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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13
OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the year ended December 31, 2008
Commission File Number 0-25882
EZENIA! INC.
(Exact
name of registrant as specified in its charter)
DELAWARE
|
|
04-3114212
|
(State or other
jurisdiction of incorporation or organization)
|
|
(I.R.S. employer identification
number)
|
14 Celina Ave, Suite 17-18, Nashua, New Hampshire
03063
(Address of principal executive offices, including
zip code)
(603) 589-7600
(Registrants
telephone number, including area code)
Securities
Registered Pursuant to Section 12(b) of the Act:
None
Securities
Registered Pursuant to Section 12(g) of the Act:
Common
Stock $.01 par value
Preferred
Stock Purchase Rights
Indicate by check mark if the Registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act
Yes
o
No
x
Indicate by check mark if the Registrant is not required to file
reports pursuant to Section 13 or 15(d) of the Act
Yes
o
No
x
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period
that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes
x
No
o
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrants knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or
any amendment to this Form 10-K.
x
Indicate by check mark whether the Registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act. Large Accelerated
Filer
o
Accelerated Filer
o
Non-Accelerated Filer
o
Smaller Reporting Company
x
Indicate by checkmark whether the Registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act)
Yes
o
No
x
The aggregate market value of the voting and non-voting common stock
held by non-affiliates of the Registrant was $6,889,362 (computed by reference
to the price at which the Registrants common stock was last sold on the OTC
Bulletin Board on June 30, 2008).
The number of shares outstanding of the Registrants common stock as of
March 23, 2009 was 14,658,217.
DOCUMENTS
INCORPORATED BY REFERENCE
Portions of the definitive Proxy Statement to be delivered to
stockholders in connection with the Annual Meeting of Stockholders to be held May 26,
2009 are incorporated by reference into Part III hereof. With the
exception of the portion of such Proxy Statement that is expressly incorporated
herein, such Proxy Statement shall not be deemed filed as part of this Annual
Report on Form 10-K.
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Ezenia! Inc.
2008 Form 10-K Annual Report
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The Companys trademarks
include Ezenia!, the Ezenia! Logo, InfoWorkSpace, LaunchPad, and Encounter. All other trademarks referred to in this
document are the property of their respective companies.
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PART I
This Annual Report on Form 10-K
contains forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Actual
results could differ materially from those set forth in the forward-looking
statements. Certain factors that might
cause such a difference are discussed in this report, including in Item 1A Risk
Factors beginning on page 9.
ITEM 1. BUSINESS
Founded in 1991,
Ezenia! Inc., a Delaware corporation (Ezenia, we, or the Company),
develops and markets products that enable organizations to provide technically
advanced high-quality group communication to commercial, governmental, consumer
and institutional users. Our products allow individuals and groups, regardless
of proximity constraints, to interact and share information in a natural,
spontaneous way voice-to-voice, face-to-face, mouse-to-mouse, or
keyboard-to-keyboard flexibly, securely and in real-time. Using our products,
individuals can interact through a natural meeting experience, allowing groups
to work together effectively and disseminate vital information quickly in an
extremely secure manner using advanced technology for both network security and
data encryption.
We offer one of the most comprehensive commercially available lines of
group communication products. Our
InfoWorkSpace software product (IWS) enables voice communication, instant
messaging, white boarding, virtual workspaces, and video across a wide range of
networks including local area networks, and wide area networks. Furthermore, because our products are well
suited for operating from small enclave environments to large multi-locations
on public networks, they can be deployed with relative ease at small sites or
in locations with a large number of users.
Users can be virtually anywhere on the planet so long as they have network
access.
We sold IWS and related services
to customers in the federal government, mostly in the Department of Defense (DoD)
and the intelligence community, either directly, or in many instances, in
partnership with the premier defense contractors and/or integrators. It is in our interest to leverage these
partnerships with well-established contractors and/or integrators to further
expand the deployment and provide the support of IWS in large-scale
opportunities.
Company Background and Evolution
True Collaboration versus Videoconferencing
In 1991, Ezenia, known at the time as VideoServer, designed, developed,
manufactured, and sold Multipoint Control Systems or Units (MCS or MCU) for
both the circuit-oriented, Integrated Services Digital Network -based and
packet-switched, Internet Protocol -based videoconferencing applications. Our
MCS was unique at the time with its PC-based, flexible hardware design approach
and system configurations, leveraging commercial off-the-shelf base operating
systems. At that time, traditional
videoconferencing vendors concentrated mostly on the development of more and
more sophisticated, standard-based endpoints to be used in point-to-point
videoconferencing. We focused our
business, not on the endpoints, but on systems deployed in the infrastructure backroom,
to enable three or more sites or parties involved in videoconferencing to
properly communicate among themselves, by switching video sources based on
audio processing of current and immediately preceding speakers. Our technical
advantages were derived by masking and compensating for incompatibilities
between endpoints from different manufacturers, algorithmic transcoding,
compensation for different bandwidth requirements, and simultaneous
multi-windowed video arrangements on the monitor known as Hollywood Squares,
just to name a few.
In the late 1990s, we fully realized the limitations and narrow
applications of our videoconferencing products which, among many deficiencies,
are monolithic, require highly specialized support and services, stand apart
from the normal office environment that most information workers are accustomed
to, and do not provide a solution to the need to truly collaborate and
disseminate information in real time.
Contrary to how most videoconferencing vendors would like to indoctrinate
potential customers, video in particular talking heads as in the case of most
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video conferences was and is, now more than ever, far from being the piece
de resistance of true, meaningful real-time collaboration. Furthermore, its
monolithic approach, whereby you either get a successful videoconference
session or get nothing, relegates all other more critical collaboration
activities second to video talking heads.
Most importantly, the lack of presence awareness detection and the
inability to leverage the web for ease of access, prevent flexible, on-demand,
free-flowing collaboration sessions whereby participants can come, go, or be
invited at will.
In March 2001, we completed the first phase of our transformation
with the acquisition of the IWS business from General Dynamics. As an application solution and technology
built on top of Placewares (see Third-Party Technology below) web
conferencing technology, IWS:
·
Allows users to
be aware of the online presence of colleagues, enables true multimedia
collaboration sessions starting with the simplest instant messaging
(keyboard-to-keyboard) and expanding to the most complex all-encompassing
(mouse-to-mouse) sharing and dissemination of mission critical information
simultaneously with in-session, super-imposed audio conferencing and/or video
streaming;
·
Leverages
commercially off-the-shelf base operating systems such as the Windows and
Solaris platforms; and
·
Fits into the
virtual office environment with which most information workers are familiar.
The use and growth of
real-time collaborative technologies within commercial or governmental
enterprises, while still early in their adoption curve, are beginning to accelerate. The investment in information and
collaborative technologies helps customers flatten their organizations, improve
enterprise wide communication, shorten the decision-making process, and
facilitate real-time reactions to critical issues. Rather than just providing access to inert
data stored on a server, the goal today is to find ways to enable information
workers to collaborate and share their expertise to derive knowledge from
databases in real-time and in a secure environment. Collaborative technologies are about creating
informational value through better, faster and more efficient human interaction
and cooperation, not just more data.
Businesses and governmental organizations today need solutions that make
it easier for people to work together, share information and expertise,
coordinate activities across departments, networks, agencies, building
complexes, facilities spread all over the country, and field deployments around
the world.
We are moving forward
with this strategy and expect to introduce new improvements and products in the
future that are intended to broadly enhance our already comprehensive
capabilities. We intend to concentrate
on technical advancements that allow users to convey critical information that
must be delivered and that ensures security to our customers.
Products
Our expertise is in
developing products that deliver highly secure and flexible support for
informational collaboration, in-session audio conferencing, and video streaming
capabilities across a wide range of platforms.
Our products have been designed with a scaleable, modular architecture
to give customers the flexibility to add capacity, processing power, and
conferencing features as the customer network and application requirements
grow. Using a common set of hardware and software building blocks, customers
can choose from a wide range of product configurations that differ in capacity,
price, network connectivity and features, all of which share the same operating
software user interface. Products may be configured for use in customer
premises environments or may be configured with specialized packaging for use
in a telephone carriers central office setting. We believe a key
differentiator for our products is the built-in robust security features, which
allows them to be installed in some of the highest clearance and security sites
in the market.
InfoWorkSpace
IWS is a comprehensive
suite of collaboration applications designed to allow any organization to more
efficiently communicate, particularly when attempting to work as, and within, a
group. From an overall perspective, IWS,
when used effectively can reduce or even eliminate dependency on travel,
traditional video conferencing, traditional audio conferencing and the phone,
and even e-mail and file servers.
Essentially, IWS presents and
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enables a corporate
campus or enterprise whose resources can be accessed by an information worker
through his or her own desktop or laptop PC.
Users can browse through the virtual campus, facility, or building to
locate the room to be used for a meeting, or just pick the needed contact(s) and
initiate the meeting with the click of the mouse.
Our customers, including
the U.S. intelligence community, the U.S. Joint Forces Command, and various
branches of the U.S. Armed Forces including the Marines, Navy, Air Force and
Army, have leveraged the flexibility of IWS to aid in a myriad of
missions. From daily mission briefs to
medevac procedures in Afghanistan to operational support in Iraq, IWS has
increasingly become a vital part of the U.S. defense network. The stability, scalability and security of
IWS allow our customers to depend on our software to complete mission-critical
assignments and save lives in some of the worlds most dangerous areas.
At a basic level, IWS is
a cross-platform solution in a box, supporting both UNIX and Windows base
operating systems. A standard software suite comes complete with our server
software package, database, application server, and user directory along with a
number of ancillary add-ons. This suite provides a self-sufficient workgroup
environment for a user base of up to several hundred users. However, with a few
simple system configurations, IWS servers can be federated in such a way that
multiple servers can trust one another in order to support collaboration across
an enterprise with thousands of participants.
IWS
security infrastructure is built upon the best practices that have been in use
in operating systems for decades. Much
like a UNIX administrator can restrict access to a directory or even a file to
a limited set of users, IWS administrators can lock rooms down to prevent users
from seeing sensitive data that is outside their area of responsibility.
Permission-based access allows administrators to finely tune a users access
profile to the file level. Data can be
encrypted using standard SSL protocols and access can be controlled with PKI
and X.509 certificates. All data within
the application can be audited and searched for specific words or patterns of
words. IWS provides a high level of
security capabilities and a safety net to capture any breaches that may arise
from human errors.
The
stability, scalability, flexibility and security capabilities of IWS are
critically important for our customers, but the true power of IWS is in its
collaboration applications. Users can
participate in an interactive conference with absolutely no set up
procedures. This is a significant leap
forward from where the industry was just a few years ago, using
videoconferences as the only interactive medium. IWS eliminates the need to have a heavy piece
of hardware at each terminal point of collaboration, to schedule a conference
with a bridge operator, or to have a whole new network infrastructure to
support an interactive conferencing capability.
Information workers, once logged into IWS, can initiate a conference by
going to a virtual room and inviting the participants as needed. Rooms are either pre-defined or created on
demand as needs dictate. Once inside a room, either by joining or being invited
into a session, participants can have an audio conference straight from the
software. With IWS, no set up is required and no additional cost is
incurred. Participants even can be in
multiple rooms at the same time, offering a more productive virtual environment
than in the physical world. Participants can share and work on documents from
the file cabinet associated with a room. Users can have an interactive
whiteboard session and save the results. Users also can manage their calendars
and participate in message boards and save that information to the server where
they can access it at any time from any place.
A
high-level summary of IWS features and functions is listed below:
·
Text
chat, in a one-to-one arrangement, in a conference environment, or in multiple
combinations of one-on-one and/or conference environments;
·
Audio
chat, in a one-to-one arrangement, in a conference environment, or in multiple
combinations of one-on-one and/or conference environments;
·
Interactive
whiteboard which all users can see and modify in real time;
·
Application
sharing which allows the screen view of any application on any desktop or
laptop PC of any information worker to be broadcasted to all other
participants;
·
Secured
file cabinet, from which permission-based access allows for documents to be
stored, retrieved, and monitored at any time from any place;
·
EZinFORM,
a forms manager designed for an agency to document a task order where multiple
sites and people are deployed on a mission that requires rapid updates to
critical events;
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·
EZinCMD,
a unit commander can consolidate views and people into a critical command and
control battlefield situation for rapid response;
·
Multi-Level
security allows users of one security level to have real-time collaboration
sessions with users at another security level;
·
SSL
and PKI encryption, which, when configured, renders traffic secure across the
wire;
·
Full
system auditing, which allows all data and actions to be audited and
searchable;
·
Informal
meetings, a lightweight application that provides all interactive capabilities;
·
Virtual
campuses, buildings, offices and persistent meetings, a robust all encompassing
application that provides rich, secure scalable real-time collaborative
capabilities and recreates the office environment with facilities like file
cabinet, document storage and retrieval message board, calendaring, etc.; and
·
Virtual
auditorium-style meetings with geographically dispersed presenter panels and
large audiences, coupled with full function multimedia presentations and
recordings, including in-band audio, as well as seating control and assignment,
private sidebar discussions, moderator control, audience Q&A sessions, etc.
Market and Channels
We
market our IWS products and related services to customers within the U.S.
federal government, primarily to the DoD and to the intelligence community
worldwide. We also provide these products and services to the defense and
intelligence organizations of foreign allies of the U. S. government.
IWS
products and services are licensed on an annual subscription and renewal basis,
during which software updates and basic technical support are included as part
of base offerings. Enhanced service offerings are also offered in a
subscription model. Training, installation, and customization are sold on an as
needed basis.
The
worldwide government marketplace is best understood as a matrix of customers,
sales vehicles (contracts), and sales channels.
We employ a sales model which is an analog to this government market
matrix. IWS products and related services are available to specific segments of
the government, using various vehicles, including our GSA Schedule, and
multiple channels both directly, with our own sales force, and indirectly with
partners such as General Dynamics, Harris Corporation, Science and Applications
International Corporations, and Northrop Grumman, among others.
During
the year ended December 31, 2008, approximately 45% of our sales of IWS
and related services were through our indirect channels. Our top end-user customers
for IWS products and related services in 2008 were the Armed Forces, and
intelligence, and security agencies. Sales to these customers accounted for
approximately 36%, and 38%, respectively, of total revenue in 2008.
We conduct our sales and
marketing activities from our principal offices in Nashua, New Hampshire, and
Sterling, Virginia.
Research and Product Development
We believe that our future success depends on our ability to continue
to enhance and expand our existing enterprise collaboration products and to
develop new products that maintain our technology leadership. We have invested
and will continue to invest in the development of products and core
technologies while also leveraging the integration of best-of-breed software
components through strategic partnerships. Extensive product development input
is obtained via direct feedback from end users and suggested improvements from
strategic partners and resellers. We
carefully monitor the migration of industry standards and remain committed to
developing products utilizing such standards.
This includes the development of interoperable collaboration products to
meet either industry needs and/or DoD-driven interoperability criteria, while
maintaining a keen focus on the security aspects of enterprise collaboration,
including solutions in the web conferencing arena.
As of December 31, 2008, our research and development staff
consisted primarily of software engineers augmented with U.S.-based and
U.S.-citizen software contractors. Many of our software engineers carry either
secret or top-secret levels of security clearance. Our research and development
expenditures were approximately $2.1 million and $2.4 million in 2008 and 2007,
respectively, representing approximately 32% and 26% of revenue, respectively.
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We account for research and
development costs in accordance with several accounting pronouncements,
including Statement of Financial Accounting Standards (SFAS) No. 2,
Accounting for
Research and Development Costs,
and SFAS No. 86,
Accounting for the
Costs of Computer Software to be Sold, Leased, or Otherwise Marketed
.
SFAS No. 86 specifies that costs incurred internally in researching and
developing a computer software product should be charged to expense until
technological feasibility has been established for the product. Once
technological feasibility is established, all software costs should be
capitalized until the product is available for general release to
customers. During the quarter ended March 31,
2006, we released Version 3.0 of our InfoWorkSpace software product. In connection with this development effort, a
total of $140,000 was capitalized and amortized on a straight-line method over
the remaining estimated economic life of the product, which was determined to
be two years.
Judgment is required in
determining when technological feasibility of a product is established. In most
cases, we have determined that technological feasibility for our software
products/updates is reached shortly before the products are released to
production. Costs incurred after technological feasibility have historically
not been material, and accordingly, were expensed when incurred in these
instances
Customer Support and Service
We provide technical
support and services to our resellers and direct customers. A high level of
continuing service and support is critical to our objective of developing long-lasting
relationships with customers and partners. Our partners and resellers offer a
broad range of support including installation, maintenance and on-site and
headquarters-level technical support of products to their end-user customers.
We provide a comprehensive service program including problem management,
training, diagnostic tools, software updates and upgrades, as well as spare
parts programs to facilitate and supplement the efforts of our partners and
resellers.
We offer a technical
support hotline to our resellers and customers, which is staffed by our network
engineers who generally provide either immediate or same-day responses to most
questions. As our products have built-in remote diagnostic capabilities, most
problems can be diagnosed without incurring travel expenses for on-site visits.
When necessary, however, support engineers are dispatched to the customers
facility for critical situations. All of our support engineers carry various
levels of security clearance.
Third-Party Technology
We license technology from third-parties, including software which is
integrated with internally developed software, and used in our products to
perform key functions. There can be no
assurance that functionally similar technology will continue to be available on
commercially reasonable terms in the future, or at all. In particular, in April 2007 we entered
into a new agreement with Microsoft Corporation, with an effective date of January 1,
2007, to extend an existing software distribution license agreement through December 2008.
This agreement was subsequently amended to, among other things, extend the
payment terms through June 2011. The software distribution license
agreement allows us to integrate Microsofts Live Communication software into
our IWS product line.
Competition
The market for multimedia collaboration is an emerging segment with new
vendors entering the competitive landscape and old vendors from existing
industries. Furthermore, multimedia collaboration can also be grouped into two
main groups: real-time synchronous solutions versus asynchronous products. While most vendors adopt the client-server
architecture, some insist on the merit of peer-to-peer. Still yet, large
vendors offer both types of products. From another perspective, vendors could
be classified into two classes of providers:
The first group provides customer-premise solutions while the second
implements a hosted environment.
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Even though our business primarily focuses on the real-time
synchronous, client-server, customer-premise market segment within the
government, depending upon the possible perspectives, various vendors could be
considered as likely competitors, including Adobe, Cisco, EMC, IBM, Oracle,
etc., in this intensely contested market segment.
Many of these companies, as well as other current and potential
competitors, have substantially greater financial, technical, and sales and
marketing resources than us. If we are unable to retain our existing customers
in the U.S. government, or are unable to convince a sufficient number of new
companies or customers with an interest in collaborative technologies to adopt
our IWS collaborative software product over alternative technologies marketed
by our competitors, our financial results will suffer, through price reductions
and loss of market share.
The principal competitive factors in the market for multimedia
collaboration are security, scalability, reliability, price, performance,
network management capabilities, integration, breadth of capabilities, customer
support and interoperability. We plan to compete by offering the best-of-breed
enterprise solutions encompassing all of these factors. However, we cannot be certain that potential
customers will be attracted to our products, especially if our competitors
invest substantially more money into their products and technology.
Proprietary Rights
We rely on a combination of contractual rights, trade secrets and
copyright laws to establish and protect our intellectual property rights. We
believe that, because of the rapid pace of technological change in the data
communications and telecommunications industries, intellectual property
protection for our products is only one factor in our success, complementing
the knowledge, abilities and experience of our employees, the frequency of our
product enhancements, our relationships with our partners, our relationships
with our customers and their satisfaction with the performance of IWS, the
effectiveness of our marketing activities, and the responsiveness and quality
of our services.
Employees
At December 31, 2008, we employed 38 people on a full-time basis.
None of our employees is represented by a labor organization.
Our success depends, to a significant degree,
upon the continuing contributions of our key management, sales, marketing and
research and development personnel, many of whom would be difficult to replace,
including Khoa Nguyen, our Chief Executive Officer and President. We do not carry key-man life insurance on any
of our employees, including Mr. Nguyen.
We do not have employment contracts with our key personnel other than Mr. Nguyen.
We believe that our future success will depend in large part upon our ability
to attract additional key employees and retain our key employees.
Availability of Filings
You may access, free of
charge, through our website at www.ezenia.com, our Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any
amendments to such reports, all filed pursuant to Section 13(a) and
15(d) of the Securities Exchange Act of 1934, as amended (the Exchange
Act). The information contained on our web site is not incorporated by
reference into this document and should not be considered a part of this
report. Our web site address is included
in this document as an inactive textual reference only.
ITEM 1A. RISK FACTORS
The risks and uncertainties described below
are not the only ones that we face. Additional risks and uncertainties of which
we are unaware, or that we currently deem immaterial, also may become important
factors that affect our company in the future. If any of these risks were to
occur, our business, financial condition, or results of operations could be
materially and adversely affected. This section includes or refers to certain
forward-looking statements; you should read the explanation of the
qualifications and limitations on such forward-looking statements found in the
section captioned Managements Discussion and Analysis of Financial Condition
and Results of Operations.
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Recent adverse economic and market conditions may result in
further budgetary constraints within the defense and intelligence communities,
as well as a downturn in spending on real-time collaboration solutions by other
users, that could adversely affect our revenues and results of operations.
Unfavorable changes in
economic and market conditions, including inflation, recession, or other
changes, may result in further budgetary constraints on governmental users, and
lower spending by commercial, consumer and institutional users, of real-time
collaboration solutions. If demand for real-time collaboration products
declines significantly, or government or corporate spending for those products
declines, our business, results of operations, and financial condition would be
adversely affected. Challenging economic conditions also may impair the ability
of our customers to pay for products and services they have purchased. The
adverse effects of any sustained downturn in spending on our operating results
may be exacerbated by our investment in expanding our sales, service,
engineering, and marketing organizations, which may continue despite any such
downturn. There is no assurance that, if operations were to deteriorate and
additional financing were to become necessary, we would be able to obtain
financing in amounts sufficient to meet operating requirements or at terms
which are satisfactory and which allow us to remain competitive.
We may be unable to return to profitability
.
As further described under Managements Discussion
and Analysis of Financial Condition and Results of Operations, despite our net
loss in 2008, management believes that its existing cash and other resources
are sufficient to fund operations for at least the next 12 months. However, we can provide no assurances that we
will achieve our goal of consistent quarterly revenue and profit growth, both
of which are largely dependent on whether we can meet our future new order
bookings targets. If we are unable to secure new orders, we may not be able to
generate sufficient revenue and may not be able to return to profitability.
A significant portion of our revenue is attributable to a
small number of major customers,
none of whom is obligated to continue to use our products and services.
While we are focusing
efforts on broadening our customer base, sales to a relatively small number of
customers within the U.S. government, specifically within the DoD and the
intelligence community, have accounted for a significant portion of revenue. This concentration of customers may cause
revenue and operating results to fluctuate from quarter-to-quarter based on
major customers requirements, and the timing of their orders and shipments.
Our agreements with customers generally do not include minimum purchase
commitments or exclusivity arrangements.
Our operating results could be materially and adversely affected if any
present major customer were to reduce its level of orders, change to another
vendor, realize a reduction in approved funding for collaborative technologies,
or delay paying or fail to pay amounts due to us.
The
continued redirection of budget funds and increased competition within our
Department of Defense customer base would negatively impact our results of
operations and financial condition.
We believe our revenue has
declined due to the redirections of the IT budget by DISA to competing
solutions selected for the Net-Centric Enterprise Services (NCES) programs. We
believe that, while there are potential opportunities for limited recovery and
new sales in our existing DOD customer base, the redirection of budget funds
and the promotion of competing solutions by DISA will continue to result in the
reduction of renewals and elimination of new purchases of IWS by our customers,
thereby creating losses within our core business. Coupled with the currently
difficult economic conditions which lengthen the business development and sales
activities on the commercial segment, we anticipate continued downward pressure
on revenue and profitability for the foreseeable future.
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Loss of access to certain third-party
technology utilized in our products could materially harm our business.
We
utilize certain technology which we license from third parties, including
software which is integrated with internally developed software, and use in our
products to perform key functions. There
can be no assurance that functionally similar technology will continue to be
available on commercially reasonable terms in the future, or at all. In April 2007 we entered into a new
agreement with Microsoft Corporation to extend an existing software
distribution license agreement through December 2008. This agreement was
subsequently amended to, among other things, extend its payment terms through June 2011. This software distribution license agreement
allows us to integrate Microsofts Live Communication software with our
proprietary software, to create IWS.
Loss of access to this third-party technology could result in material
harm to our business and results of operations.
Our success depends upon market acceptance of our
collaboration products.
Sales of real-time
collaboration products account for substantially all of our revenue. As a
result, our success depends on the acceptance and the rate of adoption of
Internet-based collaboration products, in general, and our IWS product, in
particular. We can provide no assurance
that any of the markets for our products will develop to the extent, in the
manner, or at the rate anticipated by us.
In particular, while our sales have historically been within certain
organizations of the U.S. government and intelligence community, we are pursuing
the sale of our products in the commercial market as well. There can be no assurance of success in the
commercial market for IWS, or other products that we may introduce in 2009 or
beyond. In addition, future prices that we are able to obtain for our products
may decrease as a result of new product introductions by others, price
competition, technological change or other factors.
If we are unable to adapt to the rapid pace of change in our
market, our business could be adversely affected.
Our market is characterized
by changing technology, emerging industry standards, evolving network
developments and product introductions.
The adoption rate of new technologies and products may adversely impact
near-term growth of the conferencing market as users evaluate the alternatives.
For 2009 we plan to continue investments in the enhancement and development of
our current and new products to address the evolving technology landscape. Our success will depend, in part, upon our
ability through continued investments to maintain technological leadership, to
enhance our existing product offerings, and to develop new products that
achieve market acceptance.
Our results of operations would suffer if we are unable to
effectively compete in the market for multimedia collaboration products.
The market for multimedia
collaboration products is highly competitive. A number of companies have
introduced competitive products. Furthermore, the market may attract new
entrants. Some competitors have longer operating histories and greater
financial, technical, sales, and marketing resources. If we were unable to retain our existing
customers, or convince a sufficient number of new customers to adopt our
collaborative software products over competitive alternatives, our financial results
would suffer.
The principal competitive
factors in the market for multimedia collaboration are, and should continue to
be, breadth of capabilities, demonstrated interoperability, price, performance,
network management capabilities, reliability, scalability, customer support and
security. We plan to compete by offering
collaboration and enterprise products with a broad range of capabilities and
high performance. However, we cannot be
certain that potential customers will be attracted to our products, especially
if competitors were to invest substantially more money into their products and
technology.
10
Table
of Contents
If we
release products containing defects or experience delays in releasing new
products, our competitive position could be adversely effected.
As part of our strategy, we
expect to release new products and new versions of our existing products. Even if our new versions of existing products
contain the features and functionality that our customers desire, if we are
unable to timely introduce these new products or product releases, our
competitive position will be harmed. We
can provide no assurances that we will be able to successfully complete the
development of currently planned or future products or product releases in a
timely manner. Also, due to the
complexity of our products, internal quality assurance testing and customer
testing of pre-commercial releases may reveal product performance issues or
desirable product enhancements that could cause delays in development and
release of future products or current upgrades of our existing products.
The loss of or failure to retain or attract talented directors,
officers and personnel could harm our business.
Our success depends, to a
significant degree, upon the continuing contributions of our key management,
sales, marketing, and research and development personnel, some of whom would be
difficult to replace, including Khoa Nguyen, our Chief Executive Officer and
President.
We do not carry key-man life insurance on any
of our employees, including Mr. Nguyen.
We do not have
employment contracts with our key personnel other than Mr. Nguyen. We
believe that our future success will depend in large part upon our ability to
retain and attract such key employees.
Currently, we have five
directors on our Board of Directors, three of whom meet the standards for
independence as specified by the SEC and the national stock exchanges. Historically, we have strived to have an
audit committee comprised of at least three independent directors, as required
by the national stock exchanges. Currently,
we have two directors serving on our audit committee. We are continuing in our attempts to identify
additional qualified individuals to serve as independent directors. However, highly-qualified individuals may not
be available or willing to serve as directors and there can be no assurance
that we will be able to identify, recruit and ultimately secure the services of
such individuals in a timely manner or at all.
The trading price of our common
stock may continue to be volatile, which may adversely affect our business, and
investors in our common stock may experience substantial losses.
The market price of our
common stock, like that of other technology companies, is highly volatile and
is subject to wide fluctuations in response to quarterly variations in
operating results, or other events or factors. Our stock price may also be
affected by broader market trends unrelated to our performance. Due to this volatility, investors in our
common stock may experience substantial losses.
Our common stock is traded on the OTC Bulletin Board, making it a less liquid investment than if it were traded on a national securities exchange.
The shares of our common stock were delisted from The Nasdaq National Market in August 2003 and are now traded on the OTC Bulletin Board. As a result, an investor may find it more difficult to dispose of our stock due to low trading volume or obtain accurate quotations as to the market value of our stock. In addition, we are subject to Rule 15c2-11 promulgated by the SEC. If we fail to meet criteria set forth in such Rule (for example, by failing to file periodic reports as required by the Exchange Act), various practice requirements are imposed on broker-dealers who sell securities governed by the Rule to persons other than established customers and accredited investors. For these types of transactions, the broker-dealer must make a special suitability determination for the purchaser and have received the purchasers written consent to the transactions prior to sale. Consequently, the Rule may have a material adverse effect on the ability of broker-dealers to sell our securities, which may materially affect the ability of stockholders to sell the securities in the secondary market. The listing of our securities on the OTC Bulletin Board may make it more difficult for investors to trade in our securities, which could lead to further declines in our share price. Our shares being traded on the OTC Bulletin Board also makes it more difficult for us to raise additional capital, as we may incur additional costs under state blue-sky laws if we were to sell additional securities.
11
Table
of Contents
ITEM 1B. UNRESOLVED STAFF COMMENTS
There
are no unresolved staff comments as of the date of this report.
ITEM 2. DESCRIPTION OF PROPERTY
Our corporate office and
principal research, development and manufacturing facility is located in
Nashua, New Hampshire, in an approximately 12,000 square foot facility. We currently lease this facility pursuant to
a lease agreement that terminates in 2010. We also have a sales office located
in Sterling, Virginia, which we lease pursuant to a lease agreement that
terminates in 2010. During 2007, we
completed our consolidation of our Colorado Springs and Nashua facilities in
Nashua, New Hampshire. We currently lease office space in Colorado Springs
under an operating lease that terminates in November 2011. The Colorado facility is currently available
for sublease.
ITEM 3. LEGAL PROCEEDINGS
We are subject to various legal proceedings and claims that arise in
the ordinary course of business. We believe that the outcomes of these matters
will not materially and adversely affect our business, financial position or
financial results.
ITEM 4. SUBMISSION OF
MATTERS TO VOTE OF SECURITY HOLDERS
There were no matters submitted during the
fourth quarter of 2008 to a vote of security holders through solicitation of
proxies or otherwise.
12
Table of Contents
PART II
ITEM 5. MARKET FOR REGISTRANTS COMMON EQUITY,
RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY
SECURITIES
Since 2003, our
common stock has been quoted on the OTC Bulletin Board, under the symbol EZEN.OB. The following table sets forth, for the
periods indicated, the high and low bid or sale prices per share of our common
stock as reported on the OTC Bulletin Board.
|
|
Quarter ended
|
|
|
|
March 31
|
|
June 30
|
|
September 30
|
|
December 31
|
|
2008
|
|
|
|
|
|
|
|
|
|
Common stock price - high
|
|
$
|
0.75
|
|
$
|
0.65
|
|
$
|
0.47
|
|
$
|
0.35
|
|
Common stock price low
|
|
$
|
0.52
|
|
$
|
0.46
|
|
$
|
0.30
|
|
$
|
0.05
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
Common stock price - high
|
|
$
|
2.43
|
|
$
|
1.80
|
|
$
|
1.66
|
|
$
|
1.01
|
|
Common stock price low
|
|
$
|
1.61
|
|
$
|
1.10
|
|
$
|
0.85
|
|
$
|
0.66
|
|
As of March 16,
2009, we had approximately 112 stockholders of record. This does not reflect
persons or entities that hold their stock in nominee or street name through
various brokerage firms. We have not paid dividends on our common stock and we
anticipate that we will reinvest future earnings, if any, and therefore, do not
intend to pay dividends in the foreseeable future.
See Part III, Item
12 for information regarding securities authorized for issuance under our
equity compensation plans.
13
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial data should be read in conjunction
with Managements Discussion and Analysis of Financial Condition and Results
of Operations and our audited consolidated financial statements.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31,
|
|
(In thousands, except per share amounts)
|
|
2008
|
|
2007 (1)
|
|
2006 (2)
|
|
2005 (3)
|
|
2004(4)
|
|
OPERATING DATA
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
6,683
|
|
$
|
8,988
|
|
$
|
13,192
|
|
$
|
13,175
|
|
$
|
10,391
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
(3,126
|
)
|
(4,410
|
)
|
2,899
|
|
3,511
|
|
1,807
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income
taxes
|
|
(3,069
|
)
|
(3,836
|
)
|
3,405
|
|
3,712
|
|
1,757
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
(3,069
|
)
|
(4,547
|
)
|
3,918
|
|
3,803
|
|
3,184
|
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
(0.21
|
)
|
(0.31
|
)
|
0.27
|
|
0.26
|
|
0.23
|
|
Diluted
|
|
(0.21
|
)
|
(0.31
|
)
|
0.26
|
|
0.25
|
|
0.22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCE SHEET DATA
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
6,774
|
|
$
|
9,395
|
|
$
|
12,059
|
|
$
|
9,405
|
|
$
|
5,520
|
|
Total current assets
|
|
8,856
|
|
13,598
|
|
19,482
|
|
16,864
|
|
11,921
|
|
Stockholders equity (deficit)
|
|
5,420
|
|
7,773
|
|
11,901
|
|
7,932
|
|
3,838
|
|
(1) 2007
amounts include a charge of $1.45 million to reserve for excess purchase
commitments under the Microsoft license agreement, which was recorded as a
component of cost of product revenue, and income tax expense of $711,000
primarily related to an increase in the valuation allowance for deferred tax
assets recorded in 2006 and 2005.
(2) 2006
amounts include a tax benefit of $513,000 , or $0.04 per share, related to a
reduction in the valuation allowance associated with deferred tax assets of
approximately $579,000 offset by
approximately $66,000 of current federal
and state tax expense.
(3) 2005
amounts include a tax benefit of $91,000 , or $0.01per share, related to a
reduction in the valuation allowance associated with deferred tax assets.
(4) 2004
amounts include a tax benefit of $1.4 million, or $0.10 per share, related to a
net benefit of approximately $819,000 as
a result of the ITC settlement, and approximately $608,000 relating to a tax refund for tax years 1996,
1997, and 1998.
Quarterly financial information (unaudited)
|
|
Quarter ended
|
|
|
|
March 31
|
|
June 30
|
|
September 30
|
|
December 31
|
|
2008
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
1,811
|
|
$
|
1,739
|
|
$
|
1,745
|
|
$
|
1,388
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
1,122
|
|
1,063
|
|
1,076
|
|
847
|
|
Loss from operations
|
|
(587
|
)
|
(920
|
)
|
(747
|
)
|
(872
|
)
|
Net (loss)
|
|
$
|
(553
|
)
|
$
|
(883
|
)
|
$
|
(748
|
)
|
$
|
(885
|
)
|
Net (loss) per share:
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(0.04
|
)
|
$
|
(0.06
|
)
|
$
|
(0.05
|
)
|
$
|
(0.06
|
)
|
Diluted
|
|
$
|
(0.04
|
)
|
$
|
(0.06
|
)
|
$
|
(0.05
|
)
|
$
|
(0.06
|
)
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
2,668
|
|
$
|
2,479
|
|
$
|
2,022
|
|
$
|
1,819
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
1,478
|
|
1,355
|
|
(155
|
)
|
995
|
|
Income from operations
|
|
(133
|
)
|
(446
|
)
|
(2,252
|
)
|
(1,579
|
)
|
Net income (loss)
|
|
$
|
16
|
|
$
|
(266
|
)
|
$
|
(2,096
|
)
|
$
|
(2,201
|
)
|
Net (loss) per share:
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
|
|
$
|
(0.02
|
)
|
$
|
(0.14
|
)
|
$
|
(0.15
|
)
|
Diluted
|
|
$
|
|
|
$
|
(0.02
|
)
|
$
|
(0.14
|
)
|
$
|
(0.15
|
)
|
14
Table of
Contents
ITEM 7. MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Safe Harbor For Forward
Looking Statements
Managements Discussion and Analysis of
Financial Condition and Results of Operations (MD&A) should be read in
conjunction with the Consolidated Financial Statements and Notes included in
Item 8 of this Annual Report. MD&A contains forward-looking statements
and information which involve risks and uncertainties. Statements indicating that we expect, estimate,
believe, are planning, plan to, intend or will are forward-looking,
as are other statements
concerning
our business strategy, our proposed new product offerings, key differentiators
in our market, changes in the competitive landscape, future financial results,
our ability to generate cash and to meet our working capital needs, and other
events that have not yet occurred. These forward-looking statements are neither
promises nor guarantees, but involve risks and uncertainties that may cause
actual results to differ materially from those in the forward-looking
statements. Factors that may cause such differences include, but are not
limited to, the impact of global economic and political conditions on our
business, our ability to maintain or accurately forecast revenue growth, our
history of liquidity concerns and operating losses, customer acceptance of our IWS product and
other new products, our ability to compete in an intensely competitive market,
our ability to develop and introduce new products or enhancements on schedule
and that respond to customer requirements and rapid technological change, our
dependence on the U.S. government as our largest customer, budgetary
constraints within the defense and intelligence communities, our ability to
select and implement appropriate business models, plans and strategies and to
execute on them, our ability to identify, hire, train, motivate, and retain
highly qualified management/other key personnel and our ability to manage
changes and transitions in management/other key personnel, our reliance on
third-party technology, and unauthorized use or misappropriation of our
intellectual property, as well as the risk factors discussed in Item 1A of this
Annual Report and in other periodic reports filed with the SEC. Readers should not place undue reliance on
any such forward-looking statements, which speak only as of the date they are
made. We disclaim any obligation to publicly update or revise any such
statement to reflect any change in our expectations or in events, conditions,
or circumstances on which any such statements may be based, or that may affect
the likelihood that actual results will differ from those contained in the
forward-looking statements.
Overview
In 2008, revenue
was down 26% when compared to the year ended December 31, 2007. We experienced an operating loss of $3.1
million in 2008 compared to an operating loss of $4.4 million in 2007, and a
net loss of $3.1 million in 2008 compared to net loss of $4.5 million in 2007,
resulting in a loss of $0.21 per share in 2008, compared to a loss of $0.31 per
share in 2007. Revenue relating to our
IWS product decreased approximately 20% in 2008 compared to 2007. Gross profit increased 12% when compared to 2007
as a result of a charge in 2007 of $1.45 million to reserve for excess purchase
commitments with Microsoft. Operating expenses decreased $0.9 million to $7.2
million for 2008, as compared to $8.1 million for the year ended December 31,
2007. The decrease of our operating expenses in 2008 was a result of our
spending reductions in all areas of the company in response to declining
revenue. Our other income decreased by approximately $500,000 year over year as
we saw a decrease in our interest earned due to lower interest rates and a
lower average cash balance. In 2007, we had an income tax expense of $711,000
which reflected an increase in our deferred tax valuation allowance in
compliance with Statement of Financial Accounting Standards (SFAS) No. 109
Accounting for Income Taxes (SFAS No.109).
15
Table of Contents
In 2007 we entered into a new agreement with Microsoft to extend an
existing software distribution license agreement through December 2008. Under the agreement, we were required to
purchase a minimum of $1.7 million during 2007 and $2.75 million of licenses
during 2008, plus purchase an additional $0.5 million over the life of the two
year agreement. During 2007 we reviewed our forecast for license sales over the
balance of the agreement and recorded a charge of $1.45 million to reserve for
an excess purchase commitment. The charge
was recorded as a component of cost of product revenue during the year ended December 31,
2007.
In December 2008, the Microsoft agreement was amended to extend
the term through June 2011 and reduce the remaining purchase commitment to
$2.75 million, $154,000 of which was satisfied during 2008. The amended agreement requires that we make minimum payments of $1.0 million, $1.1
million and $0.5 million during 2009, 2010 and 2011, respectively. In addition to the remaining $2.6 million
license purchase commitment, we have approximately $670,000 of prepaid licenses on hand that have yet to
be deployed to customers. During 2008
we continued to experience a decline in
the volume of our customer license renewals.
As of December 31, 2008, the we reviewed our forecast for license
sales through the amended term (June 2011) and believe that the $1.45
million reserve remains the appropriate reserve for the excess purchase
commitment. The computation of the
excess purchase commitment reserve requires management to make certain assumptions
regarding future license renewals and sales growth. Actual results may differ materially from
managements estimates.
Although our revenue has declined as a result of the redirections of IT
budget by the Defense Information System Agency (DISA), coupled with the
currently difficult economic conditions which lengthen the business development
and sales activities on the commercial segment, our immediate focus is to
continue to enhance our existing various collaborative product and service
offerings and to develop and ultimately deploy the next generation of products
and services, via aggressive and concentrated sales, service, engineering, and
marketing efforts. We plan to continue to vigorously defend and endeavor to
protect our customer base within the military and intelligence community, while
pursuing new opportunities with various agencies and first responders dealing
with the threat of terrorism and natural disasters, as well as emerging
commercial applications. This focus is subject to change as the driving influence
in our future direction is based on the needs and requirements of our customer
base, both current and future, and may be adversely affected by current
economic and market conditions.
Critical Accounting Policies
The discussion and analysis of our financial
condition and results of operations are based upon our financial statements,
which have been prepared in accordance with accounting principles generally
accepted in the United States. The preparation of these financial statements
requires us to make estimates and judgments that affect the reported amounts of
assets, liabilities, revenue and expenses and related disclosure of contingent
assets and liabilities. On an on-going basis, we evaluate our estimates,
including those related to revenue recognition, bad debts, inventories, income
taxes and warranty obligations. We base our estimates on historical experience
and on various other assumptions that we believe to be reasonable under the
circumstances, the results of which form the basis for making judgments about
the carrying value of assets and liabilities that are not readily apparent from
other sources. Actual results may differ from these estimates under different
assumptions or conditions. We believe the following critical accounting policies
and the related judgments and estimates affect the preparation of our
consolidated financial statements.
Revenue
Recognition
Product revenue consists of sales of IWS software
licenses and maintenance agreements, IWS product related training, installation,
and consulting, and video products.
Revenue from sales of IWS software license and maintenance agreements is
recognized ratably over the subscription software license contract periods, which are generally one year,
pursuant to the guidance provided by Statement of Position (SOP) 97-2,
Software Revenue Recognition
(SOP 97-2), issued by the
American Institute of Certified Public Accountants (AICPA). Revenue from IWS training, installation, and
consulting services are recognized as the services are performed provided there
is vendor specific objective evidence of fair value which is the price charged
when the services are sold separately.
16
Table of Contents
Product development revenue relates to contracts
involving customization of the IWS product according to a customers
specifications. We account for product
development revenue in conformity with the guidance provided by SOP 81-1,
Accounting For Performance of Construction Type and Certain Production
Type Contracts
issued by the AICPA.
When reliable estimates are available for the costs and efforts
necessary to complete the product development and the contract does not include
contractual milestones or other acceptance criteria, product development
revenue is recognized under the percentage-of-completion contract method based
upon input measures, such as hours. When
such estimates are not available, we defer all revenue recognition until we
have completed the contract and have no further obligations to the
customer. Revenue associated with
contracts for product development revenue with milestone-based deliverables
requiring a customers acceptance is recognized upon the customers acceptance
in accordance with the terms of the contract.
The associated cost recognition with these deliverables or milestones is
deferred until the terms of acceptance are satisfied and revenue is recognized.
Certain of our product development contracts are subject to government audit
and retroactive adjustment of the direct and indirect costs used to determine
the contract billings. Product
development revenue and accounts receivable reported in the financial
statements are recorded at the amount expected to be received. Product development revenue is adjusted to
actual upon final audit and retroactive adjustment. Estimated contractual allowances are provided
based on managements evaluation of current contract terms.
Products and software licenses are sold without any
contractual right of return by the customer.
Deferred revenue represents amounts received from customers under
subscription software licenses, maintenance agreements, or for product sales in
advance of revenue recognition. Judgments are required in evaluating the
creditworthiness of our customers. In
all instances, revenue is not recognized until we have determined, at the
outset of the arrangement that collectability is reasonably assured. Amounts billed to customers related to
shipping and handling charges are recorded upon shipment and the related costs
are included in cost of goods sold.
Allowance
for Doubtful Accounts
Our policy is to maintain allowances for estimated
losses resulting from the inability of our customers to make required payments.
Credit limits are established through a process of reviewing the financial
history and stability of each customer. Where appropriate, we obtain credit
rating reports and financial statements of the customer when determining or
modifying their credit limits. We regularly evaluate the collectability of our
trade receivable balances based on a combination of factors. When a customers
account balance becomes past due, we initiate dialogue with the customer to
determine the cause. If it is determined that the customer will be unable to
meet its financial obligation to us, such as in the case of a bankruptcy
filing, deterioration in the customers operating results or financial
position, or other material events impacting the customers business, we record
a specific allowance to reduce the related receivable to the amount we expect
to recover given all information presently available.
At December 31, 2008, our accounts receivable
balance of approximately $0.8 million is reported net of allowances of
approximately $28,000. We believe our reported allowances are adequate. If the
financial conditions of our customers were to deteriorate, however, resulting
in their inability to make payments, we may need to record additional allowances,
which would result in additional expenses being recorded for the period in
which such determination was made.
Accounting for Share-Based
Compensation
We have stock option plans
that provide for the purchase of our common stock by certain of our employees
and directors. Effective January 1, 2006, we adopted SFAS No. 123R,
Share-Based Payment,
and began recognizing
compensation expense for our share-based payments based on the fair value of
the awards. Share-based payments include stock option grants under our stock
option plans.
17
Table of Contents
The
determination of the fair value of share-based payment awards on the date of grant
include the expected life of the award, the expected stock price volatility
over the expected life of the awards, expected dividend yield, and risk-free
interest rate. Expected volatilities are based on historical volatility of our
common stock. We base the expected term
of the options on our historical option exercise data with a minimum life
expectancy equal to the vesting period of the option. We base the risk-free interest rate on the
U.S. Treasury yield in effect at the time of the grant for a term closest to
the expected life of the options. Expected dividend yield is not considered as
we have not made any dividend payments and have no plans of doing so in the
foreseeable future. Forfeitures are estimated based upon our historical
experience. This estimate is adjusted periodically based on the extent to which
actual forfeitures differ, or are expected to differ, from the previous
estimate.
We recorded $703,000 and
$475,000 of share based compensation expense in 2008 and 2007, respectively.
Income
Taxes
The calculation of tax assets and liabilities
involves significant judgment in estimating the impact of uncertainties in the
application of complex tax laws.
Deferred tax assets and liabilities are determined at the end of each
year based on the future tax consequences that can be attributed to net
operating loss and credit carryovers as well as the differences between the
financial statement carrying amounts of existing assets and liabilities and
their respective tax bases. The deferred
tax assets are reduced by a valuation allowance if it is more likely than not
that the tax benefits will not be realized.
The realization of deferred tax assets is dependant upon the generation
of future taxable income. In determining
the valuation allowance, we consider past performance, expected future taxable
income, and qualitative factors when estimating future taxable income. Our forecast of expected future taxable
income is for future periods that can be reasonably estimated. Changes in results that differ materially
from our current expectations may cause us to change our judgment on future
taxable income. These changes, if any, may require us to adjust our existing
tax valuation allowance higher or lower than the amount we have previously
recorded.
Based upon our assessment of current and future
taxable income, and our analysis of the future tax consequences attributable to
net operating loss and credit carryovers at December 31, 2006 and 2005, we
released approximately $579,000 and $138,000 of valuation allowance against
deferred tax assets in 2006 and 2005, respectively, resulting in a net deferred
tax asset of approximately $717,000 as of December 31, 2006.
As of December 31, 2007, we concluded that the
actual realization of the net deferred
tax asset balance of $717,000 was in question due to the loss in 2007 and the
uncertainty of future taxable income. We
therefore provided a full reserve against the deferred tax assets in 2007,
which has remained unchanged as of December 31, 2008.
Results
of Operations Years Ended December 31, 2008 and 2007
Revenue
Revenue declined 26% in 2008 to approximately $6.7 million
when compared to 2007. Product revenue related to IWS declined approximately
$1.7 million or 20%, while product development revenue declined by
approximately $638,000 as only one new small contract was awarded to us in
2008. Product development revenue is revenue related to product customization
work performed for customers seeking enhancements to our current product. The decline in license revenue in 2008 was
the result of a shortfall in license renewals primarily due to DISA (Defense
Information Systems Agency) and the second NCES (Net-Centric Enterprise
Services) contract award to our competitor, which resulted in a number of our
existing customers not renewing their licenses and/or reducing the number of
licenses used. We believe that if we successfully execute on our strategy, we
will be able to compensate for this decline in license renewals by the
introduction of our product to new customers.
18
Table of Contents
Gross profit
Cost of revenue includes material costs, costs of
third-party software licenses, direct labor and overhead, customer support
costs, and engineering and development costs associated with sponsored and
customized product development revenue. Gross profit as a percentage of revenue
increased in 2008 to 61.5%, from 40.9% in 2007. The increase in gross profit is
primarily attributed to a charge in 2007 of $1.45 million to reserve for excess
purchase commitments under the Microsoft license agreement as well as an
increase in gross margin in 2008 related to product development work. The $1.45
million charge was recorded as a component of cost of product revenue during
2007. Development revenue for 2008 includes $67,000 related to the completion
of reviews of our development projects from 2004 to 2007, and the release of
associated revenue reserves. This revenue has no corresponding cost and
contributes to a higher margin overall in 2008.
Research
and development
Research
and development expenses include payroll, employee benefits, other
headcount-related costs, and miscellaneous costs associated with product
development. Research and development expenses decreased to approximately $2.1
million in the year ended December 31, 2008, from approximately $2.4
million in 2007. This decrease is primarily attributable to a reduction of
employees, supply and consulting costs.
Sales
and marketing
Sales
and marketing expenses include payroll, employee benefits, and other
headcount-related costs associated with sales and marketing personnel along
with expenses pertaining to advertising, tradeshows, seminars, and other
marketing-related programs. Sales and
marketing expenses of approximately $2.0 million in 2008 remained consistent
from those in the year ended December 31, 2007.
General
and administrative
General
and administrative costs include payroll, employee benefits, and other
headcount-related costs associated with the finance, human resources,
management information systems, and other administrative headcount, and legal
and investor relations costs, and other administrative fees. General and administrative expenses decreased
14% to approximately $2.4 million in the year ended December 31, 2008,
from approximately $2.8 million in 2007.
The decrease is primarily related to decreases in headcount related
costs and legal and professional expenses offset by increases in share-based
compensation expenses. During 2007, we
also initiated an unsuccessful bid-protest action against the U.S. Department
of the Army with regard to the second NCES contract. We incurred legal fees related to this
action, which were not repeated in 2008.
Occupancy
and other facilities-related expenses
Occupancy
and other facilities-related expenses decreased 36% to approximately $317,000
in the year ended December 31, 2008, from approximately $493,000 in 2007.
These costs include rent expense and other operating costs associated with our
headquarters in Nashua, New Hampshire, and our sales offices in Sterling,
Virginia. This decrease is primarily due to the consolidation of the Colorado
office with the New Hampshire office.
Restructuring charge
We recorded a $215,000 charge to operations in 2007 in recognition of
our consolidation of our Colorado Springs and Nashua facilities in Nashua, New
Hampshire, which was completed in December 2007. An additional
restructuring charge of $219,000 was recorded in 2008, as we have experienced
delays in finding a subtenant for the Colorado facility. The charge represents
the estimated future costs of the lease pertaining to the Colorado Springs
facility, net of expected sublease proceeds.
Interest
income
Interest
income consists of interest on cash and cash equivalents. Interest income decreased to approximately
$155,000 in 2008 from approximately $545,000 in 2007. The decrease in 2008 was
primarily related to a decrease in the interest rates and a reduced cash
balance.
19
Table of Contents
Other income
Other
income consists primarily of gains and losses related to short term mutual fund
investments. In 2008, we incurred a decline in the market value of our short
term investments of approximately $98,000 from a gain of approximately $29,000
in 2007.
Income tax benefit
Due to
the uncertainty of future taxable income, we have not recorded an income tax
benefit for the losses incurred in 2008 and 2007. In 2007, we recorded an
income tax provision of $717,000 related to the increase in the valuation
allowance for deferred tax assets that were recorded in 2006 and 2005.
Liquidity and Capital Resources
At December 31,
2008, we had cash and cash equivalents of approximately $6.8 million.
We
incurred a loss from operations of approximately $3.1 million for the year
ended December 31, 2008, and a net loss for the year of approximately $3.1
million, as compared with an operating loss in 2007 of approximately $4.4
million, and a net loss of approximately $4.5 million in 2007.
We used cash for operations of
$2.6 million in fiscal year 2008 compared to expending cash of $2.3 million in
2007. Cash expended for operating activities in 2008 was primarily the result
of a net loss and a decline in deferred revenue, offset by a decrease in
accounts receivable and non-cash items such as depreciation, and share-based
compensation. Cash used by operating activities in 2007 was primarily the
result of a net loss and a decline in deferred revenue offset by decreases in
accounts receivable and prepaid software licenses, and non-cash items such as
depreciation, amortization of capitalized software and share based
compensation.
We invested approximately $45,000
in property and equipment in fiscal 2008 compared to $266,000 in fiscal 2007.
We generated cash from financing activities of $13,000 in 2008 as compared to
$28,000 in 2007 primarily from proceeds of sales of our common stock pursuant
to our various stock plans. In November 2007,
we implemented the first stock repurchase under the stock repurchase program
authorized by our Board of Directors.
The amount spent on the repurchases in 2007 was $84,000. There were no
stock repurchases in 2008.
We
lease our primary facility in Nashua, New Hampshire, under an operating lease,
which expires in June 2010. In July 2007, we signed an additional
lease for 6,000 square feet adjacent to our existing rented space in Nashua,
New Hampshire. This lease will expire in
August 2010. We also have leased office space, located in Sterling,
Virginia which expires in 2010. Future
minimum lease obligations at December 31, 2008, under all of these
non-cancelable operating leases are $120,000 in 2009 and $64,000 in 2010.
In
September 2007, we announced our plan to consolidate our Colorado Springs
and Nashua facilities in Nashua, New Hampshire by the end of 2007. We recorded a restructuring charge of
$215,000 to cover the expected lease payments of the Colorado Springs facility,
net of expected proceeds. In 2008 we reassessed our exposure in consideration
of the current real estate market and interest in the space to-date by
potential subtenants. Based on the
resulting conclusions, we recorded an additional restructuring charge of
$219,000 was taken in 2008. The space is leased by us through November 2011
and is currently available for subleasing. We estimate that we will have to pay
$287,000, net of expected sublease income, over the remaining lease term. Our
gross remaining obligation on the lease, including estimated operating
expenses, is approximately $453,000.
In April 2007, we entered into a new agreement with Microsoft to
extend an existing software distribution license agreement through December 2008. Under the agreement, we are required to
purchase a minimum of $1.7 million and $2.75 million of licenses during 2007
and 2008 respectively, plus purchase an additional $0.5 million over the life
of the two year agreement. During 2007 we reviewed our forecast for license
sales over the balance of the agreement and recorded a charge of $1.45 million
to reserve for an excess purchase commitment.
The charge was recorded as a component of cost of product revenue during
the year ended December 31, 2007.
20
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Contents
In December 2008, the Microsoft agreement was amended to extend
the term through June 2011 and reduce the remaining purchase commitment to
$2.75 million, $154,000 of which was satisfied during 2008. The amended agreement requires that we make
minimum payments of $1.0 million, $1.1 million and $0.5 million during 2009,
2010 and 2011, respectively. In addition
to the remaining $2.6 million license purchase commitment, we have
approximately $670,000 of prepaid licenses on hand that have yet to be deployed
to customers. During 2008 we continued
to experience a decline in the volume of our customer license renewals. As of December 31, 2008, we reviewed our
forecast for license sales through the amended term (June 2011) and
believe that the $1.45 million reserve remains the appropriate reserve for the
excess purchase commitment. The
computation of the excess purchase commitment reserve requires management to
make certain assumptions regarding future license renewals and sales
growth. Actual results may differ
materially from managements estimates.
We include standard
intellectual property indemnification provisions in our licensing agreements in
the ordinary course of business. Pursuant to our product license agreements, we
will indemnify, hold harmless, and agree to reimburse the indemnified party for
losses suffered or incurred by the indemnified party, generally business
partners or customers, in connection with certain patent, copyright or other
intellectual property infringement claims by third parties with respect to our
products. Other agreements with our customers provide indemnification for
claims relating to property damage or personal injury resulting from the
performance of services by us or our subcontractors. Historically, our costs to
defend lawsuits or settle claims relating to such indemnity agreements have
been insignificant. Accordingly, the estimated fair value of these
indemnification provisions is immaterial.
In May 2003, after failing to comply with certain
continued listing standards for the NASDAQ SmallCap Market, including
maintaining a minimum bid price of at least $1.00 per share, or the requirement
to have a minimum of $2.5 million in stockholders equity, we received a
delisting notification from NASDAQ.
After exercising our right for an appeal of this determination to a
NASDAQ Listing Qualifications Panel, the Panel determined to delist our
securities from The NASDAQ Stock Market in August 2003. Since then, our
common stock has been quoted on the OTC Bulletin Board. The market value and liquidity of our common
stock, as well as our ability to raise additional capital, has been and may
continue to be materially adversely affected by this delisting decision.
Operating costs are continually under review and adjusted
accordingly. With the decline in revenue in 2008, we took the necessary steps
to reduce spending to the appropriate levels.
We are committed to continue making the necessary improvements to our
infrastructure in 2009 which we believe is necessary in order to compete
successfully in the ever-increasingly competitive collaborative software market.
Order bookings, which are purchase orders placed by
customers, are not recorded as revenue or recognized as revenue until all
requirements of that order are satisfied, although the cash flow received from
these orders may more closely follow the receipt date of the order. Accordingly, management believes that its
existing cash resources will be sufficient to fund its anticipated working
capital and capital expenditure needs for at least the next twelve months.
The
following table summarizes our outstanding contractual obligations:
(in thousands)
|
|
2009
|
|
2010
|
|
2011
|
|
Total
|
|
Operating leases
|
|
$
|
217
|
|
$
|
153
|
|
$
|
98
|
|
$
|
468
|
|
|
|
|
|
|
|
|
|
|
|
Microsoft License Agreement
|
|
1,040
|
|
1,080
|
|
476
|
|
2,596
|
|
|
|
|
|
|
|
|
|
|
|
Total contractual obligations
|
|
$
|
1,257
|
|
$
|
1,233
|
|
$
|
574
|
|
$
|
3,064
|
|
We estimate
sublease rental for the property in the amount of $20,000 in 2009, $48,000 in
2010 and $44,000 in 2011.
21
Table of Contents
Recent Accounting pronouncements
We
adopted the provisions of Financial Accounting Standards Board (FASB)
Interpretation No. 48, Accounting for Uncertainty in Income Taxes (FIN
48) an interpretation of SFAS 109 on January 1, 2007. We have determined that the realization of
$2.0 million in federal tax credits is in doubt. As a result of the implementation of FIN 48,
we would have recognized a $2.0 million increase in the liability for
unrecognized tax benefits had we recognized any benefit associated with the
credits in prior periods. However, due
to past net operating losses, no benefit has been recognized; accordingly, no
liability has been recognized. As a
result, at the adoption date of FIN 48, January 1, 2007 and also at December 31,
2007 and December 31, 2008 we had no unrecognized tax benefits.
At
December 31, 2008, we had federal and state net operating loss (NOL)
carryforwards of $64.5 million and $14.1 million, respectively, expiring at
various dates through 2028. Utilization of the NOL carryforwards may be subject
to a substantial annual limitation due to ownership change limitations that
have occurred previously or that could occur in the future provided by Section 382
of the Internal Revenue Code of 1986, as well as similar state provisions.
These ownership changes may limit the amount of NOL that can be utilized
annually to offset future taxable income and tax, respectively. In general, an
ownership change, as defined by Section 382, results from transactions
increasing the ownership of certain stockholders or public groups in the stock
of a corporation by more than 50 percentage points over a three-year period.
Since our formation, we have raised capital through the issuance of capital
stock on several occasions which, combined with the purchasing stockholders
subsequent disposition of those shares, may have resulted in a change of
control, as defined by Section 382, or could result in a change of control
in the future upon subsequent disposition. We have not currently completed a
study to assess whether a change of control has occurred or whether there have
been multiple changes of control since our formation due to the significant
complexity and cost associated with such study and due to the possibility of additional
changes in control in the future. If we have experienced a change of control at
any time since our formation, utilization of our NOL carryforwards would be
subject to an annual limitation under Section 382. Further, until a study
is completed and any limitation known, no amounts are being presented as an
uncertain tax position under FIN 48.
We
recognize interest and penalties related to uncertain tax positions in income
tax expense. As of December 31,
2008, we had no accrued interest or penalties related to uncertain tax
positions.
The
tax years 2004 through 2007 remain open to examination by the major taxing
jurisdictions to which we are subject. The Internal Revenue Service completed
an audit of our consolidated federal income tax return for the 2005 tax year
with no adjustments.
In
September 2006, the FASB issued SFAS No. 157,
Fair Value
Measurements
(SFAS No. 157). SFAS No. 157
defines fair value, establishes a framework for measuring fair value and
expands fair value measurement disclosures. In February 2008, the FASB
issued FASB Staff Position (FSP) FAS 157-1,
Application
of FASB Statement No. 157 to FASB Statement No. 13 and Other
Accounting Pronouncements That Address Fair Value Measurements for Purposes of
Lease Classification or Measurement under Statement 13
and FSP
FAS 157-2,
Effective Date of FASB Statement No. 157.
Collectively, the FSPs defer the effective date of SFAS 157 to fiscal years
beginning after November 15, 2008 for nonfinancial assets and nonfinancial
liabilities except for items that are recognized or disclosed at fair value on
a recurring basis at least annually, and amend the scope of SFAS 157. We
adopted SFAS 157 in 2008 except for those items specifically deferred under FSP
FAS 157-2. We are currently evaluating the impact of the full adoption of
SFAS 157 on our consolidated financial statements.
In
December 2007, the FASB issued SFAS No. 141R,
Business
Combinations
(SFAS No. 141R). SFAS No. 141R
expands the scope of acquisition accounting to all transactions under which
control of a business is obtained. Principally, SFAS No. 141R
requires that contingent consideration as well as contingent assets and
liabilities be recorded at fair value on the acquisition date and that certain
transaction and restructuring costs be expensed. SFAS No. 141R is
effective for fiscal years beginning after December 15, 2008. As
application of this statement is prospective and applicable to business
combinations that occur after its effective date, we do not anticipate that
SFAS No. 141R will have a material, if any, impact on our consolidated
financial position and results of operations.
22
Table of Contents
ITEM 7A. QUANTITATIVE AND
QUALITATIVE DISCLOSURES ABOUT MARKET RISK
To
date, we have not utilized derivative financial instruments or derivative
commodity instruments. We invest cash in highly liquid investments, consisting
of highly rated U.S. and state government securities, commercial paper and
short-term money market funds. These investments are subject to minimal credit
and market risk and we have no debt other than our contractual lease
obligations. A 10% change in interest rates would not have a material impact on
our financial position, operating results or cash flows. We have closed our
foreign offices, and sales to foreign customers from the United States are in
U.S. dollars. Therefore, we have no
significant foreign currency risk.
ITEM 8. FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
INDEX
23
Table
of Contents
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING
FIRM
The Board of
Directors and Stockholders of
Ezenia! Inc.:
We have audited
the accompanying consolidated balance sheets of Ezenia! Inc. and subsidiaries
as of December 31, 2008 and 2007 and the related consolidated statements
of operations, stockholders equity and cash flows for the years then
ended. Our audits also included the
financial statement schedule listed in the accompanying index at Item 15. These financial statements and schedule are
the responsibility of the Companys management. Our responsibility is to
express an opinion on these financial statements and schedule based on our
audits.
We conducted our
audits in accordance with the auditing standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we
plan and perform the audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. The Company is not
required to have, nor were we engaged to perform, an audit of its internal
controls over financial reporting. Our
audits included consideration of internal control over financial reporting as a
basis for designing audit procedures that are appropriate in the circumstances,
but not for the purpose of expressing an opinion on the effectiveness of the
Companys internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion,
the consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Ezenia! Inc. and
subsidiaries as of December 31, 2008 and 2007 and the consolidated results
of their operations and their cash flows for the years then ended in conformity
with accounting principles generally accepted in the United States of
America. Also, in our opinion, the
related financial statement schedule, when considered in relation to the basic
consolidated financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
/s/
VITALE, CATURANO & COMPANY, P.C.
Boston,
Massachusetts
March 23,
2009
24
Table of
Contents
Consolidated Balance Sheets
(In thousands,
except for share and per share related data)
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
Assets
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
6,774
|
|
$
|
9,395
|
|
Accounts receivable, less allowances of $28 at
December 31, 2008 and $413 at December 31, 2007
|
|
771
|
|
2,479
|
|
Prepaid software licenses
|
|
1,125
|
|
1,417
|
|
Prepaid expenses and other current assets
|
|
186
|
|
292
|
|
Total current assets
|
|
8,856
|
|
13,583
|
|
Deposits
|
|
15
|
|
15
|
|
Prepaid licenses, net of current portion
|
|
|
|
169
|
|
Capitalized software, net
|
|
|
|
18
|
|
Equipment and improvements, net
|
|
243
|
|
380
|
|
Total assets
|
|
$
|
9,114
|
|
$
|
14,165
|
|
|
|
|
|
|
|
Liabilities and stockholders equity
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
Accounts payable
|
|
$
|
257
|
|
$
|
497
|
|
Accrued expenses
|
|
1,674
|
|
1,885
|
|
Employee compensation and benefits
|
|
150
|
|
266
|
|
Accrued restructuring charges
|
|
287
|
|
215
|
|
Deferred revenue
|
|
1,326
|
|
3,512
|
|
Total current liabilities
|
|
3,694
|
|
6,375
|
|
Deferred revenue, net of current portion
|
|
|
|
17
|
|
|
|
|
|
|
|
Commitments and contingencies (Note 5)
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
Preferred stock, $.01 par value; 2,000,000 shares
authorized; none issued and outstanding
|
|
|
|
|
|
Common stock, $.01 par value; 40,000,000 shares
authorized; 15,417,754 issued and 14,658,217 outstanding in 2008; 15,360,629
issued and 14,601,092 outstanding in 2007
|
|
154
|
|
154
|
|
Capital in excess of par value
|
|
65,586
|
|
64,870
|
|
Accumulated deficit
|
|
(57,375
|
)
|
(54,306
|
)
|
Treasury stock; 759,537 shares at cost in 2008 and
2007
|
|
(2,945
|
)
|
(2,945
|
)
|
|
|
5,420
|
|
7,773
|
|
Total liabilities and stockholders equity
|
|
$
|
9,114
|
|
$
|
14,165
|
|
See accompanying notes.
25
Table
of Contents
Consolidated Statements of Operations
(In thousands,
except for share and per share related data)
|
|
Year ended December 31,
|
|
|
|
2008
|
|
2007
|
|
Revenue
|
|
|
|
|
|
Product revenue
|
|
$
|
6,570
|
|
$
|
8,232
|
|
Product development revenue
|
|
113
|
|
751
|
|
Service revenue
|
|
|
|
5
|
|
|
|
6,683
|
|
8,988
|
|
Costs of revenue
|
|
|
|
|
|
Cost of product revenue
|
|
2,556
|
|
4,746
|
|
Cost of product development
revenue
|
|
19
|
|
569
|
|
Cost of service revenue
|
|
|
|
|
|
|
|
2,575
|
|
5,315
|
|
Gross profit
|
|
4,108
|
|
3,673
|
|
|
|
|
|
|
|
Operating expenses
|
|
|
|
|
|
Research and development
|
|
2,084
|
|
2,361
|
|
Sales and marketing
|
|
2,024
|
|
2,021
|
|
General and administrative
|
|
2,408
|
|
2,802
|
|
Depreciation
|
|
182
|
|
191
|
|
Occupancy and other facilities
related expenses
|
|
317
|
|
493
|
|
Restructuring charge
|
|
219
|
|
215
|
|
Total operating expenses
|
|
7,234
|
|
8,083
|
|
Loss from operations
|
|
(3,126
|
)
|
(4,410
|
)
|
|
|
|
|
|
|
Other income (expense)
|
|
|
|
|
|
Interest income
|
|
155
|
|
545
|
|
Other
|
|
(98
|
)
|
29
|
|
|
|
57
|
|
574
|
|
Loss before income taxes
|
|
(3,069
|
)
|
(3,836
|
)
|
Provision for income taxes
|
|
|
|
711
|
|
Net loss
|
|
$
|
(3,069
|
)
|
$
|
(4,547
|
)
|
Basic and diluted loss per
share:
|
|
|
|
|
|
Basic
|
|
$
|
(0.21
|
)
|
$
|
(0.31
|
)
|
Diluted
|
|
$
|
(0.21
|
)
|
$
|
(0.31
|
)
|
Weighted average common shares:
|
|
|
|
|
|
Basic
|
|
14,646,006
|
|
14,672,808
|
|
Diluted
|
|
14,646,006
|
|
14,672,808
|
|
See accompanying notes.
26
Table of
Contents
Consolidated Statements of
Stockholders Equity
(In thousands, except for share related data)
|
|
|
|
|
|
Capital
|
|
|
|
|
|
Total
|
|
|
|
Common Stock
|
|
in Excess of
|
|
Accumulated
|
|
Treasury
|
|
Stockholders
|
|
|
|
Shares
|
|
Par Value
|
|
Par Value
|
|
Deficit
|
|
Stock
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES AS OF DECEMBER 31,
2006
|
|
14,650,737
|
|
$
|
153
|
|
$
|
64,368
|
|
$
|
(49,759
|
)
|
$
|
(2,861
|
)
|
$
|
11,901
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued under employee
benefit plans
|
|
49,455
|
|
1
|
|
27
|
|
|
|
|
|
28
|
|
Treasury stock purchase
|
|
(99,100
|
)
|
|
|
|
|
|
|
(84
|
)
|
(84
|
)
|
Stock based compensation
expense
|
|
|
|
|
|
475
|
|
|
|
|
|
475
|
|
Net loss
|
|
|
|
|
|
|
|
(4,547
|
)
|
|
|
(4,547
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES AS OF DECEMBER 31,
2007
|
|
14,601,092
|
|
154
|
|
64,870
|
|
(54,306
|
)
|
(2,945
|
)
|
7,773
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock issued under employee
benefit plans
|
|
57,125
|
|
|
|
13
|
|
|
|
|
|
13
|
|
Stock based compensation
expense
|
|
|
|
|
|
703
|
|
|
|
|
|
703
|
|
Net loss
|
|
|
|
|
|
|
|
(3,069
|
)
|
|
|
(3,069
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES AS OF DECEMBER 31,
2008
|
|
14,658,217
|
|
$
|
154
|
|
$
|
65,586
|
|
$
|
(57,375
|
)
|
$
|
(2,945
|
)
|
$
|
5,420
|
|
See accompanying notes.
27
Table
of Contents
Consolidated Statements of Cash
Flows
(In thousands)
|
|
Year ended December 31,
|
|
|
|
2008
|
|
2007
|
|
Operating activities
|
|
|
|
|
|
Net loss
|
|
$
|
(3,069
|
)
|
$
|
(4,547
|
)
|
Adjustments to reconcile net loss to net cash used
for operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
182
|
|
191
|
|
Amortization of capitalized software
|
|
18
|
|
70
|
|
Share-based compensation
|
|
703
|
|
475
|
|
Deferred taxes
|
|
|
|
717
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
Accounts receivable
|
|
1,708
|
|
1,101
|
|
Prepaid software licenses
|
|
461
|
|
1,760
|
|
Prepaid expenses and other current assets
|
|
106
|
|
49
|
|
Accounts payable, accrued expenses, employee and
compensation benefits, and accrued restructuring
|
|
(495
|
)
|
180
|
|
Deferred revenue
|
|
(2,203
|
)
|
(2,338
|
)
|
Net cash used for operating activities
|
|
(2,589
|
)
|
(2,342
|
)
|
|
|
|
|
|
|
Investing activities
|
|
|
|
|
|
Purchases of equipment and improvements
|
|
(45
|
)
|
(266
|
)
|
Purchase of treasury stock
|
|
|
|
(84
|
)
|
Net cash used for investing activities
|
|
(45
|
)
|
(350
|
)
|
|
|
|
|
|
|
Financing activities
|
|
|
|
|
|
Proceeds from stock issued under employee benefit
plans
|
|
13
|
|
28
|
|
Net cash provided by financing activities
|
|
13
|
|
28
|
|
|
|
|
|
|
|
Change in cash and cash equivalents
|
|
(2,621
|
)
|
(2,664
|
)
|
Cash and cash equivalents at beginning of year
|
|
9,395
|
|
12,059
|
|
Cash and cash equivalents at end of year
|
|
$
|
6,774
|
|
$
|
9,395
|
|
Supplementary disclosure of cash flow information:
|
|
|
|
|
|
Interest paid
|
|
$
|
1
|
|
$
|
2
|
|
Income taxes refunded
|
|
$
|
(17
|
)
|
$
|
(18
|
)
|
See
accompanying notes.
28
Table
of Contents
Notes to
the Consolidated Financial Statements
1. Nature of Business and Basis of Presentation
Ezenia! Inc. (Ezenia, we,
or the Company) operates in one business segment, which is the design,
development, production, marketing and sale of real-time group collaboration
and communication solutions for corporate and governmental networks and
eBusiness. Founded in 1991, we develop
and market products that enable organizations to provide high-quality group
communication and collaboration capabilities to commercial, governmental,
consumer and institutional users. Our products allow individuals and groups,
regardless of proximity constraints, to interact and share information in a
natural, spontaneous way voice-to-voice, face-to-face, mouse-to-mouse, or
keyboard-to-keyboard, flexibly, securely and in real time. Using our products, individuals can interact
through a natural meeting experience, allowing groups to work together
effectively and disseminate vital information quickly in a secure
environment. .
The
consolidated financial statements include the accounts of Ezenia and its wholly
owned subsidiaries Ezenia International, Inc. and Ezenia Latin America, Inc.
All significant inter-company transactions and balances have been
eliminated. All assets and liabilities of Ezenias foreign subsidiaries
are translated at the rate of exchange at the end of the year, while sales and
expense are translated at the average rate in effect during the year. The
net effect of these translation adjustments was immaterial for all periods
presented.
2. Summary of Significant Accounting Policies
Use of Estimates
The preparation of the
financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, and
disclosure of contingent assets and liabilities, if any, at the date of the
financial statements and the reported amounts of revenue and expenses during
the reporting period. Actual results
could differ from these estimates.
Revenue Recognition
Product revenue consists of sales of InfoWorkSpace (IWS)
software licenses and maintenance agreements, IWS product related training,
installation, and consulting, and video products. Revenue from sales of IWS software licenses
and maintenance agreements is recognized ratably over the subscription software
license contract periods, which are generally one year, pursuant to the
guidance provided by Statement of Position (SOP) 97-2,
Software
Revenue Recognition
issued by the American Institute of Certified
Public Accountants (AICPA). Revenue from IWS training, installation, and consulting
services are recognized as the services are performed because we believe we
have established vendor specific objective evidence of fair value based on the
price charged when the services are sold separately.
Revenue from video product sales is recognized upon
shipment to the customer and the fulfillment of all contractual terms and
conditions, pursuant to the guidance provided by Staff Accounting Bulletin (SAB)
No. 104,
Revenue Recognition in Financial Statements
issued by the Securities and Exchange Commission.
Product development revenue relates to contracts
involving customization of the IWS product according to customer
specifications. We account for product
development revenue in conformity with the guidance provided by SOP 81-1,
Accounting For Performance of Construction Type and Certain Production
Type Contracts
issued by the AICPA.
When reliable estimates are available for the costs and efforts
necessary to complete the product development and the contract does not include
contractual milestones or other acceptance criteria, product development
revenue is recognized under the percentage-of-completion contract method based
upon input measures, such as hours. When
such estimates are not available, we defer all revenue recognition until we
have completed the contract and have no further obligations to the
customer. Revenue associated with
contracts for product development revenue with milestone-based deliverables
requiring a customers acceptance is recognized upon the customers acceptance
in accordance with terms of the contract.
The associated cost recognition with these deliverables or milestones is
deferred until the terms of acceptance are satisfied and revenue is recognized.
29
Table of Contents
As of December 31, 2008 and 2007, we had no
unbilled receivables or deferred costs related to milestone contracts. Certain
of our product development contracts are subject to government audit and
retroactive adjustment of the direct and indirect costs used to determine the
contract billings. Product development
revenue and accounts receivable reported in the financial statements are
recorded at the amount expected to be received.
Product development revenue is adjusted to actual upon final audit and
retroactive adjustment. Estimated
contractual allowances are provided based on managements evaluation of current
contract terms. During 2008, the government completed a review of the 2004-2007
development contracts. Based upon these reviews we recorded $67,000 of revenue
which had initially been deferred pending the completion of the reviews.
Products and software licenses are sold without any
contractual right of return by the customer.
Deferred revenue represents amounts received from customers under
subscription software licenses, maintenance agreements, or for product sales in
advance of revenue recognition.
Judgments are required in evaluating the creditworthiness of our
customers. In all instances, revenue is
not recognized until we have determined, at the outset of the arrangement that
collectability is reasonably assured.
Amounts billed to customers related to shipping and handling charges are
recorded as revenue upon shipment and the related costs are included in cost of
goods sold.
Third-Party Technology
Our IWS product
incorporates third-party technology in the form of software licenses, which we
purchase from other software vendors.
Software licenses purchased from vendors are reported as prepaid
licenses and, when deployed, amortized to cost of revenue over the subscription
period, which is generally one year.
Advertising
Advertising costs are
included in sales and marketing expense.
We use our website as our main form of advertising along with
participating in various industry-related trade shows and currently do not
incur material advertising costs. Advertising costs are expensed as incurred.
Advertising expense was approximately $17,000 and $24,000 in fiscal years 2008
and 2007, respectively.
Cash Equivalents
We consider all highly
liquid investments with a maturity of 90 days or less at the date of purchase,
or investments that can be converted to cash quickly such as mutual funds, to
be cash equivalents.
Financial Instruments and Concentrations of Credit
Risk
Our financial instruments
consist primarily of cash and cash equivalents, trade receivables, accounts
payable and accrued expenses. The
carrying value of these financial instruments approximates fair value due to
their short term to maturity. Financial
instruments, which potentially subject us to concentrations of credit risk, are
cash equivalents and accounts receivable.
Major financial
institutions maintain all our cash equivalents. At times, balances may exceed
federally insured limits.
We
have not experienced any losses in such accounts, and believe we are not
exposed to any significant credit risk on cash and cash equivalents. Concentration of credit risk with
respect to accounts receivable is limited to certain customers to whom we make
substantial sales. To reduce risk, we
routinely assess the financial strength of our customers. We maintain an allowance for doubtful
accounts based on accounts past due according to contractual terms and
historical collection experience. Actual
losses when incurred are charged to the allowance. Write-offs related to accounts receivable
have been within managements expectations.
Revenue from one customer
accounted for approximately 35% of total revenue in 2008 and 33% of total
revenue in 2007. Accounts receivable
from this customer accounted for approximately 29% and 3% of the balances at December 31,
2008 and 2007, respectively. A second customer accounted for approximately 28%
of total revenue in 2008 and 16% of total revenue in 2007. This customers accounts receivable balance
accounted for approximately 43% and 28% of the balance at December 31,
2008 and 2007, respectively. A third
customer accounted for approximately 10% of total revenue in 2008 and 8% of
total revenue in 2007. Revenue from international markets was immaterial in
2008 and 2007, respectively.
30
Table
of Contents
Equipment and Improvements
Equipment and
improvements are stated at cost and depreciated using the straight-line method
over the following estimated useful lives:
Computer software and equipment
|
|
3 years
|
|
Office equipment
|
|
5 years
|
|
Furniture and fixtures
|
|
5 years
|
|
Leasehold improvements
|
|
Shorter of lease term
or estimated useful life
|
|
Repairs and
maintenance costs are expensed as incurred.
Research and Development Costs
We account for research and
development costs in accordance with several accounting pronouncements,
including
Statement
of Financial Accounting Standard (SFAS)
No. 2,
Accounting for
Research and Development Costs
, and SFAS No. 86,
Accounting for the
Costs of Computer Software to be Sold, Leased, or Otherwise Marketed
. SFAS No. 86 specifies that costs
incurred internally in researching and developing a computer software product
should be charged to expense until technological feasibility has been
established for the product. Once technological feasibility is established, all
software costs should be capitalized until the product is available for general
release to customers. During the quarter
ended March 31, 2006, we released version 3.0 of our IWS software
product. In connection with this
development effort, a total of $140,000 of costs were capitalized and amortized
on a straight-line basis over the estimated economic life of the product, which
we determined to be two years. The carrying value at December 31, 2008 is
zero.
Judgment is required in
determining when technological feasibility of a product is established. In most
cases, we have determined that technological feasibility for our software
products/updates is reached shortly before the products are released to
manufacturing. Costs incurred after technological feasibility is established
have historically not been material, and accordingly, were expensed when
incurred in these instances.
Income Taxes
Deferred tax assets and liabilities are determined
at the end of each year based on the future tax consequences that can be
attributed to net operating loss and credit carryovers as well as the
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases.
The deferred tax assets are reduced by a valuation allowance if it is
more likely than not that the tax benefits will not be realized. The realization of deferred tax assets is
dependent upon the generation of future taxable income. In determining the valuation allowance, we
consider past performance, expected future taxable income, and qualitative
factors which we consider to be appropriate to be considered in estimating
future taxable income. Our forecast of
expected future taxable income is for future periods that can be reasonably estimated. Results that differ materially from our
current expectations may cause us to change our judgment on future taxable
income. These changes, if any, may require us to adjust our existing tax
valuation allowance higher or lower than the amount we have recorded.
As of December 31, 2007, we concluded that the
realization of the net deferred tax asset balance of $717,000 was uncertain due
to the loss in 2007 and the uncertainty of future taxable income. We therefore provided a full reserve against
the deferred tax assets in 2007, which has remained unchanged as of December 31,
2008.
Net Loss Per Share
We report net loss per
share in accordance with SFAS No. 128,
Earnings per
Share
. Diluted earnings per share include the effect of dilutive
stock options.
31
Table of Contents
Shares used in computing
basic and diluted net loss per share are as follows:
|
|
2008
|
|
2007
|
|
Basic
|
|
14,646,006
|
|
14,672,808
|
|
Effect of assumed exercise of
stock options
|
|
|
|
|
|
Diluted
|
|
14,646,006
|
|
14,672,808
|
|
Outstanding options excluded
as impact is anti-dilutive
|
|
3,239,157
|
|
2,747,066
|
|
Accounting for Share-Based Compensation
We account for share-based
compensation expense in accordance with SFAS No. 123R,
Accounting for Stock-Based Compensation,
and the SEC Staff
Accounting Bulletin (SAB) 107,
Share-based Payment.
Under SFAS No. 123R, share-based compensation expense reflects the fair
value of share-based awards measured at the grant date and recognized over the
relevant service period. SAB 107 provides
guidance related to share-based payment transactions with non-employees,
valuation methods (including assumptions such as expected volatility and
expected term), and the classification of compensation expense, among other
matters. We estimate the fair value of each stock-based award on the
measurement date using the Black-Scholes option valuation model. The
Black-Scholes option valuation model incorporates assumptions as to stock price
volatility, the expected life of options, a risk-free interest rate and
dividend yield. We recognize share-based compensation expense on a
straight-line basis over the requisite service period of the award, which is
generally four years.
For
the years ended December 31, 2008 and 2007, we recorded share-based
compensation expense in the consolidated statements of operations as follows:
|
|
Year Ended
|
|
Year Ended
|
|
(in thousands)
|
|
December 31, 2008
|
|
December 31, 2007
|
|
Cost of revenue
|
|
$
|
23
|
|
$
|
13
|
|
Research and development
|
|
63
|
|
50
|
|
Sales and marketing
|
|
79
|
|
27
|
|
General and administrative
|
|
538
|
|
385
|
|
|
|
$
|
703
|
|
$
|
475
|
|
We
estimate the fair value of each option award issued under the plans on the date
of grant using a Black-Scholes based option-pricing model that uses the
assumptions noted in the following table.
Expected volatilities are based on historical volatility of our common
stock. We base the expected term of the
options on our historical option exercise data with a minimum life expected
equal to the vesting period of the option.
We base the risk-free interest rate on the U.S. Treasury yield in effect
at the time of the grant for a term closest to the expected life of the
options.
|
|
Year ended December 31,
|
|
|
|
2008
|
|
2007
|
|
Expected volatility
|
|
69.33%-92.39%
|
|
93.13%-93.75%
|
|
Risk-free interest rate
|
|
1.52%-3.35%
|
|
2.93%-3.84%
|
|
Expected life in years
|
|
4.0
|
|
4.0
|
|
Expected dividend yield
|
|
None
|
|
None
|
|
|
|
|
|
|
|
|
Based
on the above assumptions, the weighted average estimated fair value of options
granted in fiscal years 2008 and 2007 was $0.37 and $1.33 per share,
respectively. We estimated forfeitures
related to option grants at an annual rate of 30% per year and true up for
actual forfeitures each reporting period.
Other
reasonable assumptions about these factors could provide different estimates of
fair value. Future changes in stock
price volatility, life of options, interest rates, forfeitures and dividend
practices, if any, may require changes in our assumptions, which could
materially affect the calculation of fair value.
32
Table
of Contents
Total
unrecognized share-based compensation expense related to unvested stock
options, expected to be recognized over a weighted average period of 1.32
years, amounted to $1.1 million at December 31, 2008.
The
weighted average exercise price of stock options exercised for the year ended December 31,
2008 was $0.23. The total intrinsic
value of stock options exercised for the years ended December 31, 2008 and
2007 was $20,000 and $55,000, respectively.
Recent Accounting Pronouncements
In September 2006, the
FASB issued SFAS No. 157,
Fair Value Measurements
(SFAS No. 157). SFAS No. 157 defines fair value, establishes
a framework for measuring fair value and expands fair value measurement
disclosures. In February 2008, the FASB issued FASB Staff Position (FSP) FAS 157-1,
Application of FASB Statement No. 157 to FASB
Statement No. 13 and Other Accounting Pronouncements That Address Fair
Value Measurements for Purposes of Lease Classification or Measurement under
Statement 13,
and FSP FAS 157-2,
Effective
Date of FASB Statement No. 157.
Collectively, the FSPs defer
the effective date of SFAS 157 to fiscal years beginning after November 15,
2008 for nonfinancial assets and nonfinancial liabilities except for items that
are recognized or disclosed at fair value on a recurring basis at least
annually, and amend the scope of SFAS 157. We adopted SFAS 157 in 2008 except
for those items specifically deferred under FSP FAS 157-2. We are
currently evaluating the impact of the full adoption of SFAS 157 on our
consolidated financial statements.
In
December 2007, the FASB issued SFAS No. 141R,
Business
Combinations
(SFAS No. 141R). SFAS No. 141R
expands the scope of acquisition accounting to all transactions under which
control of a business is obtained. Principally, SFAS No. 141R
requires that contingent consideration as well as contingent assets and
liabilities be recorded at fair value on the acquisition date and that certain
transaction and restructuring costs be expensed. SFAS No. 141R is
effective for fiscal years beginning after December 15, 2008. As
application of this statement is prospective and applicable to business
combinations that occur after its effective date, we do not anticipate that
SFAS No. 141R will have a material, if any, impact on our consolidated
financial position and results of operations.
3.
Equipment and Improvements
Property and
equipment are recorded at cost less accumulated depreciation and
amortization. Depreciation is calculated
using the straight-line method over the useful lives of the respective assets. Leasehold improvements are amortized over the
shorter of the estimated useful lives of the improvements or the remaining
lease term. For the years ended December 31, 2008 and 2007, equipment and
improvements consisted of the following:
(in thousands)
|
|
2008
|
|
2007
|
|
Computer equipment and purchased software
|
|
$
|
441
|
|
$
|
387
|
|
Office equipment
|
|
34
|
|
34
|
|
Furniture and fixtures
|
|
51
|
|
76
|
|
Leasehold improvements
|
|
192
|
|
176
|
|
Total equipment and improvements
|
|
$
|
718
|
|
$
|
673
|
|
Less: accumulated depreciation
|
|
(475
|
)
|
(293
|
)
|
Total equipment and improvements, net
|
|
$
|
243
|
|
$
|
380
|
|
Depreciation
expense for the years ended December 31, 2008 and 2007 was $182,000 and
$191,000 respectively. Also included in
depreciation expense for the year ended December 31, 2007 is a $24,000
write-off related to the assets of our closed Colorado facility.
4.
Income
Taxes
We
adopted the provisions of FASB Interpretation No. 48,
Accounting for Uncertainty in Income Taxes
(FIN 48) an
interpretation of FASB Statement No. 109 (SFAS No. 109) on January 1,
2007. We have determined that the
realization of $2.4 million in federal tax credits is in doubt. As a result of
the implementation of FIN 48, we would have recognized a $2.4 million increase
in the liability for unrecognized tax benefits had we recognized any benefit
associated with the credits in prior periods. However, due to past net
operating losses, no benefit has been recognized; accordingly, no liability has
been recognized. As a result, at the adoption date of FIN 48, January 1,
2007 and also at December 31, 2008, we had no unrecognized tax benefits.
33
Table of Contents
At
December 31, 2008, we had federal and state net operating loss (NOL)
carryforwards of $64.4 million and $14.1 million, expiring at various dates
through 2028. Utilization of the NOL carryforwards may be subject to a
substantial annual limitation due to ownership change limitations that have
occurred previously or that could occur in the future provided by Section 382
of the Internal Revenue Code of 1986, as well as similar state provisions.
These ownership changes may limit the amount of NOL that can be utilized
annually to offset future taxable income and tax, respectively. In general, an
ownership change, as defined by Section 382, results from transactions
increasing the ownership of certain stockholders or public groups in the stock
of a corporation by more than 50 percentage points over a three-year period.
Since our formation, we have raised capital through the issuance of capital
stock on several occasions which, combined with the purchasing stockholders
subsequent disposition of those shares, may have resulted in a change of control,
as defined by Section 382, or could result in a change of control in the
future upon
subsequent
disposition. We have not currently completed a study to assess whether a change
of control has occurred or whether there have been multiple changes of control
since our formation due to the significant complexity and cost associated with
such study and due to the possibility of additional changes in control in the
future. If we have experienced a change of control at any time since our
formation, utilization of our NOL carryforwards would be subject to an annual
limitation under Section 382. Further, until a study is completed and any
limitation known, no amounts are being presented as an uncertain tax position
under FIN 48.
We
recognize interest and penalties related to uncertain tax positions in income
tax expense. As of December 31,
2008, we had no accrued interest or penalties related to uncertain tax
positions.
The
tax years 2000 through 2007 remain open to examination by the major taxing
jurisdictions to which we are subject. The Internal Revenue Service completed
an audit of our consolidated federal income tax return for the 2005 tax year
with no adjustments.
The provision (benefit)
for income taxes is as follows:
|
|
Year ended December 31,
|
|
(in thousands)
|
|
|
2008
|
|
2007
|
|
|
|
|
|
|
|
Current
|
|
|
|
|
|
Federal
|
|
$
|
(1403
|
)
|
(3,115
|
)
|
State
|
|
(229
|
)
|
(519
|
)
|
|
|
|
|
|
|
Total current
|
|
(1,632
|
)
|
(3,634
|
)
|
Deferred
|
|
|
|
|
|
Federal
|
|
1,403
|
|
3,782
|
|
State
|
|
229
|
|
563
|
|
|
|
|
|
|
|
Total deferred
|
|
1,632
|
|
4,345
|
|
|
|
|
|
|
|
Total tax expense(benefit)
|
|
$
|
|
|
711
|
|
|
|
|
|
|
|
|
|
In
2007 we recorded an income tax provision of $717,000 related to the increase in
the valuation allowance for deferred tax assets that were recorded in 2006 and
2005. Due to the uncertainty of future taxable income, we have not recorded an
income tax benefit for the losses incurred in 2008 and 2007.
34
Table
of Contents
Our
deferred tax assets consist of the following:
|
|
December 31, 2008
|
|
December 31, 2007
|
|
Deferred Tax Assets:
(in thousands)
|
|
|
|
|
|
Net Operating Loss Carryforwards
|
|
$
|
22,432
|
|
$
|
20,771
|
|
Purchased intangibles
|
|
3,243
|
|
3,754
|
|
Tax Credit Carryforwards
|
|
2,546
|
|
2,541
|
|
Reserves, accruals and allowances
|
|
147
|
|
237
|
|
Capitalized Research and Development Costs
|
|
75
|
|
151
|
|
Deferred Revenue
|
|
1
|
|
70
|
|
Depreciation and Amortization
|
|
78
|
|
53
|
|
Other
|
|
618
|
|
331
|
|
Total Gross Deferred Tax Asset
|
|
29,140
|
|
27,908
|
|
Valuation Allowance
|
|
(29,140
|
)
|
(27,908
|
)
|
Net Deferred Tax Asset
|
|
$
|
|
|
$
|
|
|
At
December 31, 2008, we had domestic federal NOL carryforwards of
approximately $64.4 million available to reduce future taxable income, which
expire at various dates beginning in 2019 through 2028. We also have
federal research and development tax credit carryforwards of approximately $2.4
million at December 31, 2008 available to reduce future tax liabilities
which expire at various dates beginning in 2019 through 2028. We have
state NOL carryforwards of approximately $14.1 million available to reduce
future state taxable income, which expire at various dates beginning in 2009
through 2028.
As described above under
the provisions of the Internal Revenue Code, certain substantial changes in our
ownership may result in a limitation on the amount of NOL carryforwards and
research and development credit carryforwards which may be utilized annually to
offset future taxable income and taxes payable.
As required by SFAS No. 109,
our management has evaluated the positive and negative evidence bearing upon
the realizability of our deferred tax assets, which are comprised principally
of NOL carryforwards, research and experimentation credit carryforwards, and
capitalized start up expenditures and research and development expenditures
amortizable over 60 months on a straight-line basis. Management has determined at this time that
it is more likely than not that we will not recognize the benefits of our
federal and state deferred tax assets and, as a result, a valuation allowance
of approximately $29.1 million has been established at December 31, 2008
and approximately $27.9 million at December 31, 2007, respectively.
Management has concluded at this time that the net deferred tax asset is
appropriate, and that it is more likely than not that the remaining net
deferred tax asset will not be realized.
A reconciliation of the
expected income tax (benefit) computed using the federal statutory income tax
rate to our effective income tax rate is as follows for the years ended December 31,
2008 and 2007.
(in thousands)
|
|
|
December 31, 2008
|
|
December 31, 2007
|
|
|
|
|
|
|
|
Income tax computed at federal statutory tax rate
|
|
$
|
(1,044
|
)
|
$
|
(1,304
|
)
|
|
|
|
|
|
|
State taxes, net of federal benefit
|
|
(200
|
)
|
245
|
|
|
|
|
|
|
|
Change in valuation allowance
|
|
1,232
|
|
2,007
|
|
|
|
|
|
|
|
R&D and other credits
|
|
(31
|
)
|
(31
|
)
|
|
|
|
|
|
|
Permanent differences and other
|
|
43
|
|
(206
|
)
|
|
|
|
|
|
|
Total
|
|
$
|
|
|
$
|
711
|
|
5.
Commitments
and Contingencies
We
lease our primary facility in Nashua, New Hampshire, under an operating lease,
which expires in June 2010. In July 2007, we signed an additional
lease for 6,000 square feet adjacent to our existing rented space in Nashua,
New Hampshire. These leases will expire
in August 2010. We also have leased office space, located in Sterling,
35
Table of Contents
Virginia
for our sales force which expires in 2010.
Future minimum lease obligations at December 31, 2008, under all of
these non-cancelable operating leases are approximately $217,000 in 2009 and
$153,000 in 2010 and $98,000 in 2011. We
estimate sublease rental for the Colorado Springs facility in the amounts of
$20,000 in 2009, $48,000 in 2010 and $44,000 in 2011.
In
December 2007, we completed the closure of our Colorado Springs
facility. We recorded a restructuring
charge of $215,000 to cover the expected lease payments of this facility, net
of expected proceeds. In 2008, we reassessed our exposure in consideration of
the current real estate market and interest in the space to-date by potential
subtenants. Based on the resulting conclusions, we recorded an additional
restructuring charge of $219,000 during the year. The space is leased through November 2011
and is currently available for subleasing. We estimate that we will have to pay
$287,000, net of expected sublease rental, over the remaining lease term. Our
gross remaining obligation on the lease, including estimated operating
expenses, is approximately $453,000.
The
adjustments to the accrued restructuring liability related to the shutdown of
the Colorado facility for the period ended December 31, 2008 were as
follows (in thousands):
Restructuring balance as of December 31, 2007
|
|
$
|
215
|
|
Cash payments
|
|
(147
|
)
|
Additional liability recorded
|
|
219
|
|
Restructuring liability at December 31, 2008
|
|
$
|
287
|
|
In
April 2007, we entered into a new agreement with Microsoft to extend an
existing software distribution license agreement through December 2008. Under the agreement, we were required to
purchase a minimum of $1.7 million and $2.75 million of licenses during 2007
and 2008 respectively, plus purchase an additional $0.5 million over the life
of the two year agreement. During 2007 we reviewed our forecast for license
sales over the balance of the agreement and recorded a charge of $1.45 million
to reserve for an excess purchase commitment.
The charge was recorded as a component of cost of product revenue during
the year ended December 31, 2007.
In
December 2008, the Microsoft agreement was amended to extend the term
through June 2011 and reduce the remaining purchase commitment to $2.75
million, $154,000 of which was satisfied during 2008. The amended agreement requires that we make
minimum payments of $1.0 million, $1.1 million and $0.5 million during 2009,
2010 and 2011, respectively. In addition
to the remaining $2.6 million license purchase commitment, we have approximately
$670,000 of prepaid licenses on hand that have yet to be deployed to
customers. During 2008 we continued to
experience a decline in the volume of our customer license renewals. As of December 31, 2008, we reviewed our
forecast for license sales through the amended term (June 2011) and believe
that the $1.45 million reserve remains the appropriate reserve for the excess
purchase commitment. The computation of
the excess purchase commitment reserve requires management to make certain
assumptions regarding future license renewals and sales growth. Actual results may differ materially from
managements estimates.
6.
Stockholders
Equity
We have authorized
2,000,000 shares of undesignated preferred stock. Each series of preferred
stock shall have such rights, preferences, privileges and restrictions,
including voting rights, dividend rights, conversion rights, redemption
privileges and liquidation preferences as determined by the Board of Directors.
Share
Repurchase Program
In
October 2007, the Board authorized the repurchase up to $1.0 million of
common stock. This authority was
exercised from time to time through November 2008. As of December 31,
2008, we had purchased $84,000 of our common stock. The authorization period
has expired.
7.
Benefit Plans
Stock Option Plans
Our Amended and Restated
1991 Stock Incentive Plan (the 1991 Plan) provided for the sale or award of
common stock, or the grant of incentive stock options or nonqualified stock
options for the purchase of common
36
Table of Contents
stock, up to 6,090,541
shares to our officers, employees and consultants. The 1991 Plan terminated on March 31,
2001, and no further options have been granted under the 1991 Plan subsequent
to that date. At December 31, 2008,
there were 489,000 shares of common stock reserved for issuance upon exercise
of outstanding options granted under the 1991 Plan.
Our 2001 Stock Incentive
Plan was approved and adopted by the Board on April 11, 2001 (the 2001
Plan). The 2001 Plan provided for the sale or award of common stock, or the
grant of non-qualified stock options for the purchase of common stock, up to
5,000,000 shares to our officers, directors, employees and consultants. Vesting of options granted under the 2001
Plan accelerates upon a change of control or acquisition as defined in the 2001
Plan. The 2001 Plan terminated on December 31, 2004 and no further options
have been granted under the 2001 Plan subsequent to that date. At December 31, 2008, there were 19,750
shares of common stock reserved for issuance upon exercise of outstanding
options granted under the 2001 Plan.
Our 2004 Stock Incentive
Plan was approved and adopted by the Board on December 31, 2004 (the 2004
Plan). The 2004 Plan provides for the sale or award of common stock or the
grant of non-qualified stock options for the purchase of common stock, up to
7,500,000 shares to our officers, directors, employees and consultants. The
Board administers the 2004 Plan, and the terms of grants and awards made
pursuant to the 2004 Plan. Vesting of
options granted under the 2004 Plan accelerates upon a change of control or
acquisition as defined in the 2004 Plan. The 2004 Plan will terminate on December 31,
2014. At December 31, 2008, there
were 2,696,407 shares of common stock reserved for issuance upon exercise of
outstanding options granted under the 2004 Plan.
In April 1995,
the Board and stockholders approved our Non-Employee Director Stock Option Plan
(the Director Plan), which was amended by the Board on June 5, 2002. The
Director Plan provided that the Board, at its discretion, was permitted to
grant options to non-employee directors, subject to terms and conditions as
determined by the Board.
The Director
Plan terminated on November 9, 2004, and no further options have been
granted under the Director Plan subsequent to that date. At December 31, 2008, there were 34,000
shares of common stock reserved for issuance upon exercise of outstanding
options granted under the Director Plan.
A summary of
option activity under the 2004 Plan, 2001 Plan, the 1991 Plan and the Director
Plan is as follows:
|
|
Shares
|
|
Weighted
Average
Exercise
Price
|
|
Outstanding at December 31, 2006
|
|
2,396,848
|
|
$
|
3.66
|
|
Granted
|
|
996,550
|
|
1.82
|
|
Terminated
|
|
(596,877
|
)
|
2.02
|
|
Exercised
|
|
(49,455
|
)
|
0.68
|
|
|
|
|
|
|
|
Outstanding at December 31, 2007
|
|
2,747,066
|
|
3.40
|
|
Granted
|
|
1,364,600
|
|
0.63
|
|
Terminated
|
|
(815,384
|
)
|
2.48
|
|
Exercised
|
|
(57,125
|
)
|
0.23
|
|
|
|
|
|
|
|
Outstanding at December 31, 2008
|
|
3,239,157
|
|
$
|
2.52
|
|
The
weighted average remaining contractual term and the aggregate intrinsic value
for options outstanding at December 31, 2008 were 6.77 years and $0
respectively. The weighted average
remaining contractual term and the aggregate intrinsic value for options
exercisable at December 31, 2008 was 5.02 years and $0, respectively. The
total intrinsic value of stock options exercised during 2008 and 2007 was
$20,000 and $55,000, respectively.
37
Table of Contents
Related
information for options outstanding and exercisable as of December 31,
2008 under these option plans is as follows:
Range of exercise prices
|
|
Outstanding
Options
|
|
Weighted
Average
Remaining
Contractual Life
|
|
Weighted
Average
Exercise Price
|
|
Exercisable
Options
|
|
Weighted
Average
Exercise Price
|
|
$0.11
|
-
|
$0.97
|
|
1,587,850
|
|
8.04
|
|
$
|
0.74
|
|
559,544
|
|
$
|
0.93
|
|
1.01
|
-
|
3.14
|
|
765,557
|
|
7.82
|
|
2.03
|
|
389,706
|
|
2.06
|
|
3.30
|
|
3.30
|
|
394,750
|
|
7.16
|
|
3.30
|
|
267,564
|
|
3.30
|
|
3.50
|
-
|
7.87
|
|
241,000
|
|
0.33
|
|
7.72
|
|
239,906
|
|
7.73
|
|
9.13
|
|
9.13
|
|
250,000
|
|
1.14
|
|
9.13
|
|
250,000
|
|
9.13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,239,157
|
|
6.77
|
|
2.52
|
|
1,706,720
|
|
3.71
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Savings Plan
We sponsor a savings plan for our employees, which has been qualified
under Section 401(k) of the Internal Revenue Code. Eligible employees are permitted to
contribute to the 401(k) plan through payroll deductions within statutory
and plan limits. At the discretion of
the Board we contributed approximately $47,000 and $38,000 in 2008 and 2007,
respectively.
Deferred
Compensation Plan
Effective
March 31, 2006, we adopted the Ezenia Deferred Compensation Plan (the Plan).
Under this Plan, eligible employees may elect to defer up to 100% of their base
and incentive compensation into the Plan. We are under no obligation to
establish a fund or reserve in order to pay the benefits under the Plan except
in the event of a change in control. If
funded, the plan Trustee makes all investment decisions for the Trust on behalf
of the participants. We have not guaranteed a return on investment for the
participants, however, all earnings and losses on the Plan assets are borne by
the participant. All contributions and
earnings are fully vested to the participant when made but are subject to our
creditors in the event of bankruptcy. As
a result, the assets held in the Plan have been recorded as cash equivalents in
the consolidated balance sheet with a corresponding liability being recorded as
deferred compensation, which is included in employee compensation and benefits
in the accompanying consolidated balance sheet.
Interest earned on the Plan assets is recorded as interest income in the
consolidated statement of operations. A corresponding entry to deferred
compensation is made to increase (decrease) the amounts due the participant
resulting from the changes in the asset value with an offsetting charge or
credit to general and administrative expense. Compensation expense, including
employee deferrals, was approximately ($98,000) and $36,000 in the years ended December 31,
2008 and 2007, respectively.
8.
Fair Value Measurements
In
September 2006, the FASB issued SFAS No. 157, which defines fair
value, establishes a framework for measuring fair value and expands fair value
measurement disclosures. In February 2008, the FASB issued FSP
FAS 157-1, and FSP FAS 157-2, collectively, these FSPs defer the
effective date of SFAS 157 to fiscal years beginning after November 15,
2008 for nonfinancial assets and nonfinancial liabilities except for items that
are recognized or disclosed at fair value on a recurring basis at least
annually, and amend the scope of SFAS 157. We adopted SFAS 157 in 2008 except
for those items specifically deferred under FSP FAS 157-2.
As
defined in SFAS No. 157, fair value is the price that would be received to
sell an asset or paid to transfer a liability in an orderly transaction between
market participants at the measurement date. SFAS No. 157 establishes
a fair value hierarchy that prioritizes the inputs to valuation techniques used
to measure fair value. The fair value hierarchy consists of three broad levels:
·
|
|
Level 1: valuations consist of unadjusted quoted prices in
active markets for identical assets and liabilities and has the highest
priority;
|
|
|
|
·
|
|
Level 2: valuations rely on quoted prices in markets that are
not active or observable inputs over the full term of the asset or liability;
|
|
|
|
·
|
|
Level 3: valuations are based on prices or third-party or
internal valuation models that require inputs that are significant to the
fair value measurement and are less observable and thus have the lowest priority.
|
38
Table of Contents
The
only financial instruments reported at fair value are our cash equivalents,
which include short-term mutual funds classified as trading securities, and are
reported at fair value using Level 1 inputs. The unrealized gain (loss) related
to these short-term investments amount to ($98,000) and $36,000, and is
recorded in other income (expense) for the years ended December 31, 2008
and 2007, respectively.
9.
Shareholder Rights Agreement
On
April 15, 2008, we adopted a Shareholder Rights Agreement. Pursuant
to the terms of the Rights Agreement, the Board declared a dividend
distribution of one Preferred Stock Purchase Right (a Right) for each
outstanding share of our common stock to shareholders of record as of the close
of business on April 16, 2008 (the Record Date). In addition, one
Right will automatically attach to each share of common stock issued between
the Record Date and the Distribution Date (as defined in the agreement).
Each Right entitles the registered holder thereof to purchase from us a unit
consisting of one ten-thousandth of a share (a Unit) of our Series D
Junior Participating Cumulative Preferred Stock, par value $0.01 per share, at
a cash exercise price of $3.00 per Unit, subject to adjustment under certain
conditions specified in the Rights Agreement.
Initially,
the Rights are not exercisable and are attached to and trade with all shares of
common stock outstanding as of, and issued subsequent to, the Record
Date. The Rights will separate from the common stock and will become
exercisable upon the occurrence of the earlier of several circumstances, as
defined in the agreement.
In
the event that a Stock Acquisition Date (as defined in the agreement) occurs,
proper provision will be made so that each holder of a Right (other than an
Acquiring Person, as defined in the agreement, or its associates or affiliates,
whose Rights shall become null and void) will thereafter have the right to
receive upon exercise, in lieu of a number of Units of Preferred Stock, that
number of shares of our common stock (or, in certain circumstances, including
if there are insufficient shares of common stock to permit the exercise in full
of the Rights, Units of Preferred Stock, other securities, cash or property, or
any combination of the foregoing) having a market value of two times the
exercise price of the Right (such right being referred to as the Subscription
Right). Upon the occurrence of any of several particular circumstances,
as defined in the agreement, following the Stock Acquisition Date, each holder
of a Right will thereafter have the right to receive, upon exercise, common
stock of the acquiring company having a market value equal to two times the
exercise price of the Right (such right being referred to as the Merger Right).
The holder of a Right will continue to have the Merger Right whether or not
such holder has exercised the Subscription Right. Rights that are or were
beneficially owned by an Acquiring Person may (under certain circumstances
specified in the Rights Agreement) become null and void.
The
Rights contain certain redemption rights and provisions, as defined in the
agreement. On April 21, 2008 we designated 50,000 of our 2,000,000 shares
of authorized preferred stock as Series D Preferred Stock.
10.
Related-Party Transactions
During 2007, we engaged the
Carmen Group, Inc. (Carmen Group) as consultants to assist in the development
and implementation of a strategy for marketing our products to Federal
purchasers within the Department of Defense and appropriate adjacent markets.
The President of the Carmen Group is the son of a member of our Board of
Directors. We paid the Carmen Group $275,000 and $190,000 during the years
ended December 31, 2008 and 2007, respectively, for consulting services.
We terminated the agreement with the Carmen Group during the fourth quarter of
2008.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
39
Table of Contents
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
As required by Rule 13a-15 under the
Securities Exchange Act of 1934, as of December 31, 2008, our management,
under the supervision and with the participation of both the chief executive
officer and the chief financial officer, carried out an evaluation of the
effectiveness of our disclosure controls and procedures. Based on this
evaluation, our chief executive officer and chief financial officer concluded
that our disclosure controls and procedures were effective at the reasonable
assurance level to ensure that the information required to be disclosed in the
reports filed or submitted by us under the Securities Exchange Act of 1934 as
amended, was recorded, processed, summarized, and reported within the requisite
time periods, including ensuring that such material information is accumulated
and communicated to our management to allow timely decisions regarding required
disclosure.
Changes in Internal Control Over Financial Reporting
There
were no changes in our internal control over financial reporting that occurred
during the quarter ended December 31, 2008 that materially affected, or
are reasonably likely to materially affect, our internal control over financial
reporting.
Managements Report on Internal Control Over Financial
Reporting
Management
is responsible for establishing and maintaining adequate internal control over
financial reporting as defined in Rule 13a-15(f) of the Securities
Exchange Act of 1934 as amended. Our internal control over financial reporting
is a process designed 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. Our
internal control over financial reporting includes those policies and
procedures that (i) pertain to the maintenance of records that, in
reasonable detail, accurately and fairly reflect the transactions and
dispositions of our assets; (ii) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and that our receipts
and expenditures are being made only in accordance with authorizations of our
management and directors; and (iii) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition
of our assets that could have a material effect on the financial statements.
Because
of its inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
Management
has assessed our internal control over financial reporting in relation to
criteria described in
Internal Control
Integrated Framework,
issued by the Committee of Sponsoring
Organizations of the Treadway Commission. Based on this assessment using those
criteria, we concluded that, as of December 31, 2008, our internal control
over financial reporting was effective.
This
annual report does not include an attestation report of our independent
registered public accounting firm regarding internal control over financial
reporting. Managements report was not subject to attestation by our
independent registered public accounting firm pursuant to the rules of the
Securities and Exchange Commission that permit us to provide only managements
report in this annual report.
ITEM 9B.
OTHER INFORMATION
None
40
Table of Contents
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE
REGISTRANT
The information required by Item 10 will be included in our definitive
Proxy Statement to be delivered to stockholders in connection with the 2009
Annual Meeting of Stockholders. Such information is hereby incorporated herein
by reference.
We have adopted a Code of Business Conduct
and Ethics (the Code) that applies to all of our employees, including our
executive officers and directors. The Code is available on our website at
www.ezenia.com. We intend to disclose
any amendments to or waivers of the Code on behalf of our Chief Executive
Officer, Chief Financial Officer, Controller, and persons performing similar
functions on our website. We shall also provide to any person without charge,
upon request, a copy of the Code. Any
such request must be made in writing to Ezenia! Inc., c/o Investor Relations,
14 Celina Ave, Suite 17-18, Nashua, New Hampshire 03063.
ITEM
11. EXECUTIVE COMPENSATION
The information required by Item 11 will be included in our definitive
Proxy Statement to be delivered to stockholders in connection with the 2009
Annual Meeting of Stockholders. Such information is hereby incorporated herein
by reference.
ITEM
12. SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by Item 12 will be included in our definitive
Proxy Statement to be delivered to stockholders in connection with the 2009
Annual Meeting of Stockholders. Such
information is hereby incorporated herein by reference.
Equity Compensation Plan Information
The following table sets forth information as of December 31, 2008
regarding our equity compensation plans under which shares of our common stock
are authorized for issuance.
Plan Category
|
|
Number of securities to be
issued upon exercise
of outstanding options,
warrants and rights
|
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
|
|
Number of securities
remaining available for
future issuance under equity
compensation plans
(excluding securities
reflected in column (a))
|
|
|
|
(a)
|
|
(b)
|
|
(c)
|
|
|
|
|
|
|
|
|
|
Equity compensation plans approved by
securityholders
|
|
3,219,407
|
(1)
|
$
|
2.54
|
|
4,785,514
|
(2)
|
|
|
|
|
|
|
|
|
Equity compensation plans not approved by
securityholders
|
|
19,750
|
(3)
|
$
|
0.37
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
3,239,157
|
|
$
|
2.52
|
|
4,785,514
|
|
(1)
Includes
489,000 shares of common stock to be issued upon exercise of outstanding
options under the 1991 Plan, 34,000 shares of common stock to be issued upon
exercise of outstanding options under the Director Option Plan, and 2,696,407
shares of common stock to be issued upon exercise of outstanding options under
the 2004 Plan.
(2)
Includes
4,785,514 shares of common stock remaining available for future issuance under
the 2004 Plan.
41
Table of Contents
The 1991 Plan terminated on March 31,
2001, the 1994 Non Employee Director Option Plan terminated on November 9,
2004, and the 1995 Employee Stock Purchase Plan terminated on January 31,
2005, and no additional options may be granted under these plans.
(3)
Represents
shares of common stock to be issued upon exercise of outstanding options under
the 2001 Plan. The 2001 Plan terminated
on December 31, 2004, and no additional options may be granted under this
plan.
A description of these equity incentive plans is included in Note 7 to
our Consolidated Financial Statements set forth herein.
ITEM
13. CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS; DIRECTOR INDEPENDENCE
The information required by Item 13 will be
included in our definitive Proxy Statement to be delivered to stockholders in
connection with the 2009 Annual Meeting of Stockholders. Such information is
hereby incorporated herein by reference.
ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The
information required by Item 14 will be included in our definitive Proxy
Statement to be delivered to stockholders in connection with the 2009 Annual
Meeting of Stockholders. Such information is hereby incorporated herein by
reference.
PART IV
ITEM 15. EXHIBITS, AND FINANCIAL STATEMENT SCHEDULES,
AND REPORTS ON FORM 8-K
(a) Documents Filed as Part of Form 10-K
1.
Consolidated Financial
Statements.
The following consolidated financial
statements and supplementary data are included in Part II-Item 8 filed as
part of this report:
·
Report of Independent Registered Public
Accounting Firm
·
Consolidated Balance Sheets as of December 31,
2008 and 2007
·
Consolidated Statements of Operations for the
years ended December 31, 2008 and 2007
·
Consolidated Statements of Stockholders
Equity for the years ended December 31, 2008 and 2007
·
Consolidated Statements of Cash Flows for the
years ended December 31, 2008 and 2007
42
Table of Contents
·
Notes to Consolidated Financial Statements
·
Quarterly Financial Information (unaudited)
2.
Financial Statement Schedule.
·
Schedule II Valuation and Qualifying
Accounts
Schedules not listed above
have been omitted because they are not applicable, not required or the
information required is shown in the consolidated financial statements or the
notes thereto
.
3.
List of Exhibits.
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
3.1(1)
|
|
Amended and Restated
Certificate of Incorporation of the Registrant.
|
3.2(11)
|
|
Certificate of
Designations, Preferences and Rights of a Series of Preferred Stock of
the Registrant classifying and designating the Series D Junior
Participating Cumulative Preferred Stock
|
3.3(1)
|
|
Amended and Restated By-Laws
of the Registrant.
|
4.1(1)
|
|
Specimen Stock
Certificate.
|
4.2(12)
|
|
Shareholder
Rights Agreement, dated as of April 15, 2008, between Ezenia! Inc. and
Computershare Trust Company, N.A., as Rights Agent
|
10.1(1)+
|
|
Amended and Restated 1991
Stock Incentive Plan of the Registrant.
|
10.2(1)
|
|
Amended and Restated 1994
Non-Employee Director Option Plan of the Registrant.
|
10.3(1)+
|
|
1995 Employee Stock
Purchase Plan of the Registrant.
|
10.4(8)+
|
|
2004 Stock Incentive Plan
|
10.5(1)
|
|
License Agreement dated
January 2, 1995 between the Registrant and Datapoint Corporation.
|
10.6(1)
|
|
Letter Agreement dated
December 31, 1994 between the Registrant and Fleet Bank of
Massachusetts, N.A.
|
10.7(2)+
|
|
Employment Agreement dated
as of November 9, 2007 between the Registrant and Khoa D. Nguyen.
|
10.8+
|
|
First Amendment to Employment Agreement between the
Registrant and Khoa D. Nguyen, dated December 11, 2008
|
10.9(3)
|
|
Asset Purchase Agreement
dated as of December 28, 2000 between the Registrant and General
Dynamics Government Systems Corporation, as amended.
|
10.10(a)(4)
|
|
Put Agreement dated as of
March 27, 2001 (as amended to date) by and between the Registrant and
General Dynamics Government Systems Corporation.
|
10.10(b)(7)
|
|
Agreement and Release
dated as of December 31, 2002 by and between the Registrant and General
Dynamics Government Systems Corporation.
|
10.11(5)+
|
|
2001 Stock Incentive Plan
of the Registrant.
|
10.12(6)
|
|
Asset Purchase Agreement
dated as of August 1, 2002 between the Registrant and Tandberg Telecom
AS.
|
10.13(6)
|
|
License Agreement dated as
of August 1, 2002 between the Registrant and Telecom AS.
|
10.14(6)
|
|
Promissory Note dated as
of August 1, 2002 made by the Registrant in favor Tandberg Telecom AS.
|
10.15(6)
|
|
Security Agreement dated
as of August 1, 2002 between the Registrant and Tandberg Telecom AS.
|
10.16(6)
|
|
Ezenia! License Agreement
dated as of October 30, 2002 between the Registrant and Tandberg Telecom
AS.
|
10.17(9)
|
|
First Amended and Restated
Software Distribution License Agreement dated January 1, 2005 by and between
Microsoft Corporation and Ezenia! Inc.
|
10.18(10)
|
|
Amendment to First Amended
and Restated Software Distribution License Agreement by and between Microsoft
Corporation and Ezenia! Inc. dated April 2007.
|
43
Table of Contents
10.19(11)
|
|
Amendment to First Amended
and Restated Software Distribution License Agreement by and between Microsoft
Corporation and Ezenia! Inc. dated December 2008.
|
10.20+
|
|
The Ezenia! Inc. Deferred Compensation Plan, as
amended and restated as of December 11, 2008
|
21.1
|
|
Subsidiaries of the
Registrant.
|
23.2
|
|
Consent of Vitale,
Caturano & Company Ltd.
|
31.1
|
|
Consent of the Companys
Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
31.2
|
|
Consent of the Companys
Chief Financial Officer pursuant to 18 U. S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
32.1
|
|
Certification of the
Companys Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
32.2
|
|
Certification of the
Companys Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
Copies of any of these exhibits are available
without charge upon written request to Investor Relations, Ezenia! Inc., 14
Celina Avenue, Suite 17-18, Nashua, NH 03063.
+
|
|
Management contract for
compensatory plan or arrangement required to be filed as an exhibit to this
report pursuant to Item 15(c) of this report.
|
(1)
|
|
Incorporated by reference
from the Companys Registration Statement on Form S-1.
|
(2)
|
|
Incorporated by reference
from the Companys Form 8-K filed with the Securities and Exchange
Commission on November 14, 2007.
|
(3)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and Exchange
Commission for the year ended December 31, 2000.
|
(4)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended September 30,
2001.
|
(5)
|
|
Incorporated by reference
from the Companys Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on December 21, 2001.
|
(6)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended September 30,
2002.
|
(7)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and
Exchange Commission for the year ended
December 31, 2002.
|
(8)
|
|
Incorporated by reference
from the Companys Form 10-K/A filed with the Securities and Exchange
Commission for the year ended December 31, 2004.
|
(9)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended March 31, 2005.
|
(10)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and Exchange
Commission for the year ended December 31, 2007.
|
(11)
|
|
Incorporated by reference
from the Companys Registration Statement on Form 8-A, filed with the
Securities and Exchange Commission on April 21, 2008 (File
No. 000-25882)).
|
(12)
|
|
Incorporated herein by
reference to the Companys Registration Statement on Form 8-A, filed
with the Securities and Exchange Commission on April 21, 2008 (File
No. 000-25882)).
|
44
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
EZENIA! INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Khoa D. Nguyen
|
|
|
Khoa D. Nguyen
|
|
|
Chairman, Chief Executive
Officer, and President
|
|
|
(Principal executive
officer)
|
|
|
|
|
|
Date: March 23, 2009
|
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
/s/ Khoa D. Nguyen
|
|
Chairman, Chief Executive Officer,
|
|
March 23, 2009
|
Khoa D. Nguyen
|
|
and President (Principal executive officer)
|
|
|
|
|
|
|
|
|
/s/ Ronald L. Breland
|
|
Director
|
|
March 23, 2009
|
Ronald L. Breland
|
|
|
|
|
|
|
|
|
|
|
/s/ Gerald P. Carmen
|
|
Director
|
|
March 23, 2009
|
Gerald P. Carmen
|
|
|
|
|
|
|
|
|
|
|
/s/ John A. McMullen
|
|
Director
|
|
March 23, 2009
|
John A. McMullen
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert N. McFarland
|
|
Director
|
|
March 23, 2009
|
Robert N. McFarland
|
|
|
|
|
|
|
|
|
|
|
/s/ Kevin M. Hackett
|
|
Chief Financial Officer and
|
|
March 23, 2009
|
Kevin M. Hackett
|
|
Secretary (Principal financial and accounting officer)
|
|
|
45
Table of Contents
EZENIA! INC.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Column A Description
|
|
Column B
|
|
Column C Additions
|
|
Column D
|
|
Column E
|
|
Accounts Receivable Allowances
|
|
Balance At
Beginning
Of Period
|
|
Charged
(Credited)
to Costs and
Expenses
|
|
Charged
(credited) to
Other
Accounts
|
|
Deductions
Uncollectible
Accounts
Written-off
|
|
Balance at
End of
Period
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2008
|
|
$
|
412,909
|
|
|
|
(67,171
|
)(1)
|
317,488
|
(2)
|
$
|
28,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2007
|
|
$
|
412,909
|
|
|
|
|
|
|
|
$
|
412,909
|
|
(1)
Relates to the release of revenue-related reserves upon the completion
of Product Development contract audits
(2)
Write-off of accounts receivable related to video equipment sales prior
to 2006
46
Table of Contents
Exhibit Index
Exhibit
Number
|
|
Description of Exhibit
|
|
|
|
3.1(1)
|
|
Amended and Restated Certificate
of Incorporation of the Registrant.
|
3.2(11)
|
|
Certificate of
Designations, Preferences and Rights of a Series of Preferred Stock of
the Registrant classifying and designating the Series D Junior
Participating Cumulative Preferred Stock
|
3.3(1)
|
|
Amended and Restated
By-Laws of the Registrant.
|
4.1(1)
|
|
Specimen Stock
Certificate.
|
4.2(12)
|
|
Shareholder
Rights Agreement, dated as of April 15, 2008, between Ezenia! Inc. and
Computershare Trust Company, N.A., as Rights Agent
|
10.1(1)+
|
|
Amended and Restated 1991
Stock Incentive Plan of the Registrant.
|
10.2(1)
|
|
Amended and Restated 1994
Non-Employee Director Option Plan of the Registrant.
|
10.3(1)+
|
|
1995 Employee Stock
Purchase Plan of the Registrant.
|
10.4(8)+
|
|
2004 Stock Incentive Plan
|
10.5(1)
|
|
License Agreement dated
January 2, 1995 between the Registrant and Datapoint Corporation.
|
10.6(1)
|
|
Letter Agreement dated
December 31, 1994 between the Registrant and Fleet Bank of
Massachusetts, N.A.
|
10.7(2)+
|
|
Employment Agreement dated
as of November 9, 2007 between the Registrant and Khoa D. Nguyen.
|
10.8+
|
|
First Amendment to Employment Agreement between the
Registrant and Khoa D. Nguyen, dated December 11, 2008
|
10.9(3)
|
|
Asset Purchase Agreement
dated as of December 28, 2000 between the Registrant and General Dynamics
Government Systems Corporation, as amended.
|
10.10(a)(4)
|
|
Put Agreement dated as of
March 27, 2001 (as amended to date) by and between the Registrant and
General Dynamics Government Systems Corporation.
|
10.10(b)(7)
|
|
Agreement and Release
dated as of December 31, 2002 by and between the Registrant and General
Dynamics Government Systems Corporation.
|
10.11(5)+
|
|
2001 Stock Incentive Plan
of the Registrant.
|
10.12(6)
|
|
Asset Purchase Agreement
dated as of August 1, 2002 between the Registrant and Tandberg Telecom
AS.
|
10.13(6)
|
|
License Agreement dated as
of August 1, 2002 between the Registrant and Telecom AS.
|
10.14(6)
|
|
Promissory Note dated as
of August 1, 2002 made by the Registrant in favor Tandberg Telecom AS.
|
10.15(6)
|
|
Security Agreement dated
as of August 1, 2002 between the Registrant and Tandberg Telecom AS.
|
10.16(6)
|
|
Ezenia! License Agreement
dated as of October 30, 2002 between the Registrant Tandberg Telecom AS.
|
10.17(9)
|
|
First Amended and Restated
Software Distribution License Agreement dated January 1, 2005 by and between
Microsoft Corporation and Ezenia! Inc.
|
10.18(10)
|
|
Amendment to First Amended
and Restated Software Distribution License Agreement by and between Microsoft
Corporation and Ezenia! Inc. dated April 2007.
|
10.19(11)
|
|
Amendment to First Amended
and Restated Software Distribution License Agreement by and between Microsoft
Corporation and Ezenia! Inc. dated December 2008.
|
10.20+
|
|
The Ezenia! Inc. Deferred Compensation Plan, as
amended and restated as of December 11, 2008
|
21.1
|
|
Subsidiaries of the
Registrant.
|
23.2
|
|
Consent of Vitale,
Caturano & Company, Ltd.
|
31.1
|
|
Consent of the Companys
Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
31.2
|
|
Consent of the Companys
Chief Financial Officer pursuant to 18 U. S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
47
Table of Contents
32.1
|
|
Certification of the
Companys Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
32.2
|
|
Certification of the
Companys Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
+
|
|
Management contract for
compensatory plan or arrangement required to be filed as an exhibit to this
report pursuant to Item 15(c) of this report.
|
(1)
|
|
Incorporated by reference
from the Companys Registration Statement on Form S-1.
|
(2)
|
|
Incorporated by reference
from the Companys Form 8-K filed with the Securities and Exchange
Commission on November 14, 2007.
|
(3)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and Exchange
Commission for the year ended December 31, 2000.
|
(4)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended September 30,
2001.
|
(5)
|
|
Incorporated by reference
from the Companys Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on December 21, 2001.
|
(6)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended September 30,
2002.
|
(7)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and Exchange
Commission for the year ended December 31, 2002.
|
(8)
|
|
Incorporated by reference
from the Companys Form 10-K/A filed with the Securities and Exchange
Commission for the year ended December 31, 2004.
|
(9)
|
|
Incorporated by reference
from the Companys Form 10-Q for the quarter ended March 31, 2005.
|
(10)
|
|
Incorporated by reference
from the Companys Form 10-K filed with the Securities and Exchange
Commission for the year ended December 31, 2007.
|
(11)
|
|
Incorporated by reference
from the Companys Registration Statement on Form 8-A, filed with the
Securities and Exchange Commission on April 21, 2008 (File
No. 000-25882)).
|
(12)
|
|
Incorporated herein by
reference to the Companys Registration Statement on Form 8-A, filed
with the Securities and Exchange Commission on April 21, 2008 (File
No. 000-25882)).
|
48
Ezenia (CE) (USOTC:EZEN)
과거 데이터 주식 차트
부터 6월(6) 2024 으로 7월(7) 2024
Ezenia (CE) (USOTC:EZEN)
과거 데이터 주식 차트
부터 7월(7) 2023 으로 7월(7) 2024