation
Act as H.R. 9 on February 2, 2015. The bill has 22 co-sponsors, made up of 11 Democrats and 11 Republicans. On
February 5, 2015, the bill was referred to the House Committee on the Judiciary for further consideration, and on March 17, 2015,
the bill was referred to the House Subcommittee on Courts, Intellectual Property, and the Internet.
On March 3, 2015, S.632 known as the “Support
Technology and Research for Our Nations Growth Patents Act of 2015” (“the STRONG Act”) was introduced into the
Senate by Senator Christopher Coons. The STRONG Act prescribes a number of changes in current patent law, including how the USPTO
and the Patent Trial and Appeal Board (PTAB) handle post-issuance patent proceedings. One change proposed by the Act is that the
PTAB construe patent claims under the same “ordinary and customary meaning” standard in inter partes and post grant
review proceedings as applied in district court litigation. The Act also provides additional grounds for a patent owner to submit
claim amendments during a post-issuance review. The Act directs the Supreme Court to eliminate the model complaint for patent infringement.
It also authorizes state attorneys general to act in preventing bad faith demand letters from being sent to accused infringers.
The Act would allow such behavior to be treated as an unfair or deceptive act or practice in violation of the Federal Trade commission
Act.
On April 29, 2015, the Energy and Commerce
Committee voted to advance a bill to the full U.S. House of Representatives known as the “Targeting Rogue and Opaque Letters
Act” (“the TROL Act”) (H.R. 2045). This bill is aimed at halting misleading demand letters sent by patent “trolls.”
The bill would give the Federal Trade Commission and state attorneys general the authority to impose civil penalties on companies
that send misleading and bad faith letters to recipients demanding that they license patents.
Also on April 29, 2015, a group of bipartisan
Senators introduced S. 1137, another new patent reform bill titled, the “Protecting American Talent and Entrepreneurship”
(the “PATENT Act”). The bill includes provisions requiring patent plaintiffs to clearly identify each patent and claim
allegedly infringed, the products or processes, accused of infringing, and how the infringement occurs. The bill also provides
that if end users of a product are sued for infringement, the manufacturer can step-in to litigate and the suit against the users
will be stayed. A fee-shifting provision is also included that provides winning parties a chance to show that the losing party’s
position and conduct were not “objectively reasonable.”
On April 29, 2014, the U.S. Supreme Court
relaxed the standard for fee shifting in patent infringement cases. Section 285 of the Patent Act provides that
attorneys’ fees may be awarded to a prevailing party in a patent infringement case in “exceptional cases.”
In Octane Fitness, LLC v. Icon Health
& Fitness, Inc., the Supreme Court overturned the U.S. Court of Appeals for the Federal Circuit decisions limiting the
meaning of “exceptional cases.” The U.S. Supreme Court held that an exceptional case “is simply one
that stands out from others with respect to the substantive strength of a party’s litigation position” or “the
unreasonable manner in which the case was litigated.” The U.S. Supreme Court also rejected the “clear and
convincing evidence” standard for making this inquiry. The Court held that the standard should be a “preponderance
of the evidence.”
In Highmark Inc. v. Allcare Health
Mgmt. Sys., Inc., the U.S. Supreme Court held that a district court’s grant of attorneys’ fees is reviewable by
the U.S. Court of Appeals for the Federal Circuit only for “abuse of discretion” by the district court instead of the de
novo standard that gave no deference to the district court.
These pair of decisions lowered the threshold
for obtaining attorneys’ fees in patent infringement cases and increased the level of deference given to a district court’s
fee-shifting determination.
These two cases will make it much easier for
district courts to shift a prevailing party’s attorneys’ fees to a non-prevailing party if the district court believes
that the case was weak or conducted in an abusive manner. Defendants that get sued for patent infringement by non-practicing
entities may elect to fight rather than settle the case because these U.S. Supreme Court decisions make it much easier for defendants
to get attorneys’ fees.
On June 19, 2014, the U.S. Supreme Court
decided Alice Corp. v. CLS Bank International in which the Court addressed the question of whether patents related
to software are patent eligible subject matter. The Supreme Court did not rule that patents related to software were per
se invalid or that software-related inventions were unpatentable. The Supreme Court outlined a test that the courts
and the USPTO must apply in determining whether software-related inventions qualify as patent eligible subject matter. We
must now wait and see how the federal district courts and the USPTO will apply this ruling. The test outlined by the
Supreme Court could potentially affect the value of some of the patents we hold.
On January 20, 2015, the U.S. Supreme Court
decided another patent case, Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. In Teva, the Court overturned
the long-standing practice that claim construction decision made by district courts were given de novo review on appeal. Instead,
the Supreme Court held that when claim construction is based on extrinsic evidence, a district court’s findings of subsidiary
facts are to be reviewed for clear error, while its ultimate claim construction is to be reviewed de novo. This
change in how claim construction decisions are reviewed on appeal may have an impact on how parties handle patent litigation in
the district courts. This could increase our litigation expenses. The full impact of the Teva decision
on patent litigation at the district court level is yet to be determined.
On May 26, 2015, the U.S. Supreme Court decided
Commil USA LLC v. Cisco Systems, Inc. In this case, the Supreme Court held that a good faith belief that a patent is invalid
does not provide an accused infringer with a defense against a charge of inducing patent infringement. The Court stated that permitting
such a defense would undermine the statutory presumption of validity enjoyed by issued U.S. patents under 35 U.S.C. § 282.
The long term effect of this ruling is yet to be seen as it is implemented by the district courts. However, this ruling has eliminated
a defense available to parties accused of inducing patent infringement. This result could be beneficial to our patent enforcement
efforts.
It is impossible to determine the extent of
the impact of any new laws, regulations or initiatives that may be proposed, or whether any of the proposals will become enacted
as laws in their current or modified forms. Compliance with any new or existing laws or regulations could be difficult
and expensive, affect the manner in which we conduct our business and negatively impact our business, prospects, financial condition
and results of operations.
If we are unable to successfully monetize
our patent assets, or if we cannot obtain sufficient capital to see our legal proceedings to fruition, our business model may be
subject to change.
Our current business model of monetizing patent
assets primarily through litigation against companies infringing on our intellectual property results in the potential for sporadic
income. This makes us dependent on successful outcomes of our litigation claims, as well as obtaining financing from third-party
sources to fund these litigations. If we are unable to generate revenue and are unable to raise additional capital on commercially
reasonable terms, or if changes in law make our current business model infeasible, then we may determine to change our business
model in a manner that would be anticipated to generate revenue on a more regular basis. If we determine to change our business
model, it may be difficult to predict our future prospects. Furthermore, we may incur significant expenses in any such shift in
business model, or our management may have to devote significant resources into developing, or may not be well suited for, any
such new business model.
We have ongoing financial obligations to
certain stockholders under the terms of our acquisition of certain patents from Rockstar. Our failure to comply with
our obligations to these stockholders could have a material adverse effect on the value of our assets, our financial performance
and our ability to sustain operations.
In connection with our agreement to acquire
Rockstar patents entered on December 31, 2013, the Company and Rockstar entered into a series of agreements which require
us to redeem $20.0 million of stated value of Series I Preferred Stock in $5 million increments on each of the 6, 12, 18 and 24
month anniversaries of the purchase. While as of September 30, 2015 we have redeemed $15.0 million of these shares,
we presently have inadequate cash to fund the remaining payment. In the event that such payment is not timely made,
the holders of our Series I Preferred Stock may employ certain remedies, including the imposition of interest at a rate of 15%
per annum from the closing date on unpaid and unconverted amounts due, and to reduce the redemption obligations through sale or
recovery of patents we purchased from Rockstar in that acquisition at a value equal to unconverted amounts due which have been
pledged as collateral for such obligations in the case of certain defaults as set forth in our agreements with Rockstar. Rockstar
has filed a UCC-1 covering our redemption obligations and has the right to foreclose on the collateral. The redemption
obligation is also required to be satisfied in the event that we engage in certain capital raising transactions (among other instances,
where such transactions result in net proceeds to us in excess of $7.5 million) and from recoveries on other assets. The
obligation to utilize capital from financings and from other sources or the loss of patents to Rockstar upon a default could adversely
impact our liquidity and financial position.
In January 2015, Rockstar transferred its remaining
outstanding Series I Preferred Stock, as well as its other stock in Spherix (including our Series H Convertible Preferred Stock)
to RPX Clearinghouse LLC (“RPX”), an affiliate of RPX Corporation. Since RPX’s business model is to lower the
risk of patent litigation against entities such as Spherix, RPX may take stances that are adverse to Spherix and its other stockholders.
In June 2015, the Company received a letter from RPX alleging that the Company’s disclosure relating to the substantial doubt
regarding its ability to continue as a going concern in its previously filed Forms 10-K and 10-Q constitutes a default under the
Intellectual Property Security Agreement surrounding the Series I Preferred Stock that was entered into with Rockstar in December
2013, which was transferred to RPX in January 2015 as part of the purchase of Rockstar by RPX. No communications or actions alleging
any breach have followed since the date of such initial communication from RPX. We strongly believe that there is no merit in the
allegation, and no legal basis for the claim.
In addition, RPX will be entitled to receive
a contingent recovery percentage of future profits from licensing, settlements and judgments against defendants with respect to
patents purchased by us from Rockstar. In particular, once we recover a certain amount of proceeds pertaining to the
patents acquired from Rockstar in June 2013, which amount will not exceed $8.0 million, net of certain expenses, we will be required
to make a payment of up to $13.0 million to Rockstar within six months of such recovery. Furthermore, once we recover
a certain level of proceeds pertaining to each portfolio of patents we acquired from Rockstar, we will be required to make participation
payments to RPX which, depending on how much we recover, could range from 30% of the amount we recover to 70% of the amount we
recover in any given quarter, net of certain expenses. Our ability to fund these payments, as well as other payments
that may become due in respect of our acquisition of patents from Rockstar in December 2013, will depend on the liquidity of our
assets, recoveries, alternative demands for cash resources and access to capital at the time. Furthermore, our obligation
to fund these payments could materially adversely impact our liquidity and financial position.
Our common stock may be delisted from The
Nasdaq Capital Market if we fail to become compliant with continued listing standards by March 21, 2016.
Our common stock is currently traded on The
Nasdaq Capital Market under the symbol “SPEX.” If we fail to meet any of the continued listing standards
of The Nasdaq Capital Market, our common stock could be delisted from The Nasdaq Capital Market. These continued listing
standards include specifically enumerated criteria, such as:
• |
a $1.00 minimum closing bid price; |
• |
stockholders’ equity of $2.5 million; |
• |
500,000 shares of publicly-held common stock with a market value of at least $1 million; |
• |
300 round-lot stockholders; and |
• |
compliance with Nasdaq’s corporate governance requirements, as well as additional or more stringent criteria that may be applied in the exercise of Nasdaq’s discretionary authority. |
Over the past several years, including at certain
times prior to entering into our new line of business, we had several instances of Nasdaq deficiencies.
On April 20, 2012, the Company received
a deficiency notice from Nasdaq regarding the bid price of our common stock. Following a 1 for 20 reverse stock split,
on October 8, 2012, Nasdaq provided confirmation to us that we regained compliance with Marketplace Rule 5550(a)(2) since
the closing bid price of its common stock had traded at $1.00 per share or greater for at least ten (10) consecutive business days. This
was the second time the Company employed a reverse stock split to avoid Nasdaq delisting.
On September 25, 2012, the Company received
written notification from Nasdaq advising that the minimum number of publicly held shares of our common stock had fallen below
the minimum 500,000 shares required for continued listing on the Nasdaq Capital Market pursuant to Nasdaq Rule 5550(a)(4). As
a result of our November 2012 private placement transaction, the Company was advised by Nasdaq that it regained compliance with
Rule 5550(a) (4).
On December 31, 2012, our total stockholders’
equity was $854,000, and was below the $2.5 million listing standard required by Nasdaq. In March 2013, we exchanged
warrants issued in November 2012 for Series C Preferred Stock, effectively increasing total stockholders’ equity to approximately
$2.8 million.
On March 24, 2015, we received a deficiency
notice from Nasdaq, notifying us that the bid price of our common stock no longer met Nasdaq’s continued listing requirements. According
to the notice, in order to regain compliance with the Nasdaq listing rules, our common stock would need to have a closing bid price
of at least $1.00 per share for at least 10 consecutive trading days no later than September 21, 2015. On September 22, 2015, we
received a letter from Nasdaq granting us an additional 180 days, or until March 21, 2016, to regain compliance. It is unknown
at this time if we will be able to regain compliance with the minimum bid price requirement within the additional time allowed
in order to continue our common stock listing on Nasdaq Capital Market. Continued listing during this period is also contingent
on our continued compliance with all listing requirements other than for the minimum bid price. While we hope to regain compliance
in the ordinary course of business, we may consider a reverse stock split, if necessary to continue our listing, and have committed
to Nasdaq to do so if necessary. However, even if we do effect such a reverse stock split, our stockholders may bring actions against
us in connection with that reverse stock split that could divert management resources, cause us to incur significant expenses or
cause our common stock to be further diluted.
If we fail to comply with Nasdaq’s continued
listing standards, we may be delisted and our common stock will trade, if at all, only on the over-the-counter market, such as
the OTC Bulletin Board or OTCQX market, and then only if one or more registered broker-dealer market makers comply with quotation
requirements. In addition, delisting of our common stock could depress our stock price, substantially limit liquidity
of our common stock and materially adversely affect our ability to raise capital on terms acceptable to us, or at all.
Finally, delisting of our common stock would
likely result in our common stock becoming a “penny stock” under the Securities Exchange Act. The principal
result or effect of being designated a “penny stock” is that securities broker-dealers cannot recommend the shares
but must trade it on an unsolicited basis. Penny stock rules require a broker-dealer, prior to a transaction in a penny stock not
otherwise exempt from those rules, to deliver a standardized risk disclosure document prepared by the SEC, which specifies information
about penny stocks and the nature and significance of risks of the penny stock market. A broker-dealer must also provide the customer
with bid and offer quotations for the penny stock, the compensation of the broker-dealer and sales person in the transaction, and
monthly account statements indicating the market value of each penny stock held in the customer’s account. In addition, the
penny stock rules require that, prior to a transaction in a penny stock not otherwise exempt from those rules; the broker-dealer
must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s
written agreement to the transaction. These disclosure requirements may have the effect of reducing the trading activity in the
secondary market for shares that become subject to those penny stock rules.
Our share price may be volatile and there
may not be an active trading market for our common stock.
There can be no assurance that the market price
of our common stock will not decline below its present market price or that there will be an active trading market for our common
stock. The market prices of technology or technology related companies have been and are likely to continue to be highly
volatile. Fluctuations in our operating results and general market conditions for technology or technology related stocks
could have a significant impact on the volatility of our common stock price. We have experienced significant volatility
in the price of our common stock. From January 1, 2013 through November 3, 2015, the share price of our common
stock (on a split-adjusted basis) has ranged from a high of $27.86 to a low of $0.20. The reason for the volatility in our
stock is not well understood and may continue. Factors that may have contributed to such volatility include, but are
not limited to:
| • | developments regarding regulatory filings; |
| • | our funding requirements and the terms of our financing arrangements; |
| • | technological innovations; |
| • | introduction of new technologies by us or our competitors; |
| • | material changes in existing litigation; |
| • | changes in the enforceability or other matters surrounding our patent portfolios; |
| • | government regulations and laws; |
| • | public sentiment relating to our industry; |
| • | developments in patent or other proprietary rights; |
| • | the number of shares issued and outstanding; |
| • | the number of shares trading on an average trading day; |
| • | performance of companies in the non-performing entity space generally; |
| • | announcements regarding other participants in the technology and technology related industries, including our competitors; |
| • | block sales of our shares by stockholders to whom we have sold stock in private placements, or the cessation of transfer restrictions
with respect to those shares; and |
| • | market speculation regarding any of the foregoing. |
We may be unable to issue securities under
our shelf registration statement, which may have an adverse effect on our liquidity.
We have filed a shelf registration statement
on Form S-3 with the SEC. The registration statement, which has been declared effective, was filed in reliance on Instruction
I.B.6. of Form S-3, which imposes a limitation on the maximum amount of securities that we may sell pursuant to the registration
statement during any twelve-month period. At the time we sell securities pursuant to the registration statement, the
amount of securities to be sold plus the amount of any securities we have sold during the prior twelve months in reliance on Instruction
I.B.6. may not exceed one-third of the aggregate market value of our outstanding common stock held by non-affiliates as of a day
during the 60 days immediately preceding such sale as computed in accordance with Instruction I.B.6. Based on this calculation
and as a result of our sale of common stock and warrants that closed on July 21, 2015, we are currently ineligible to sell securities
pursuant to our effective registration statement on Form S-3. Whether we sell securities under the registration
statement will depend on a number of factors, including availability of our existing S-3 under the 1/3 limitation calculations
set forth in Instruction I.B.6 of Form S-3, the market conditions at that time, our cash position at that time and the availability
and terms of alternative sources of capital. Furthermore, Instruction I.B.6. of Form S-3 requires that the issuer have at
least one class of common equity securities listed and registered on a national securities exchange. If we are not able to maintain
compliance with applicable Nasdaq rules, we will no longer be able to rely upon that Instruction. If we cannot sell securities
under our shelf registration, we may be required to utilize more costly and time-consuming means of accessing the capital markets,
which could materially adversely affect our liquidity and cash position.
Item 2. Unregistered
Sales of Equity Securities and Use of Proceeds
On June 10, 2015, the Company entered into
a consulting agreement with a third party for three months of investor relations services. The Company has agreed to pay the consultant
a monthly fee of $10,000, payable in shares of Common Stock for each month of the term. The Company issued 15,625 and 25,641 shares
of Common Stock to this service provider on June 10, 2015 and July 10, 2015, respectively.
On June 15, 2015, the Company entered into
a consulting agreement with a third party for three months of investor relations services. The Company agreed to pay the consultant
a monthly fee of $5,000 for three months commencing on June 15, 2015, and granted 45,000 shares of restricted stock valued at $27,000
in the aggregate. The restricted stock awards vest monthly for each of the three months following the grant date.
Each of these issuances was made in reliance
on exemptions under Section 4(a)(2) under the Securities Act of 1933, as amended, and the Company received no proceeds of these
issuances.
Item 6. Exhibits
1.1 |
Placement Agency Agreement, dated July 15, 2015, between Spherix Incorporated and Chardan Capital Markets, LLC (incorporated by reference to the Form 8-K filed on July 17, 2015) |
10.1 |
Securities Purchase Agreement, dated July 15, 2015, between Spherix Incorporated and each purchaser identified on the signature pages thereto (incorporated by reference to the Form 8-K filed on July 17, 2015) |
10.2 |
Common Stock Purchase Warrant, dated July 21, 2015 (incorporated by reference to the Form 8-K filed on July 17, 2015) |
10.3 |
Consulting Services Agreement, dated August 10, 2015, between Spherix Incorporated and Howard E Goldberg (d/b/a Forward Vision Associates) (incorporated by reference to the Form 8-K filed on August 19, 2015) |
31.1 |
Certification of Chief Executive Officer of Spherix Incorporated pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
31.2 |
Certification of Interim Chief Financial Officer of Spherix Incorporated pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
32.1 |
Certification of Chief Executive Officer of Spherix Incorporated pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
32.2 |
Certification of Interim Chief Financial Officer of Spherix Incorporated pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
101.INS |
XBRL Instance Document. |
101.SCH |
XBRL Taxonomy Extension Schema Document |
101.CAL |
XBRL Taxonomy Extension Calculation Linkbase Document |
101.DEF |
XBRL Taxonomy Extension Definition Linkbase Document |
101.LAB |
XBRL Taxonomy Extension Label Linkbase Document |
101.PRE |
XBRL Taxonomy Extension Presentation Linkbase Document |
Signatures
Pursuant to the requirements of the Exchange
Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Spherix Incorporated |
(Registrant) |
|
Date: November 4, 2015 |
By: /s/ Anthony Hayes |
|
Anthony Hayes |
|
Chief Executive Officer |
|
(Principal Executive Officer) |
|
|
Date: November 4, 2015 |
By: /s/ Frank Reiner |
|
Frank Reiner |
|
Interim Chief Financial Officer |
|
(Principal Financial Officer and Principal Accounting Officer) |
Exhibit 31.1
Certification of
Principal Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
I, Anthony Hayes, certify that:
1. |
I have reviewed this report on Form 10-Q of Spherix Incorporated; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
(d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
|
/s/ Anthony Hayes
Anthony Hayes
Chief Executive Officer and Director
(Principal Executive Officer)
November 4, 2015 |
Exhibit 31.2
Certification of
Interim Chief Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
I, Frank Reiner, certify that:
1. |
I have reviewed this report on Form 10-Q of Spherix Incorporated; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
|
(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
(c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
(d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions): |
|
(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|
(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
|
/s/ Frank Reiner
Frank Reiner
Interim Chief Financial Officer
(Principal Financial and Accounting Officer)
November 4, 2015 |
Exhibit 32.1
Certification of
Principal Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002
I, Anthony Hayes, Chief Executive Officer and
Director of Spherix Incorporated (the “Company”), in compliance with Section 906 of the Sarbanes-Oxley Act of 2002,
hereby certify that, to the best of my knowledge, the Company’s Quarterly Report on Form 10-Q for the period ended September
30, 2015 (the “Report”) filed with the Securities and Exchange Commission:
| • | Fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and |
| • | The information contained in the Report fairly presents,
in all material respects, the financial condition and results of operations of the Company. |
|
/s/ Anthony Hayes
Anthony Hayes
Chief Executive Officer and Director
(Principal Executive Officer)
November 4, 2015 |
A signed copy of this written statement required
by Section 906 has been provided to Spherix Incorporated and will be retained by Spherix Incorporated and furnished to the Securities
and Exchange Commission or its staff upon request.
Exhibit 32.2
Certification of
Interim Chief Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002
I, Frank Reiner, Interim Chief Financial Officer
of Spherix Incorporated (the “Company”), in compliance with Section 906 of the Sarbanes-Oxley Act of 2002, hereby certify
that, to the best of my knowledge, the Company’s Quarterly Report on Form 10-Q for the period ended September 30, 2015 (the
“Report”) filed with the Securities and Exchange Commission:
| • | Fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and |
| • | The information contained in the Report fairly presents,
in all material respects, the financial condition and results of operations of the Company. |
|
/s/ Frank Reiner
Frank Reiner
Interim Chief Financial Officer
(Principal Financial and Accounting Officer)
November 4, 2015 |
A signed copy of this written statement required
by Section 906 has been provided to Spherix Incorporated and will be retained by Spherix Incorporated and furnished to the Securities
and Exchange Commission or its staff upon request.
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