UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
(Mark One)
x ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended May 31, 2008
o TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to ______________
Commission file number: 0-27587
ARKADOS GROUP, INC.
(Exact name of registrant as specified in its charter)
| Delaware | | 22-3586087 |
| (State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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| 220 Old New Brunswick Road, Piscataway, NJ | | 08854 |
| (Address of principal executive offices) | | Zip code |
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| Issuer's telephone number: (732) 465-9300 | | |
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| Securities registered under Section 12(b) of the Exchange Act: |
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| Title of each class | | Name of each exchange on which registered |
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| Securities registered under Section 12(g) of the Exchange Act: |
Common Stock, $.0001 par value
(Title of class)
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
o Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.
o Yes x No
Indicate by a 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 registrant’s 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. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer. (See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act). (Check one):
Large accelerated filer o Non-Accelerated filer o | Accelerated filer o Smaller reporting company x |
Indicate by check mark wither 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 equity held by non-affiliates1 computed by reference to the price at which the common equity was last sold on September 11, 2008 was $ 4,326,233.
The number of shares of common stock outstanding as of the latest practicable date, September 12, 2008, was 30,535,147.
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(1) The information provided shall in no way be construed as an admission that any person whose holdings are excluded from the figure is not an affiliate or that any person whose holdings are included is an affiliate and any such admission is hereby disclaimed.
FISCAL 2008 FORM 10-K
INDEX
| Item | Page |
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| PART I | |
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| ITEM 1: Business | 4 |
| ITEM 1A: Risk Factors | 22 |
| ITEM 1B: Unresolved Staff Comments | 33 |
| ITEM 2: Properties | 34 |
| ITEM 3: Legal Proceedings | 34 |
| ITEM 4: Submission of Matters to a Vote of Security Holders | 34 |
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| PART II | |
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| ITEM 5: Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities | 35 |
| ITEM 6: Selected Financial Data | 37 |
| ITEM 7: Management’s Discussion and Analysis of Financial Condition and Results of Operations | 38 |
| ITEM 7A:Quantitative and Qualitative Disclosures About Market Risk | 42 |
| ITEM 8: Financial Statements and Supplementary Data | 42 |
| ITEM 9: Changes in and Disagreements with Accountants on Accounting and Financial Disclosure | 44 |
| ITEM 9A:Controls and Procedures | 44 |
| ITEM 9B: Other Information | 45 |
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| PART III | |
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| ITEM 10: Directors, Executive Officers and Corporate Governance | 46 |
| ITEM 11: Executive Compensation | 46 |
| ITEM 12: Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 46 |
| ITEM 13: Certain Relationships and Related Transactions, and Director Independence | 46 |
| ITEM 14: Principal Accountant Fees and Services | 46 |
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| PART IV | |
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| ITEM 15: Exhibits and Financial Statement Schedules | 47 |
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| Signatures | 55 |
As used in this Annual Report on Form 10-K, the terms “we”, “our” or “us” mean Arkados Group, Inc., a Delaware corporation and its consolidated subsidiaries, unless the context indicates otherwise.
NOTE RE: FORWARD LOOKING INFORMATION
All statements in this annual report on Form 10-K that are not historical are forward-looking statements, including statements regarding our “expectations,” “beliefs,” “hopes,” “intentions,” “strategies,” or the like. Such statements are based on management’s current expectations and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those set forth or implied by any forward looking statements. Some of these risks are detailed in Part I, Item 1A “Risk Factors” and elsewhere in this report. We caution investors that there can be no assurance that actual results or business conditions will not differ materially from those projected or suggested in such forward-looking statements as a result of various factors, including, but not limited to, the risk factors discussed in this Annual Report on Form 10-K. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions, or circumstances on which any such statements are based.
This Annual Report on Form 10-K contains registered and unregistered trademarks of Arkados Group, Inc and its subsidiaries and other companies, as indicated. Unless otherwise clear from the context or noted in this Annual Report, marks identified by “®” and “™” are registered marks and trademarks of Arkados Group, Inc. or its subsidiaries. All other trademarks and service marks are the property of their respective owners. iPod® is a registered trademark of Apple Computer, Inc. HomePlug® is a registered trademark of the HomePlug Powerline Alliance, of which Arkados is a member.
General
The registrant, Arkados Group, Inc., was incorporated in the State of Delaware in 1998.
We are principally engaged in developing and marketing technology and solutions enabling broadband communication, multimedia, and networking over standard household electrical lines. We conduct these activities principally through Arkados, Inc., which is a wholly owned subsidiary. In September 2006, we changed our corporate name from CDKnet.com, Inc., to its current form to align our corporate identity with the “Arkados” brand developed by our subsidiary. Our Arkados subsidiary is a member of the HomePlug Powerline Alliance, an independent trade organization which has developed global specifications for high-speed powerline communications.
Our executive offices are located at 220 Old New Brunswick Road, Piscataway, NJ 08854. We can be reached at our principal offices by telephone at (732) 465-9300. Arkados maintains a website at www.arkados.com.
Except for the documents on our website that are expressly incorporated by reference into this report, the information contained on our website is not incorporated by reference into this report and should not be considered to be a part of this report. This includes the website referred to in the paragraph above, as well as other websites that we refer to elsewhere in this report. All of these website addresses are included in this document as inactive textual references only.
Available Information
We file annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and all other reports, and amendments to these reports, required of public companies with the SEC. The public may read and copy the materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website at http://www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. Copies of our fiscal 2008 Form 10-K may also be obtained without charge by mailing a request to us at 220 Old New Brunswick Road, Piscataway, NJ 08854 or by calling us at (732) 465-9300.
Overview
Arkados provides hardware/software engines for a wide variety of products that enable high-speed digital transmission of music, movies, video, voice, and broadband data over the existing infrastructure of electrical power lines.
By combining our system-on-chip (SoC) semiconductors with software and hardware platform designs, our solutions address diverse target markets in a number of growing market categories.
Significant recent developments include our beginning the transition from development stage company by generating $855,676 of revenue in the fiscal year ended May 31, 2008, obtaining a second extension of convertible subordinated notes (now due June 30, 2009), obtaining a limited waiver of anti-dilution rights held the holders of secured convertible notes to facilitate equity financing, and the addition of Harris Cohen to our board of directors.
We have designed our turnkey solutions to be used inside products for both consumers and industry. For example, consumer products can use Arkados solutions as part of a connected home entertainment and computing network, while industry can implement Arkados solutions as a part of a utility company’s “smart grid” and “green energy” solutions.
We are a “fabless” semiconductor company, meaning we design semiconductors without the capital requirements of owning and operating a fabrication facility. Our semiconductors are made from our designs by independent fabricators. We offer value to our customers by providing hardware and software as a complete design solution that allows them to
build devices that will distribute audio, video, voice, and data content throughout the whole house, building, or “smart-grid” infrastructure.
Arkados Products
Our highly integrated semiconductors provide the internet or network connections over existing electric lines for new consumer electronic products (such as stereo systems, television sets, intercoms and personal iPods®). Our solutions can also be used for bridging legacy products with newer home networking and broadband communications technologies.
Arkados’ solutions offer a completely different approach than our competitors. Our solutions incorporate a processor and multiple interfaces into the same chip that houses HomePlug communication technology, as well as, provide application level software that runs on the chip, We believe this “system-on-a-chip” approach provides a more cost-effective and more flexible strategy to bring products to market for our customers.
Customer-focused Product Approach
While a major component of our solutions is the ability for communication over power lines, our SoC and software provides the foundation for the full realization of a customer’s products. Our unique approach in designing our SoCs and software allows our customers great flexibility in building products, while also shortening their time-to-market and reducing their costs. For our direct customers, using Arkados solutions means they can bring sophisticated and full-featured products to market faster at a lower overall development cost by using a single standards-based platform: Arkados’ versatile and programmable ArkTIC® platform.
Arkados’ chip and software architecture was developed based upon specifications from the HomePlug Powerline Alliance standard and, unlike products from its competitors, our solutions will be extensible and scalable to HomePlug AV technology and further to IEEE1901 standards. This product strategy allows Arkados’ customers to easily port their applications to higher speed architectures.
Excellent User Experience
Products that use our semiconductors are easy-to-install and easy-to-use since they create connectivity through the existing electrical outlets and electrical wires. For the end user, products that use Arkados solutions connect to each other by simply plugging in, while also being reliable and secure. Arkados solutions leverage the benefits of standard powerline communications technologies that are used worldwide for in-building consumer electronics and home-based systems, and to-the-home Broadband Powerline (“BPL”) and Smart Grid applications.
Arkados recently added to its product line by offering a license to an implementation of the 802.15.3b Wireless Multimedia MAC. The license is available to any developer interested in jumpstarting their development process, and bringing digital home multimedia products to market more quickly.
Technology
Arkados is committed to building standards based solutions. Currently, Arkados’ SoC are based on the specifications developed by the HomePlug Powerline Alliance and TIA-1113 standards. In the future, Arkados plans to support IEEE P1901 and ITU G.hn standards when they become available. Arkados has been active in standards development since 2000.
System-on-Chip Semiconductors
Arkados has a number of design wins that employ our first SoC, the Arkados AI-1100, which we started marketing in Fiscal 2007. The device supports applications such as whole-house music streaming, whole-house internet access, and can be used in IPTV set-top boxes designed to decode and display standard definition video content -- from sources as varied as surveillance cameras and YouTube -- on regular TVs throughout the home. This turnkey solution fetures a programmable MAC and an on-chip ARM 9 application processor. Its fully HomePlug 1.0 compliant MAC/PHY and Arkados extensions and software provide increased performance and future proofing.
The AI-1100 chip offers a single-chip integration of HomePlug 1.0.1 powerline technology, ARM 926-JES CPU operating at 160 MHz, dual Ethernet interfaces, I 2S Audio Interface, and a wide variety of other interfaces designed to support connected home applications. Furthermore, the programmable nature of our implementation allows ODMs/OEMs to extend the functionality of these products and HomePlug technology.
Our next generation SoC, the AI-2100, will be backwards compatible with our current chip and it will feature an enhanced embedded Quality of Service (QoS) engine which supports video flows for low jitter, lip synch and low latency delivery. Arkados’ architecture also features a programmable, flexible MAC which may be configured for unique applications or field upgradeable. In addition, the architecture results in a reduced bill of materials (BOM), allowing the production of fully featured products at a lower cost.
Software
Today’s digital products are incomplete without an array of software components that enable both device-to-device communications and robust product features. Arkados services our customers by providing a host of software components that run directly on our chips, further eliminating development time for our customers. These software components include application-level features (such as our Direct-to-Speaker™ multi-channel audio synchronization, networking and internet, online gaming, etc.) embedded application support software (audio compression/decompression, internet radio support, GUI support, video drivers, etc.), Quality of Service engine, traffic management, and TCP/IP components.
Market Opportunities
Arkados solutions contribute to several large markets each of which is global, broad, and deep. The retail consumer electronics market, the whole-home custom installation market, the smart grid market, and the subscription services market combine to form a very broad potential base for Arkados solutions.
The following is a brief compendium of publically available quotes that echo our beliefs in the strength of Arkados’ target markets:
| · | Retail Consumer Electronics for the Digital Home Market |
| o | ABI Research: “Total network-enabled consumer electronics and media devices shipments are expected to grow from 92 million in 2007 to nearly 460 million by 2012, exceeding the 368 million network-enabled home gateways, routers, network adapters and home network storage products shipped the same year.” (10/18/2007) |
| o | ABI Research: “Networked Home Audio Market to Hit $7.2 Billion by 2012” (4/17/2007) |
| o | Multimedia Intelligence as quoted by EETimes magazine: “By 2012, as consumer electronics manufacturers and operators gradually add IP connectivity across a broad array of equipment,” the analyst forecasts “the market for the resulting network interface semiconductors growing to nearly $2.5 billion.” They continue, “With more than 60 million IP-enabled consumer electronics devices shipped into the market in 2007, the semiconductors underlying that connectivity already represent more than $560 million in annual revenues. The total includes the media-access control (MAC), physical interface (PHY) and related support chips.” (7/2007) |
| o | iSuppli: “the worldwide home networking silicon total available market is expected to grow from $1.1 billion in 2007 to $3.1 billion in 2011, representing a compounded annual growth rate of approximately 29%.” (7/2007) |
| · | Smart-Grid and Utility Applications Market |
| o | From EDN Magazine: “in the electric industry alone, 500 million meters worldwide could be replaced over the next 10 years, resulting in semiconductor sales of at least $7.5 billion, according to Mark Buccini, director of strategic marketing for Texas Instruments’ microcontroller products.” And continues to say “a large number of those will be connected to a home area network, and that home network will have at least one device that can talk to the meter,” and that “the communications piece is as much as three times as big [as the $7.5B market for meters].” (6/24/2008) |
| o | Techno Systems Research predicts a 106.4% CAGR for SmartGrid/Broadband Powerline markets from 2005-2011. (12/2007) |
| · | Subscription and “over the top” Services |
| | Many services currently available, from remotely-monitored security, to piped-in music, to health monitoring systems require costly professional installation for communication and distribution. With the addition of a broadband pipe to the house, and the use of an in-home distribution method such as Arkados solutions provide, over-the-top (OTT) this type of solution allows the content owners to deliver the content directly to consumers. |
| o | The Diffusion Group: “TDG found that 40% of broadband users are watching at least an hour of video per week on the Internet. More surprising is that 30% of those are watching 25% or more of their TV online. Imagine what will happen when tens of millions of households are capable of watching broadband video on their big-screen, high-dollar, high-definition TVs and home theater systems.” (5/2008) |
| o | Harbor Research: “The ability to monitor, repair and control equipment remotely over the Internet….. has changed the concept of service for manufacturers in key industries around the world…..These new services represent a multi-billion dollar opportunity. Market growth is also extremely strong.”(3/2006) |
The Growing Digital Home: Networked Consumer Electronics
As broadband access to the home is becoming ubiquitous, home networking and connectivity demands for digital home applications continues to grow – extending the internet, and the services that travel on it, to every corner of the house.
The promise of sending digital communications over common power lines is now being realized, and Arkados’ products serve several large and growing markets: retail consumer electronic products, whole-house audio installations, smart-grid utility company applications, broadband-over-powerline internet access, and the distribution of internet-based services.
The Arkados AI-1100 is the first HomePlug 1.0 compliant system-on-chip targeted for the retail consumer electronics market. Coupled with software to create full turnkey solutions for its customers, the Arkados AI-1100 has already received a number of design wins, and is the engine behind the creation of reasonably-priced multi-room audio and video distribution products for the retail consumer market. Products coming to market soon will feature iPod® docking stations and powered speakers that can be placed anywhere in the home, with no additional wiring needed.
As a subset of this market, the whole-house audio market category has been particularly active. Arkados’ solutions offer a way to create retail audio systems with features and functionality heretofore available only in multi-thousand dollar custom audio installations. Arkados’ customers include Devolo AG, Channel Vision, IOGEAR, Gigafast, Tatung, and Zinwell. Higher product volumes are expected to be realized in fiscal 2009 and customers move their products from development into the marketplace.
In addition providing the connectivity engine for these retail consumer products, Arkados provides solutions for custom and self installation high-end consumer systems. These high-end custom audio systems, which address the existing home market (expanding from their primary market target of newly constructed homes), can feature as many as 8 separate audio zones and can process a wide range of sources of audio content which can be streamed from any digital or legacy analog source. Russound, a leading custom multi-room audio distribution system manufacturer, has selected the AI-1100 for use in its iBridge Power Dock. Arkados has received initial volume commitments and NRE’s (Non-Recurring Engineering) valued over $1.2 million from customers in this area, of which over $641,000 has been recognized through May 31, 2008. Arkados’ chips can also power cameras, video endpoints, and sensors for other installed home systems, such as for surveillance systems.
Smart Energy and Utility Company Applications
Another large potential market for Arkados’ solutions relates to energy conservation, the “green” applications that help utility companies and their customers save both money and energy. For example, “Smart Grid” applications (Green Energy, demand response, energy efficiency and grid modernization – i.e., reduction of carbon emissions) and home/building automation, such as controlling air conditioner thermostats remotely, represent large and attractive opportunities given today’s surging energy costs. Arkados has design wins at MainNet (which has the largest installed base of business power line solutions in the world) and Corporate Systems Engineering, with significant volumes already committed.
Services
An additional immediate potential market for the Arkados platform is for subscription music services. Its software and chips enable the distribution of Internet music services (e.g., Rhapsody, Yahoo! Music, AOL Music, Shoutcast services). The Company is actively working on reference designs and business strategies to address this rapidly developing market.
Corporate Background
On May 24, 2004, we filed a merger certificate completing the acquisition of Miletos, Inc., a previously unaffiliated Delaware corporation (the “Merger”). The consideration for this Merger was 16,090,577 restricted shares of our common stock and the assumption of certain liabilities of Miletos’ predecessor and former controlling equity holders. The merger was completed according to the terms of an Agreement and Plan of Merger dated as of May 7, 2004. Miletos merged into a wholly owned subsidiary we formed for the merger which then changed its name to “Arkados, Inc.”.
Simultaneously with the merger, we completed a private placement of 883,334 shares of our common stock for aggregate proceeds of $1,060,000, of which approximately $950,000 were subscriptions for cash, $50,000 (41,667 shares) was for outstanding debt of Arkados, and $59,800 (49,834 shares) was in lieu of consulting fees. The sale was made to 10 accredited investors (“Investors”) directly by us without any general solicitation or broker. The offering is claimed to be exempt from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended. In addition, we settled liabilities relating to outstanding convertible notes and payables for 700,000 common shares.
Prior to the Merger, on March 23, 2004, Miletos acquired the assets and business of Enikia, LLC, a Delaware limited liability company at a public foreclosure sale, including the intellectual property upon which Arkados’ development efforts are based. Miletos was formed in February 2004, by control affiliates of Enikia. These control affiliates were both secured creditors of Enikia and holders of the controlling equity interest in Enikia. They contributed a secured promissory note to Miletos in the initial principal amount of $9,221,000, dated June 1, 2002. The promissory note also represents obligations to the lender for additional advances to Enikia by the control group which brought the aggregate principal due at the time of foreclosure to approximately $11,100,000. At the foreclosure sale, Miletos forgave $4,000,000 of the secured obligation in exchange for substantially all of the assets of Enikia. The merger has been treated as a reorganization of Arkados, Inc. via a reverse merger with Arkados Group, Inc. The assets acquired at the foreclosure sale and certain liabilities assumed by Arkados Group, Inc. have been recorded as historical cost.
On March 3, 2007 we completed the merger of Arkados Wireless Technologies, Inc., our wholly owned subsidiary (“Merger Sub”) with Aster Wireless, Inc. a Delaware corporation (“Aster”) pursuant to an Agreement and Plan of Merger dated February 13, 2007 by and among Merger Sub and Arkados Group, Inc. In this merger, we acquired synergistic talent and technology which has helped improve the reliability and quality of audio streaming in our current generation chipset and we believe will help deliver our next-generation chips to market more quickly, with richer capabilities. This will translate to a better competitive position in the marketplace. The technology enhances the reliable distribution of multimedia content, potentially over multiple distribution media, and is designed to be embedded in new consumer electronics products and accessories for audio, video distribution, set-top boxes and other multimedia entertainment appliances.
Dependence on Financing Activities
Although we have started to generate revenue during the past two years, we continue to be dependent on outside sources of financing to continue the development of our semiconductors and software, and to further support sales. During fiscal 2008, we completed a series of debt financings in the aggregate principal amount of $855,000; we also issued notes in the amount of $125,000 which were converted into equity in August 2008. Andreas Typaldos, our Chairman and one other Director loaned the Company $177,700.
From June 1, 2008 to August 31, 2008, we received approximately $649,000 which was converted into equity in August 2008. In addition, we received an additional $20,000 which represents borrowings from related parties.
We have sought and will continue to seek various sources of financing but there are no binding commitments from anyone to provide us with financing. In addition, there is $11,383,261 principal amount of 6% Secured Convertible Debentures due June 28, 2009 (initially due December 28, 2008) issued during the period from December 2004 to August 31, 2008 outstanding, which has been an impediment to obtaining equity financing . The documents were amended in January 2007 to eliminate the requirement that the holders of 60.1% of the outstanding principal amount consent to our issuance of shares, debt or fixed convertible securities to finance our operations, continue to contain a full “ratchet down” provision which has a dilutive effect, which is triggered by future financing at an effective price lower than the conversion and warrant exercise price.
In July 2008, we reached an agreement with the holders of the Secured Debentures which extended the due date to June 28, 2009 (which may be further extended if we raise equity financing of more than $2 million before maturity), capitalizing interest until the Secured Debentures are due and waiving the ratchet down anti-dilution adjustment for certain equity financings completed before October 31, 2008. In exchange for these amendments the Company will exchange:
| · | new debentures for 25% of the outstanding principal amount of Secured Debentures ($2,845,815.25) having identical rights as the Secured Debentures, except that the conversion price is $0.25 rather than $0.85 and |
| · | new warrants for 25% of the existing warrants held by the holders of the Secured Debentures (2,332,131), identical to the warrants surrendered, except that the warrant exercise price is $0.25 rather than $0.85 and the new warrants are only exercisable for cash until December 1, 2008. |
On August 7, 2008, we issued 1,690.080 units (each consisting of two shares of our common stock and one warrant) to 18 accredited investors for aggregate consideration of $845,038.47. Of this consideration $762,593.66 was cash or cash advances made to us after April 15, 2008 and the balance was in exchange for prior obligations for borrowed money and other accounts payable. The warrants are exercisable until June 30. 2013 and entitle the holder to acquire one additional share of our common stock for $0.25 per share.
While a substantial portion of the net proceeds of these financing activities was initially used to repay pre-existing debt, all of the proceeds during the fiscal year 2008 were used to support Arkados’ operations. There is no assurance that the holders of the Secured Debentures will continue to provide additional funds to us, that future equity financing will be available or that future financing will not be impeded by the anti-dilution provisions of the documents. Our ability to continue our operations depends on our ability to obtain financing. If adequate funds are not available on acceptable terms, we may not be able to retain existing and/or attract new employees, support product development and fabrication, take advantage of market opportunities, develop or enhance new products, pursue acquisitions that would complement our existing product offerings or enhance our technical capabilities to develop new products or execute our business strategy.
Industry Background
Music, movies, and a wide range of communication services are experiencing a fundamental shift. The distribution of content to products, and in some cases the products themselves, is transitioning from traditional methods. Digital content is requires a new digital distribution model.
Arkados’ Standards-based Solutions
Arkados’ solutions directly address this opportunity by enabling electrical power sockets to be turned into high-speed network ports, thereby providing a high-speed pathway through which digital information can travel both inside a home, and to the home. We believe that this shift creates demand for new products, and new products will require new types of semiconductors that incorporate digital technologies, supporting such functions as communication and media rendering.
Our ArkTIC® family of turnkey hardware and software solutions is designed to address these requirements. In particular, Arkados has implemented a method that uses power lines as a pathway for digital information, allowing end users to truly achieve “plug-and-play” simplicity without the hassles of custom-installed networks, or the dropouts, unreliable coverage and security issues of wireless solutions.
Standards-compliance Creates Market and Product Confidence
Members of the Arkados team have been active in establishing standards for the powerline communications industry since the year 2000. Standards are important in many industries. For example, wireless standards have brought about a ubiquitous, interoperable and affordable standard for portable data communication.
Standards are important for a number of reasons, but especially when both consumers and service providers may be installing different pieces of the ecosystem – as in the powerline communications industry.
Members of the Arkados team participated in the creation of the HomePlug Powerline Alliance, an independent industry
association. The Alliance’s mission is to enable and promote rapid availability, adoption and implementation of cost effective, interoperable and standards-based home powerline networks and products. Formed in 2000, the Alliance developed the HomePlug 1.0 specification that unified product vendors in support of a single powerline solution for home networking. Later, in 2008, the technology of the HomePlug 1.0 specification was adapted by the Telecommunication Industry Association as TIA-1113 standard. In 2005, the Alliance ratified HomePlug AV specification that is going to enable 200Mbps class communication over power lines.
In-Stat believes that HomePlug AV will be a potentially important technology for multimedia networking, as the technology could provide a home network backbone. Arkados has worked in significant ways to develop the HomePlug specifications including HomePlug 1.0 and HomePlug AV for in-home technologies, HomePlug BPL for broadband over powerline, and HomePlug Command &Control (C&C) for low-speed command and control applications.
Arkados is a Contributing Member of the HomePlug alliance. Members of the Arkados team hold leadership positions in the Alliance and in several HomePlug working groups. Oleg Logvinov, our president and CEO, serves as the Chief Strategy Officer of the HomePlug Alliance. Mr. Logvinov is also a past president of the Alliance, having been succeeded by Matthew Theall of Intel. Additionally, Jim Reeber, our Director of Marketing has served as Chair of Marketing Working Group since 2003, and Grant Ogata, our Executive Vice President of Worldwide Operations, served as the Chairman of HomePlug Command and Control Working Group and was instrumental in spearheading the alliance’s efforts to develop a specification for a low-cost command and control technology in his role as the working group chair.
The HomePlug technology now dominates the marketplace. Market analyst In-Stat forecasted that by 2010, the technology based on HomePlug specifications will hold 85% of the worldwide market for powerline communications. The HomePlug Powerline Alliance has brought together both personal computer and consumer electronics companies on a global scale. Membership in the Alliance has grown to include nearly 70 industry-leading companies. HomePlug Sponsor companies include Cisco; Comcast; GE Energy., part of General Electric Co.; Intel Corporation; LG Electronics; Motorola; Sharp Laboratories of America; and Texas Instruments Incorporated (TI). Besides Arkados, contributor members include Corporate Systems Engineering; Gigle Semiconductor; Intellon Corporation; SPiDCOM Technologies; and YiTran Communications.
Arkados is also a member of the IEEE P1901 group that is focused on the development of powerline communication Physical Layer (PHY) and Media Access Control (MAC) specifications. Working with the HomePlug Powerline Alliance, the Arkados team has contributed to the development of a number of specifications that were contributed to standards organizations, such as the Telecommunications Industry Association.
The Strategy behind Arkados Solutions
We are a fabless semiconductor company that develops comprehensive platform solutions, including system-on-chip (SoC) semiconductors, and firmware and software for manufacturers of networked multimedia appliances and feature-rich networking devices. Our platform solutions are designed to enable a systems-based approach to networking and will allow our customers to build products that are simple and intuitive to install, and easy to operate with intuitive and customizable user interfaces.
We believe that many of our customers plan to produce not just one standalone device, but they will introduce many system components that work together. An example is the audio market; our customers would not just introduce a dock for an MP3 player, but would also produce a variety of speakers, control units, CD players, adapters, boom-box style rendering points, etc. Our solutions enable greater versatility and value that allows our customers to create each of those components, sometimes with only a single hardware design.
The primary goal of our solutions is to enable our customers’ plan to develop and sell end-user systems. Our customers require a lower Bill of Materials (their cost for manufacturing a product), and better ways to produce a variety of components for end-user systems more quickly. We call our solutions “turnkey” because they enable our customers to create entire lines of products without dedicating their resources to long product development cycles, or extensive software design.
Our customers are also aware of our strategy to support a seamless transition to higher-speed technologies as they become available. This promotes long life-span of their development effort, and creates significant re-use of their software components.
Inside our SoC, we have included a powerful processor that allows applications to be run directly on-chip. Multiple vertical applications can be built by loading different firmware. This feature can broaden product offerings, and extend the product lifecycle. The Arkados implementation of HomePlug technology offers programmability that enables OEMs to extend the functionality of their products and produce a variety of products from a single design.
Key elements of our solution are as follows:
| Comprehensive platform solutions. |
| | Our platform solutions consist of an integrated package of hardware, firmware and software designed to enable our customers to develop differentiated products in a cost-effective manner with short time-to-market. In addition to a high-performance SoC, we plan to provide our customers with customizable, high functionality firmware and software development kits to allow them to rapidly develop and differentiate their products. As a result, we would be able to reduce our customers’ investment in costly and time-consuming internal firmware and software development for their products, and from having to source different firmware and software for their end products from multiple suppliers. |
| · | Customizable firmware and software. |
| | Our firmware, which is sold as a bundled solution with our SoCs, includes a real-time operating system and a set of application specific modules that support a wide range of functions including Web-based management, audio distribution, traffic classifications, etc. Our software platform includes a comprehensive suite of components, such as device link libraries and drivers, tools, sample code and documentation to create applications that would allow a wide range of networking devices and networked multimedia appliances. |
| Targeted, high-performance SoCs. |
| | Our SoC solutions are specifically designed for the powerline communication market. They are driven by function-specific blocks that allow simultaneous execution of complex operations, such as transmission of data over power lines and MPEG audio decoding and playback. Our SoCs support most major peripheral connection protocols, including USB, Ethernet, Infrared, I2S, and a number of specialized and general purpose interfaces. This support enables connectivity to a variety of playback, display and content creation devices including cameras, PCs, televisions and car and home audio systems. |
In contrast, competitors that do not provide comprehensive platform solutions such as ours may be able to produce a greater variety of customized ICs to more specifically address the particular requirements of an OEM. In addition, solutions which do not include customizable firmware and software like ours may allow OEMs to take advantage of a wider range of third-party developers. While, these alternative solutions may be lower in cost for simple data networking devices in comparison to our platform solutions, our solution will be more cost effective and has higher reliability and performance for multi-media networking including distributing audio and video throughout the home and outputting to existing consumer electronic products.
Key Strategic Elements
Provided we are able to continue to finance our operations, our objective is to be the leading supplier of comprehensive platform solutions for high-performance and feature-rich networked multimedia appliances and networking devices.
Key elements of our strategy are:
| · | Maintain a full platform solution approach with industry-leading SoCs, firmware and software. |
| | | We plan to continue to commit the resources of each of our hardware, firmware and software teams to drive innovation so that our solutions are at the forefront of the networked multimedia appliances and networking devices industries and capture a leading market share. We intend to continue to devote resources to increase the performance and functionality of our SoCs and expand the features and capabilities of our firmware and software. This enables great flexibility and value for our customers as they take products to consumer and enterprise markets. |
| · | Maintain our focus on feature-rich networked multimedia appliances and networking devices. |
| | | We intend to build on our experience as a platform provider by continuing to focus primarily on customers that produce feature-rich networked multimedia appliances and networking devices. In addition, we intend to continue to work closely with manufacturers of other media rendering components to ensure that our platform solutions interface with their current and future technology components for optimal performance their end products. |
| · | Maintain our focus on the integration of powerline and audio rendering functions to secure the leadership position in networked multimedia appliances and networking devices. |
| | | We believe that the networked audio markets will continue to represent the largest near-term volume opportunity for networked multimedia appliance and networking device manufacturers. We intend to continue to focus on advancing functionality and promoting our solutions to win designs in this large and growing market. By including these options in our platform, we create a foundation that enables our customers to incorporate new features more quickly. |
| · | Enable new growth markets, such as photo- and video-enabled networked multimedia appliances. |
| | | We intend to build on our existing expertise to be the leading provider of comprehensive platform solutions in new markets. We intend to continue to invest our research and development efforts and engineering resources to develop new platforms and products and to strengthen our technological expertise. One example is our reference design that employs both our solutions as well as Blackfin® Processors by Analog Devices to provide a cost- effective platform for a variety of video applications based on powerline distribution. We believe that our focus in this area creates optimized solutions for our customers and increases the revenue potential for companies throughout the value chain. |
| · | Expand our customer base while securing additional design wins with existing customers. |
| | | We plan to be the leading supplier of new designs to our existing customers, and to secure a high market share with new customers entering this market. We intend to continue the expansion of our customer base by marketing our platform solutions to additional manufacturers of consumer devices. Further, we intend to broaden our reach within our existing customer base into their adjacent product lines that can utilize technologies that we intend to implement in the near future. By providing key hardware and software components to our customers, we believe we can deliver better value and features to our customers, while reducing design and manufacturing costs. |
| | Create business arrangements with companies to better serve our common OEM customers. |
| | | We plan to go to market together with a number of companies who target specific areas of the marketplace. Since certain companies pursue many of the same customers who approve the products destined for the end-user, we plan to take advantage of this communality and together create solutions and offer even greater turnkey value. This approach offers OEM customers an easier point-of-contact and allows them to take advantage of efficiencies we have already built with our partners. |
Our Products
We design and develop and are marketing highly integrated SoC semiconductors that are designed to cater to the markets for powerline communications. Our chip designs offer flexible solutions through programmability and remote firmware upgrades. Our customers have responded very favorably to our platform offerings which we call ArkTIC®, which is an acronym for the Arkados Total Integration Concept.
Solutions from our ArkTIC® family of converged multimedia and networking solutions targets data-, audio-, photo-, and video-enabled networked multimedia appliances and networking devices.
The ArkTIC® family is a portfolio of turnkey hardware and software solutions that enable OEMs and ODMs to quickly develop digitally networked consumer electronic products with a competitive cost structure to address this rapidly developing market. Among other networking interfaces, the first member of the ArkTIC® family will supports a powerline communication interface based on the HomePlug Powerline Specification 1.0.1.
We started marketing our AI-1100 system-on-chip in Fiscal 2007. It is designed to be embedded into various consumer electronics and multimedia networking devices and deliver high-speed Internet/Networking connectivity and multimedia over the power lines in a home. The AI-1100 chip offers a single-chip integration of HomePlug 1.0.1 powerline technology, an ARM 926-JES CPU operating at 160 MHz, dual Ethernet interfaces, an I2S Audio Interface, and a wide variety of other interfaces designed to support connected home applications. Furthermore, the programmable nature of our implementation allows ODMs/OEMs to extend the functionality of these products and HomePlug technology.
ArkTIC™ AI-1100 system-on-chip features:
· Based on HomePlug 1.0 Specification - PHY/MAC sub-system is designed to allow for compliance with the HomePlug specification - Arkados extensions for increased performance and future-proofing - Programmable MAC functions for full flexibility · ARM926 Processor - 16k instruction cache & 4k data cache - Memory Management Unit - Embedded Trace Macrocell (ETM9) · SDRAM Controller - Supports external parts up to 256Mb · SRAM Controller/Expansion Bus Interface - Supports external boot Flash or external SRAM and acts as a general-purpose interface bus for external logic · Ethernet controllers - Standard MII port (802.3u) - or - PHY Emulation Port (PEP) MII (emulates Ethernet PHY) · Video/Audio DSP Interface · USB 1.1 Device · Serial I/O Controllers · I2S for direct connection to audio DAC · IrDA - 6550d compatible UART · GPIO Controller · JTAG / Debug Interface · 0.18μ CMOS, 1.8V core, 3.3v I/O |  |
Our AI-1100 is the first in a series of devices built around existing and emerging HomePlug Powerline Alliance networking specifications. This device supports the HomePlug 1.0.1 specification along with a variety of multimedia applications. Our Direct to Speaker™ Internet Radio Reference Design (AI1100-DTS-INTR) and our Direct-to-Speaker™ MFi iPod Dock have received HomePlug 1.0 certification. Furthermore, the programmable nature of the Arkados implementation allows OEMs to extend the functionality of the HomePlug technology. Future devices will include, among other enhancements, the implementation of new HomePlug standards, such as HomePlug AV and HomePlug BPL, as they become available.
We have modularized a core Orthogonal Frequency Division Multiplexing (OFDM) and communication platform to rapidly develop customized solutions for each powerline market. This enables efficient reuse and repurposing of technology blocks, which can be used to create many specific solutions.
We also provide consulting, software, and applications support, thereby facilitating system integration in an effort to reduce our customers’ time-to-market and our customers’ development costs.
In the in-home networking portion of the market, we expect to deliver solutions for both computer-centric and entertainment-centric applications by combining both networking blocks and blocks that are capable of supporting end-user applications for consumer electronics products inside our chips. Our chips are designed to offer a high degree of programmability and may become an attractive solution for a diverse range of home-networking products that merge traditional consumer electronic functions with network-centric features.
In another portion of the market, we expect to deliver highly integrated circuits that combine both networking blocks and blocks that are capable of supporting communications applications in demand from businesses such as hotels, office parks, shopping plazas, apartment buildings, etc. This is sometimes referred to as the multi-dwelling/multi-tenant unit (MDU/MTU) or the “commercial” market. Downloadable firmware management capabilities make this an attractive solution for remote management and service applications.
In the Smart-Grid and Utility Applications portion of the market we expect to deliver highly integrated circuits that combine both networking blocks and blocks that are capable of supporting the communications applications that in demand from service providers and utility companies. This portion includes the “green power” applications that help utility companies to conserve energy and better manage their network, such as Automated Meter Reading, Peak Shaving, and a host of other applications that provide a variety of benefits and cost-saving measures. Downloadable firmware management capabilities would make this an attractive solution for remote management and service applications.
The application of Arkados solutions
Listed below are examples of the products that can be built based on the Arkados semiconductors by ODMs and OEMs. Our customers have already developed some of these products and either have or will be bringing them to market.
| | · | CONSUMER ELECTRONICS - Devices that bridge current devices and content with existing and new consumer electronic products throughout the home. Enjoy music from iPod, internet, or PC throughout the whole house - Watch video downloaded from the internet on your big screen TV, view all digital photos stored on your PC on a digital photo frame or share new photos with loved ones via the internet by displaying them directly on a digital photo frame located thousands of miles away. This is a growing market that includes audio & video devices with embedded powerline technology. We expect this market to grow over the next few years as more video and audio products are released with networking technologies built-in. Televisions, stereos, powered speakers, receivers, DVD and CD players, digital picture frames, home intercom systems, and other products are targeted applications for powerline networking technology. Internet streaming content and home content servers should greatly increase the demand for HomePlug 1.0 and AV products. In particular, our solutions offer advanced features such as synchronized whole-house audio which, combined with its new ease of installation, may significantly broaden the marketplace for such applications. |
| | | |
| | · | NETWORK HARDWARE - New types of routers, switches, gateways, network attached storage, surveillance cameras, and other devices that offer various types of services to the SOHO (Small Office Home Office) network. |
| | · | INTERNET TELEPHONY - As companies like Vonage, Comcast, Verizon and other service providers begin to roll-out new voice services to the home, an easy-to-use and reliable home network is needed. VoIP (Voice-over-IP) phones are currently produced by several vendors and we expect to see such products with HomePlug technology embedded into them. |
| | · | HOME SECURITY - Many companies have created home security cameras that are networked through various means. Early market entrants GigaFast, ST&T, and Asoka have already created powerline networked security cameras with embedded web servers that allow direct access to the camera’s feed. |
| | · | SMART GRID – Many utility companies may implement applications that could provide benefits such as saving money due to automated operation, the ability to predict maintenance issues, implementing a self-healing grid architecture, reducing power outages, and making better use of their assets; managing the grid more intelligently to prevent blackouts and power disruptions; recovering more quickly after a power disruption; increasing security; implementing real-time monitoring of the state of the network, and managing a response; managing the quality of the power (to deliver differentiated services for businesses with sensitive electronics and computers); implementing “green power” programs that allow consumers to manage their electricity use and costs; and integrating control systems, power electronics, and distributed resources. |
By developing solutions to facilitate our customers’ rapid development of full-featured next-generation products at reasonable prices, we position our company as a builder of bridges. Our solutions are designed to bridge entertainment and internet content to devices around the home, and to bridge between communications technologies, such as WiFi and powerline, Ethernet and powerline, and even to-the-home and in-the-home powerline technologies. We believe the growth of digital technologies will increase beyond computing until a large percentage of devices in the home seamlessly connect to some form of digital content or communications.
Many of our existing and potential customers are also currently in a specific marketplace that is being affected by digital convergence and networking technologies. We believe traditional networking companies are moving into traditional consumer electronics areas, while the reverse is happening to consumer electronics companies. Arkados provides platform solutions that allow those companies to enter the new market space with ease and speed.
We continue to gain considerable traction with our customers. We and our customers have publicly displayed a wide variety of potential products that include whole-house audio solutions (including music player docking stations, audio bridges, powered speakers, computer drivers for whole-house networked distribution of sound, and internet radio), and whole-house video distribution systems (including Internet-based TV adapters, surveillance systems, and digital picture frames).
Our solutions have been shown in a number of public venues, including the 2007 and 2008 International Consumer Electronics Show, Microsoft’s WinHEC 2007, and other conferences. Our prototypes or products have been publicly announced and/or demonstrated by Analog Devices, Channel Vision, devolo AG, GigaFast, GoodWay, Meiloon, PAC Electronics, Russound, Tatung, Zinwell, and Zylux. Many of these companies are suppliers to top tier brands in the market place. Several of these relationships, among others, have progressed into sales of chips, software development services, and related revenue.
Arkados received a major award from G4 Television for its HomePlug system-on-chip and software solution. While more than 20,000 products were introduced at the 2008 Consumer Electronics Show, only fifteen received G4’s CES 2008 “Best of the Best” product award. Arkados won the award on the strength of its embedded solution powering the IOGEAR Powerline Stereo Audio System consisting of an iPod® dock that is used as an audio source to distribute synchronized music to up to four different receivers. This creates whole-house music at a fraction of the cost of dedicated installed systems
We have also been involved with our customers in projects related to Smart Grid applications.
We have experienced the beginning of semiconductor sales. While most of our revenue has come from design and development agreements, we expect that such agreements will lead to volume orders, but we cannot assure you that they
will. We are targeting the sale of our powerline connectivity products to a broad range of communications, computing and consumer electronics ODMs/OEMs, but we have not yet derived significant product revenue from these ODMs/OEMs due to lengthy development cycle to develop and produce finished products. We are working closely with many of the leading communications, digital entertainment and consumer electronics companies some of which may result in design wins and orders for our integrated circuits. There are multiple OEMs that are sampling and testing our AI-1100 SoC chips, and one has announced a product incorporating our chip, but factors such as design issues, compatibility issues and manufacturing errors could delay the functioning of the products and prevent us from making sales. As is evidenced by the HomePlug certification of several of our reference designs for an Internet Radio and for a whole-house connected iPod dock, we are focused on delivering a wide array of reference designs that can help guide our customers through the product-to-market cycle.
Strategic Relationships
In July 2004, Arkados entered into a five-year Silicon Product Development and Product Collaboration Agreement with GDA Technologies, Inc., under which GDA assists Arkados in translating Arkados chip designs into a mask that can be used by a semiconductor foundry to manufacture Arkados designed integrated circuits in a cost effective manner. We paid GDA $175,000 under the agreement in Fiscal 2007 and will pay GDA 20% of production costs as compensation for production management services. In addition, we issued 150,000 shares of our restricted common stock to GDA for nominal consideration.
We have also entered into go-to-market strategies with a number of ODMs and other technology companies. Since many companies in this space target the same customer base as we do, we plan to collaborate to create solutions and offer even greater turnkey value for OEMs. We have announced relationships and strategies with several companies, including GigaFast and Tatung. Tatung Corporation, a multi-billion dollar product design and manufacturing company, and Arkados are developing whole-house digital media solutions that can distribute music and video from a multitude of sources such as an iPod®, music and video stored on computers, any internet radio station, and music and video download services to existing stereo systems, televisions, and speakers throughout the house.
Manufacturing
We have developed strategic alliances to implement our fabless manufacturing strategy. This is designed to allow us to concentrate on our design strengths, minimize fixed costs and capital expenditures, access advanced manufacturing facilities, and provide flexibility on sourcing multiple leading-edge technologies. We contract with third parties for all of our wafer fabrication and assembly, as well as for a portion of our design and testing.
Our manufacturing process is designed as follows. After wafer fabrication by the foundry, third-party assembly vendors package the wafer die. The finished products are then sent for testing, either to third-party testers or to our internal test facility, before shipment to our customers. We expect to qualify each product, participate in process and package development, define and control the manufacturing process at our suppliers where possible and practicable, develop or participate in the development of test programs, and perform production testing of products in accordance with our quality management system. If possible, we plan to use multiple foundries, assembly houses, and test houses. At present, we are using foundries in Japan owned by Fujitsu and we also use third parties to aid in our test and qualification process. Our efforts to develop multiple sources of supply have been hindered by our lack of adequate working capital.
Patents, Licenses and Trademarks
Our patent portfolio reflects our innovative development efforts and our forecasts of how we envision the market will evolve. We have been awarded 11 U.S. Patents, which we believe is an indicator that we have developed a good understanding regarding key industry developments. We believe our patents not only help us to safeguard our intellectual property, but will help us to position our company as a leader in this space. We believe that some of our recently awarded patents are integral to the implementation of powerline communication networks, which may create value in our company given the global market for this technology and the vast number of potential players in the marketplace.
We rely on trade secret, patent, copyright, and trademark laws to protect our intellectual property in our products and technology. We intend to continue this practice in the future. In addition to our issued U.S. patents, we have over 30 pending U.S. patent applications, and various corresponding international patents and applications.
To complement our own research and development efforts, we have also licensed, and expect to continue to license, from third parties a variety of intellectual property and technologies important to our business.
Although we have not received any notification from third parties that we are infringing any of their intellectual property, there may be third party patents or other intellectual property that we are infringing. If that were the case, third parties could assert infringement claims against us or seek an injunction on the sale of any of our products in the future. If such infringement were found to exist, we may attempt to acquire the requisite licenses or rights to use such technology or intellectual property. However, we cannot assure you that such licenses or rights could be obtained on favorable terms or at all.
Research and Development
We have focused on R&D since our inception. Our company has placed extraordinary value on the work done by our engineering staff, and we continue to create new software solutions, technology implementations, system-on-chip semiconductors, and the creation and development of intellectual property, that focus on helping our customers to get full-featured connected products to market quickly and at a lower cost. We protect our innovations with diligent patent and trademark programs.
We concentrate our research and development efforts on the design and development of new products for each of our principal markets. At this point, 12 of our 16 employees are dedicated to research and development. Research and development expenditures were $1,987,313, $1,920,892, and $1,395,257 in the years ended May 31, 2008, 2007 and 2006, respectively.
Our 2007 acquisition of Aster Wireless, near Rochester, NY strengthened our intellectual property pool and added three R&D employees to those that currently work in New Jersey. The intellectual property that was developed by Aster through years of R&D under the guidance of industry giants such as Kodak® has allowed us to introduce new products complementary to our existing product offerings. An example is our offering of a license to an implementation of the 802.15.3b Wireless Multimedia MAC, which is available to any developer interested in jumpstarting their development process, and bringing digital home multimedia products to market more quickly. With these developments, Arkados continues to offer a best-in-class platform for media-centric applications that demand reliable delivery of time-sensitive data.
We also fund certain research activities focused on other emerging product opportunities. Our future success is highly dependent upon our ability to develop complex new products, to transfer new products to volume production in a timely fashion, to introduce them to the marketplace ahead of the competition, to maintain competitive features, and to have them selected for design into products of leading systems manufacturers.
Our future success may also depend on assisting our customers with integration of our components into their new products, including providing support from the concept stage through design, launch, and production ramp. In this new converged marketplace, we believe the role of the traditional semiconductor provider is changing, and we have positioned ourselves as a platform provider that becomes an integral part of our customer’s product development process. We believe that our focus on application related features and software may contribute to our success.
Intellectual Property Portfolio
We focus on developing patents that have direct application to growth and strength in our business. Key patent areas include power line communications and wireless communications technology and applications. Examples include methods for increasing resistance to noise, allowing more robust transmissions, maximizing throughput, and several product-level applications such as adaptors and connectivity devices. We believe our patent portfolio will provide a competitive edge in the areas of the technology based on such new standards such as IEEE1901 and upcoming ITU G.hn standards.
Our IP Portfolio continues to grow. We diligently protect our inventions with US and International patents. Currently, we have been issued 11 patents by the United States Patent & Trademark Office, and have 25 pending applications. We also prosecute our valuable IP on an international basis, and currently have 18 Pending International Applications.
We have registered trademarks for Arkados® and ArkTIC®, and have two other trademark applications pending.
As a member of the HomePlug Alliance, we are obligated to license Necessary Patent Claims (intellectual property rights without the use of which products cannot conform to the HomePlug specifications) to any member of the alliance (including competitors) on a reasonable and non-discriminatory basis (known as RaND) as defined in the alliance’s Sponsor Agreement and Contributor Agreement. Under our license and development agreements, we retain title to our patents, patent applications and other licensed technology, and to any improvements that we develop.
To complement our own research and development efforts, we have also licensed, and expect to continue to license, from third parties a variety of intellectual property and technologies important to our business.
Although we have not received any notification from third parties that we are infringing any of their intellectual property, there may be third party patents or other intellectual property that we are infringing. If that were the case, third parties could assert infringement claims against us or seek an injunction on the sale of any of our products in the future. If such infringement were found to exist, we may attempt to acquire the requisite licenses or rights to use such technology or intellectual property. However, we cannot assure you that such licenses or rights could be obtained on favorable terms or at all.
Competition
Arkados faces intense competition as a solution provider, a technology developer of standards-based powerline technologies, as well as from other technologies also focused on our target markets. Our overarching value remains in our ability to develop SoC/software solutions that help our customers to create full-featured products that are cost-effective and can be brought to market quickly.
Differentiation of Arkados Solutions
Some manufacturers have attempted to add HomePlug-based chips to their existing products. This “bolt-on” approach often leads to products that are functional; however, the end product can be very expensive with decreased margins.
Arkados’ solutions offer a completely different approach. By incorporating a processor and multiple interfaces into the same chip that houses HomePlug communication technology, and by providing application level software that runs on the chip, Arkados presents a more cost-effective and more flexible strategy to bring products to market.
Building on the architecture of the HomePlug 1.0 chip that offered a wide range of advantages over the competition, Arkados is developing a HomePlug AV System-on-Chip to provide an even greater range of differentiation and advantages.
Business Environment
Markets for our products are highly competitive and we expect that competition will continue to increase. We compete with other semiconductor suppliers that offer standard semiconductors, application-specific integrated circuits, and fully customized integrated circuits, including embedded software, chip, and board-level products.
Our competitive strategy has been to provide cost-effective integrated products bundled with software that is designed to support a turnkey approach for a variety of applications. We believe this approach, coupled with the benefits of powerline communications technology, allows us to effectively compete due the following aspects:
| · | Due to embedded HomePlug standard technology, we believe our product performance includes unique features such as whole-house connectivity, high throughput, ease of setup, and Quality-of-service mechanisms that preserve a positive end-user experience |
| · | Due to the integration of our system-on-chip and firmware solutions, we believe our potential customers will benefit from quicker time-to-market, a competitive bill-of-materials cost, an enhanced feature set, and lower development costs |
| · | Due to our reliance on international technology standards, we believe our solutions are able comply with regulatory requirements on a global basis |
We face competition both from established players that are beginning to focus on powerline networking technology, as well as recent entrants in the field. Some of these competitors create solutions that are compliant with HomePlug Alliance
specifications, while other competitors’ products are based on proprietary technologies. Immediate key competitors in the HomePlug powerline networking portion include Afa Technologies, Conexant Systems Inc., Intellon Corporation, and Maxim Integrated Products Inc. DS2 and Panasonic build ICs that are incompatible with the HomePlug standard.
We expect to face additional competition from new entrants in each of our markets, which may include both large domestic and international integrated circuit manufacturers and smaller, emerging companies. Many of our competitors have substantially greater financial, engineering, manufacturing, marketing, technical, distribution and other resources, broader product lines, greater intellectual property rights, and longer relationships with customers than we have.
In addition, there are organizations worldwide may attempt to create technology standards that compete with the industry specifications established by the HomePlug Powerline Alliance. These include the Institute of Electrical and Electronics Engineers (IEEE) and the International Telecommunication Union (ITU) which may adopt standards different from, and incompatible with, the technology inside our products. We also participate in these standards efforts. Other industry organizations promote powerline communications, such as the Universal Powerline Association, the Consumer Electronics Powerline Communication Alliance (CEPCA) and the High Definition Powerline Communications (HD-PLC) Alliance. They have also established technology or coexistence specifications that may conflict with the HomePlug specifications.
As a provider of powerline home connectivity integrated circuits, we face additional competition from other home connectivity technologies such as twisted pair cable, coaxial cable and wireless media. Despite the broad array of different technologies deployed to date, we believe those technologies that do not require new wires such as HomePNA, MoCA, 802.11 and other wireless alternatives, will provide the competition to powerline solutions.
Sales and Marketing
We expect to sell our products worldwide using the following channels:
| | · | Sales and marketing partnerships with established companies. |
| | These relationships generally help to establish the presence in specific regions and access customers through already developed relationships. The benefits of using this channel are numerous, among them are added credibility, reduction of upfront sales and marketing expenses, acceleration of volume sales through incumbency of the customer base, and local customer support and account management. |
| | · | Advanced development partnerships with strategic customers. |
| | The benefits of using this channel include the creation of product focus, reduction of upfront sales and marketing expenses, acceleration of sales volumes through early commitments, and creation of incremental development revenues. |
| | · | Network of distributors that can support our customers worldwide. |
| | We have an agreement with Jedcom, a distributor in Taiwan. Under the terms of this agreement Jedcom would provide us with distribution, sales and marketing, and field application engineering support in Taiwan and certain regions of China. |
We expect to develop our sales force to include a network of direct sales regions. We expect to establish international sales offices and develop relationships with appropriate organizations located worldwide. We expect to supplement our direct sales force with sales representative organizations and distributors. The scope and development of our sales and marketing organization will depend, among other things, on the amount of capital available to us and when products are ready for testing.
Our marketing consists of various programs that help create awareness and promote the benefits of our various solutions, the worth of the company, and the value of our technology to our target industries. Much of the marketing is handled through press releases, website, involvement in trade shows and conferences, press interview opportunities, placed articles, newsletters, white papers, and through interpersonal relationships developed through numerous methods. We have at times hired agencies to assist with specialized functions.
Regulatory Environment
Our customers’ products, which contain our solutions for powerline communications technology must adhere to regulations about transmission power, permissible frequencies of operation and electromagnetic interference (EMI) for both U.S. and foreign governments. In some countries, certification tests must be performed to ensure a vendor’s products comply with the regulations. While it is our customers who are responsible to obtain certifications, we need to ensure international regulations are adhered to.
The Federal Communications Commission (FCC) administers regulations in the United States. Our solutions are unlicensed devices in the U.S.A. and receive no regulatory protection from interference from other devices and may not cause any harmful interference to licensed devices. Those who operate unlicensed devices must stop using a device when the FCC declares that the device is causing harmful interference. Products using our solutions over power lines both inside and outside the home are FCC-regulated and must comply with radiated emission limits and various other technical standards.
Outside of the United States, the International Electrotechnical Commission, International Special Committee on Radio Interference (IEC/CISPR) is the primary authority. IEC member states import IEC/CISPR standards into their own national laws either in whole or in part. Powerline communications regulations are based upon specific country requirements. In some countries, regulations may limit the use of powerline communications in certain circumstances or to certain power levels or frequency bands.
Before products can be sold, most countries require electronic products to comply with safety testing or to be certified. While it is our customers who are responsible to obtain certifications, we need to ensure international regulations are adhered to.
Regulations and their enforcement and interpretation varies between countries. Regulatory change or certification methodologies may require a redesign of products containing our solutions. At its most severe, regulatory changes could terminate the use of products already in the marketplace.
Backlog
We expect sales outside of strategic partnership agreements to be made primarily pursuant to standard short-term purchase orders for delivery of standard products. We expect the quantity actually ordered by the customer, as well as the shipment schedules, to be frequently revised, without significant penalty, to reflect changes in the customer’s needs. As a result, we believe that in the future, our backlog at any given time should not be used as a meaningful indicator of future revenues.
As of May 31, 2008, we had a backlog of approximately $235,000 of orders we believe are firm.
Employees
As of May 31, 2008, we had 16 full-time equivalent employees, including our CEO, Oleg Logvinov. The majority (12) of our full time employees are engaged in research, development, engineering with the remainder being divided to marketing and administration. Andreas Typaldos, our Chairman of the Board provides us with leadership in our capital raising efforts on a part-time basis. Our future success depends, in part, on our ability to continue to attract, retain and motivate highly qualified technical, marketing, engineering, and management personnel. Due to the highly competitive nature of the marketplace that we operate in and our financial condition, we have lost one employees since May 31, 2008 and may continue to lose key employees. We expect to be able to hire qualified personnel to fill open positions created by such occurrences, although there can be no assurance that we will be able to do this in the future. None of our employees are represented by collective bargaining agreements.
From time to time, we also employ outside contractors either for a specific project, or to supplement our staff on a temporary basis.
An investment in our common stock is speculative in nature, involves a high degree of risk and should not be made by any investor who cannot afford the loss of their entire investment. Each prospective purchaser should carefully consider the following risks and speculative factors associated with our business and capital structure, as well as others described elsewhere in this report, before making any decision to buy, sell or hold our common stock.
This report contains certain statements relating to future events or the future financial performance of our company. Readers are cautioned that such statements are only predictions, involve risks and uncertainties, and that actual events or results may differ materially. In evaluating such statements, prospective investors should specifically consider the various factors identified in this memorandum, including the matters set forth below, which could cause actual results to differ materially from those indicated by such forward-looking statements.
Risks Related to Our Financial Condition
Dependence on financing.
Since we are not generating significant revenue compared to our operating expenses, we are dependent on outside sources of financing. We have financed our operations by issuing secured and unsecured convertible debt and equity securities in private placements, in some cases with equity incentives for the investor in the form of warrants to purchase our common stock and have borrowed from affiliates of our Chairman of the Board. We have sought and will continue to seek various sources of financing but there are no commitments from anyone to provide us with financing. If we are unable to obtain financing, we may have to suspend operations, sell assets and will not be able to execute our business plan. If we default on our obligations to secured debt holders, our assets could be seized and sold or retained to satisfy such obligations.
Inability to obtain additional financing would result in the suspension of our business.
Our ability to continue our operations depends on our ability to obtain financing. If adequate funds are not available on acceptable terms, we may not be able to retain existing and/or attract new employees, support product development and fabrication, take advantage of market opportunities, develop or enhance new products, pursue acquisitions that would complement our existing product offerings or enhance our technical capabilities to develop new products or execute our business strategy.
Terms of our outstanding 6% Secured Convertible Debentures due December 28, 2008 impedes our ability to obtain financing.
We issued $9,283,461 principal amount of 6% Secured Convertible Debentures due December 28, 2008 issued during the period from December 2004 to December 31, 2007. Due to the capitalization of interest payments and the issuance of additional principal as a penalty as of April 1, 2008, the principal amount of the Debentures outstanding May 31, 2008 was $11,051,709. The documents related to these securities, although amended in January 2007 to eliminate the requirement that the holders of 60.1% of the outstanding principal amount consent to our issuance of shares, debt or fixed convertible securities to finance our operations, continue to contain a full “ratchet down” provision which has a dilutive effect which is triggered by future financing at an effective price lower than the conversion and warrant exercise price. While a substantial portion of the net proceeds of the sale of the Debentures was initially used to repay pre-existing debt, all of the proceeds during the fiscal year 2007 and 2008 were used to support Arkados’ operations. There is no assurance that the holders will continue to provide additional funds to us or that future financing will not be impeded by the anti-dilution provisions of the documents. Our ability to continue our operations depends on our ability to obtain financing. If adequate funds are not available on acceptable terms, we may not be able to retain existing and/or attract new employees, support product development and fabrication, take advantage of market opportunities, develop or enhance new products, pursue acquisitions that would complement our existing product offerings or enhance our technical capabilities to develop new products or execute our business strategy.
If we lose key employees and consultants, including our Chairman and CEO, or are unable to attract or retain qualified personnel, our business could suffer.
Our future success depends, in part, on our ability to continue to attract, retain and motivate highly qualified technical, marketing, engineering, and management personnel. Due to the highly competitive nature of the marketplace that we operate in and our financial condition, we have lost one employee since May 31, 2008 and may continue to lose key employees. We are highly dependent on our management, particularly our CEO, Oleg Logvinov and our Chairman, Andreas Typaldos. The loss of the services of either of Mr. Logvinov, Mr. Typaldos or other personnel could have a material adverse effect on our operations. Although Mr. Logvinov is a party to an employment agreement for his services until May 24, 2008, from time to time, our inability to make payments under the agreement may give him the right to terminate his employment with us at any time on short notice. As of May 31, 2008, we have failed to make payments totaling $ 466,033 due to Mr. Logvinov, comprised of an unpaid bonus, salary and expenses. We are negotiating a longer term agreement with Mr. Logvinov, but there can be no assurance that he will remain associated with us. Similarly, Mr. Typaldos provides services to us on a month to month basis under a consulting agreement that expired on May 31, 2007 and there is no assurance that Mr. Typaldos will continue to devote time and attention to our business. As of August 31, 2008, we owe $1,367,633 in payroll to all officers and other employees, including Mr. Logvinov. Our failure to satisfy these obligations creates a morale problem, increases the risk of our losing personnel at every level and minimizes our chance to retain additional or replacement staff.
Our independent registered public accounting firm has expressed doubt about our ability to continue as a going concern, which may hinder our ability to obtain future financing
Our consolidated financial statements as of May 31, 2008 have been prepared under the assumption that we will continue as a going concern for the year ending May 31, 2009. Our independent registered public accounting firm has issued a report that included an explanatory paragraph referring to our recurring losses from operations and net capital deficiency and expressing substantial doubt in our ability to continue as a going concern without additional capital becoming available. Our ability to continue as a going concern is dependent upon our ability to obtain additional equity or debt financing, attain further operating efficiencies, reduce expenditures, and, ultimately, to generate revenue. The financial statements do not include any adjustments that might result from the outcome of this uncertainty
If we fail to comply with the rules under the Sarbanes-Oxley Act related to accounting controls and procedures, or if material weaknesses or other deficiencies are discovered in our internal accounting procedures, our stock price could decline significantly and raising capital could be more difficult.
If we fail to comply with the rules under the Sarbanes-Oxley Act related to accounting controls and procedures, or, if material weaknesses or other deficiencies are discovered in our internal accounting procedures, our stock price could decline significantly and raising capital could be more difficult. Section 404 of the Sarbanes-Oxley Act requires annual management assessments of the effectiveness of our internal controls over financial reporting beginning with our financial statements for the year ending May 31, 2009 and a report by our independent auditors addressing these assessments beginning with the financial statements for the year ending May 31, 2010. We are in the process of documenting and testing our internal control procedures, and we may identify material weaknesses in our internal control over financial reporting and other deficiencies, including the lack of sufficient staff. If material weaknesses and deficiencies are detected, it could cause investors to lose confidence in our financial statements and result in a decline in our stock price and consequently affect our financial condition. In addition, if we fail to achieve and maintain the adequacy of our internal controls, we may not be able to ensure that we can conclude on an ongoing basis that we have effective internal controls over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act. Moreover, effective internal controls, particularly those related to revenue recognition, are necessary for us to produce reliable financial reports and are important to helping prevent financial fraud. If we cannot provide reliable financial reports or prevent fraud, our business and operating results could be harmed, investors could lose confidence in our reported financial information, and the trading price of our Common Stock could drop significantly. In addition, we cannot be certain that additional material weaknesses or significant deficiencies in our internal controls will not be discovered in the future. Our stock price, ability to obtain financing and the listing of our common stock on the OTCBB would be adversely impacted if we fail to maintain effective disclosure controls and procedures.
We have not generated significant revenue from our principal intended activities and we have been dependent on a mall number of customers for substantially all of out revenue.
While our most recent quarters have reflected what we believe is the beginning of regular customer activity, as a development stage company, we have generated limited revenue principally from providing development services and generating data in field test scenarios. We have not sold sufficient quantities of mass produced semiconductors, which is the primary part of our expected revenue stream going forward. In addition, substantially all of our revenue has been from a small number of customers. It is difficult, in a market that is rapidly evolving, to evaluate the future sales performance of powerline technology, and our implementation of it. We may not successfully address any of these risks and may never have significant revenue.
We expect losses will continue for the foreseeable future. Our stock price may be affected by such losses.
In our short history, we have not reported an operating profit and do not expect to report a profit in the near future, if at all. We have experienced losses from operations since inception. Losses are likely to continue, and may cause volatility in our stock price.
Risks Related to Our Business Plans and Operations
Consumer demand may not develop as we anticipate, and our business will suffer.
The initial and primary customers of our semiconductors are expected to be OEMs of devices with uses for connectivity. OEM acceptance of powerline technology will be driven by consumer demand for home connectivity. If consumer demand does not develop as we anticipate, our products will sell slowly, or not at all, and our business will suffer.
There are several factors that may affect the expansion of the home connectivity market:
| · | the emergence of competing standards for home connectivity |
| · | new content or products that attract a large consumer base |
| · | interoperability between different products in the same market |
| · | the success of marketing by OEMs |
| · | the cost and availability of connected products using this technology or competing technologies |
We have only limited ability to influence in the resolution of the foregoing.
Powerline solutions for home connectivity may not gain acceptance.
Currently, Ethernet and Wireless technologies enjoy a large market share of the home connectivity market. As the market broadens beyond computer networking to include audio/video applications, it is unclear which medium will be predominant. Among the competing physical media, including coaxial cable, Ethernet, phone line, and wireless, many are actively supported by various trade associations that represent the interests of a variety of companies. Some have greater market acceptance. If powerline technology does not achieve market acceptance, there may be less demand or no demand at all, and our business will suffer.
Powerline technologies, other than the technologies implemented by Arkados may proliferate.
Arkados is developing products that comply with the specifications for powerline networking developed by members of the HomePlug Powerline Alliance. However, there may be other competing, independent efforts in this market. To the extent that a competing effort establishes the predominant industry standard for powerline technologies that are not based on Arkados’ chosen technologies, or, if no standard predominates in each market, our business will suffer.
Products that incorporate our chosen technologies may fail in operation, or fail to be certified by standards organizations.
Our ODM/OEM customers may produce products that fail to work properly, either as a consequence of the inclusion of our semiconductors and software, or an unrelated problem; in which case, our business may suffer. If products that incorporate our solutions fail to pass standards test, our business will suffer.
We may be unable to sell large volumes of semiconductors.
While we plan to attract customers with plans for large numbers of products, there may be cases when significant effort results in few semiconductors sold. When a company agrees to develop products that use our solutions, and agrees to purchase our solutions in volume, we consider the agreement a “design win.” Achieving a design win does not create a binding commitment from that customer. A design win is merely an expression of interest by a customer to make volume purchases, but at any time a customer can discontinue using our solutions. To the extent that we are unable to convert design wins into volume sales, our business will suffer.
We may not be able to attract and retain engineering and technical talent.
The needs of the business coupled with capital constraints will dictate our ability to hire and retain staff, but we expect to need personnel in our technical and engineering disciplines, as well as in operational roles. Since powerline technology is a narrow engineering and technical specialty and we have limited financial resources, attracting experienced and retaining talent has and is expected to continue to be difficult. If we are unable to attract and retain qualified personnel, our ability to develop and produce our products will be limited.
Our solutions have a long development and sales cycle. We may continue to incur significant expenses before revenues are realized.
Significant company resources must be dedicated to research and development, production and sales and marketing in order to properly sell solutions into our target markets. We have and will continue incur substantial product development expenses before generating associated revenues. Customers typically spend two to nine months in testing before volume production of its own products, which incorporate our solution. Sales cycles are lengthy and produce delays between the time we incur expenses for research, development, sales and marketing efforts, and the time that we generate revenue, if any revenue is generated. If we do not generate revenue after we have incurred substantial expenses to develop and market any of our products, our business will suffer.
We will depend on our OEM and ODM customers to produce successful products that incorporate our solutions.
Our customers are OEMs and ODMs in our target markets. They integrate our IC’s into their products. If their products are not successful, we may not sell volume quantities of our semiconductors. OEM and ODM products may be unsuccessful for many reasons which are beyond our control. Any of these reasons may harm our business.
We will rely on third parties to fabricate, assemble and test our solutions, which may increase costs or create delays.
As a “fabless” semiconductor manufacturer, we do not own or operate a semiconductor fabrication, assembly or testing facility. We have entered into an agreement with GDA Technologies, Inc. to manage this process for us. In the future, GDA or contract foundries, and assembly and test houses selected by us may also be adversely affected for reasons beyond our control. This may result in our inability to obtain products within the time frames, volumes or costs we require, or at all. Any disruption in the availability of products, or problems associated with the delivery, quality or cost of fabrication, assembly and testing of our products may cause our business to suffer.
Our specifications may result in unacceptable manufacturing yields from our suppliers, which may increase our product costs or reduce supplies.
We write specifications and create designs and our third-party suppliers manufacture chips based on those specifications and designs. We have not yet entered into volume production of our products, and our specifications may fall short of producing volumes of semiconductors effectively and efficiently. This may cause dies on our wafers to function poorly.
The term “yield” is used to express the proportion of functional die expressed as a percentage of total die on a wafer. If expected yields are not reached, our product costs will increase. We may also experience problems when our products are scaled to smaller geometries. Problems with yield may not be identified until late in the product development cycle, or even once an end-product is built and sold. Yield problems are difficult to detect, time consuming and expensive to correct. These issues could affect our intention to deliver products to customers in a timely manner.
Defects in our products could hurt the business by harming our reputation, decreasing our market acceptance, losing customer accounts, and creating liabilities for our company.
Integrated circuits are highly complex products, and may contain defects or bugs which may not be detected until other products that incorporate our chips are shipped and being used by end-users. Defects may harm our reputation and make customers reluctant to buy our products. Correcting these defects is an expensive process. If defects are not discovered until after we have commenced commercial production of a new product, we might incur substantial additional development costs. If we fail to solve problems in time, we may incur product recall, repair or replacement costs. These problems may also result in claims against us by our customers or consumers. Any such problems could divert our company resources from other development efforts. Moreover, we would likely lose, or experience a delay in, the market acceptance of our products. We could also lose credibility with our current and prospective customers.
Regulation in certain regions of the world, which limits our international market.
Our powerline communication products are designed to operate on frequencies that are currently restricted by government regulations in certain areas of the world, Japan as an example. As a result, our semiconductors cannot be used in products used in such areas at this time. The international market will remain limited unless the existing regulations are changed or until we develop products that can operate within the constraints imposed by the existing regulations.
Future Federal Communications Commission, or FCC, regulation may restrict sales of our products adversely affecting our business.
Our powerline communication products are designed to operate on frequencies that are not currently restricted by FCC regulations. OEM products incorporating our ICs are regulated by the FCC. Operation of these products currently is not restricted by the FCC as long as the products do not interfere with other radio frequency, or RF, bands licensed by the FCC. We cannot assure you that this will continue to be the case. Should government regulations change in the future, making operation of our customers’ products at their current radio frequency bands subject to restrictive regulation, or subjecting the frequencies on which our products operate to restrictions, our customers’ desire to purchase our products could diminish and our business may suffer.
Our business is highly dependent on the expansion of the consumer digital entertainment electronics market.
We expect that the main growth in our product demand will be driven by the consumer digital entertainment electronics market. We are focusing on audio/video transmission and distribution products for the in-home use. We expect the consumer digital market to expand; however, our strategy may not be successful. Given current economic conditions in the United States and internationally, as well as the large installed base of consumer electronics products, consumer spending on home electronic products may not increase as expected. In addition, the potential decline in consumer confidence and consumer spending could have a material adverse effect on our business.
Our success depends on our ability to introduce new products on a timely basis.
Our success depends upon our ability to develop new products for new and existing markets, to introduce these products in a timely manner, and to have these products gain market acceptance. The development of new products is highly complex and we may experience delays in developing and introducing them. Successful product development and introduction depend on a number of factors, including:
| · | proper new product definition, |
| · | timely completion of design and testing of new products, |
| · | assisting our customers with integration of our components into their new products, including providing support from the concept stage through design, launch and production ramp, |
| · | successfully developing and implementing the software necessary to integrate our products into our customers’ products, |
| · | achievement of acceptable manufacturing yields, |
| · | availability of wafer, assembly, and test capacity, |
| · | market acceptance of our products and the products of our customers |
| · | obtaining and retaining industry certification requirements. |
Although we seek to design products that have the potential to become industry standard products, we cannot assure you that the market leaders will adopt any products introduced by us, or that any products that may be initially accepted by our customers that are market leaders will become industry standard products. Both revenues and margins may be materially affected if new product introductions are delayed, or if our products are not designed into successive generations of our customers’ products. We cannot assure you that we will be able to meet these challenges, or adjust to changing market conditions as quickly and cost-effectively as necessary to compete successfully. Our failure to develop and introduce new products successfully could harm our business and operating results.
Successful product design and development is dependent on our ability to attract, retain, and motivate qualified design engineers, of which there is a limited number. Due to the complexity and variety of CMOS, precision linear, and mixed-signal circuits, the limited number of qualified circuit designers and software engineers, and the limited effectiveness of computer-aided design systems in the design of such circuits, we cannot assure you that we will be able to successfully develop and introduce new products on a timely basis.
Strong competition in the high-performance integrated circuit market may harm our business.
The integrated circuit industry is intensely competitive and is characterized by rapid technological change, price erosion, and design and other technological obsolescence. Because of shortened product life cycles and even shorter design-in cycles in a number of the markets that we serve, particularly consumer entertainment, our competitors have increasingly frequent opportunities to achieve design wins in next-generation systems. In the event that competitors succeed in supplanting our products, our desired market share may not be attainable and/or sustainable and net sales, gross margins, and results of operations would be adversely affected.
In powerline communications, our principal competitors include Intellon, Conexant, Maxim, DS2, Panasonic Gigle Semiconductor, and Spidcom. In Network and Media Processors Conexant, Cirrus Logic, Micrel, Texas Instruments, Atmel, and Sharp. Many of our competitors have substantially greater financial, engineering, manufacturing, marketing, technical, distribution and other resources, broader product lines, greater intellectual property rights, and longer relationships with customers than we have. We also expect intensified competition from emerging companies and from customers who develop their own integrated circuit products. In addition, some of our current and future competitors maintain their own fabrication facilities, which could benefit them in connection with cost, capacity and technical issues.
Increased competition could adversely affect our business. We cannot assure you that we will be able to compete successfully in the future or that competitive pressures will not adversely affect our financial condition and results of operations. Competitive pressures could reduce market acceptance of our products and result in price reductions and increases in expenses that could adversely affect our business and our financial condition.
Our products may be characterized by average selling prices (ASPs) that decline over short time periods; if we are unable to introduce new products with higher selling prices or reduce our costs, our business and operating results could be harmed.
Historically in the integrated circuit industry, average selling prices of products have decreased over time, while manufacturing costs may remain fixed. If we are unable to introduce new products with higher margins or to reduce
manufacturing costs to offset anticipated decreases in the prices of our products, our operating results may be adversely affected. In addition, because of high fixed costs in our industry, we are limited in our ability to reduce total costs quickly in response to any revenue shortfalls. Because of these factors, we may experience material adverse fluctuations in our future operating results on a quarterly or annual basis.
Our products are complex and could contain defects, which could reduce sales of those products or result in claims against us.
Product development in the markets we serve is becoming more focused on the integration of multiple functions on individual devices. In addition to that, powerline communication is a relatively new technology. There is a general trend towards increasingly complex products. The greater integration of functions and complexity of operations of our products increases the risk that our customers or end users could discover latent defects or subtle faults after volumes of product have been shipped. This could result in:
| · | material recall and replacement costs for product warranty and support, |
| · | adverse impact to our customer relationships by the occurrence of significant defects, |
| · | delay in recognition or loss of revenues, loss of market share, or failure to achieve market acceptance, and |
| · | diversion of the attention of our engineering personnel from our product development efforts. |
The occurrence of any of these problems could result in the delay or loss of market acceptance of our products and would likely harm our business, and may result into our inability to secure a reasonable share of the market, In addition, any defects or other problems with our products could result in financial or other damages to our customers who could seek damages from us for their losses. A product liability claim brought against us, even if unsuccessful, would likely be time consuming and costly to defend.
We rely on independent foundries to manufacture all of our wafers.
We rely on independent foundries to manufacture all of our wafers. In order to produce our silicon, we need to secure appropriate manufacturing services and capacities. Our reliance on outside foundries involves several risks and uncertainties, including the:
| · | inability to secure appropriate manufacturing services and capacities |
| · | possibility of an interruption or loss of manufacturing capacity |
| · | lack of control over delivery schedules, quality assurance, manufacturing yields and costs |
| · | possible misappropriation of our intellectual property |
| · | inability to reduce our costs as quickly as competitors who manufacture their own products and are not bound by set prices. |
Market conditions could result in wafers being in short supply and prevent us from having adequate supply to meet our customer requirements. In addition, any prolonged inability to utilize third-party foundries because of fire, natural disaster, or otherwise, would have a material adverse effect on our financial condition and results of operations. If we are not able to obtain additional foundry capacity as required, our relationships with our customers would be harmed and, consequently, our sales would likely be reduced, and we may be forced to purchase wafers from higher-cost suppliers or to pay expediting charges to obtain additional supply, if we are able to acquire wafers at all.
In order to secure additional foundry capacity, we may enter into contracts that commit us to purchase specified quantities of silicon wafers over extended periods. In the future, we may not be able to secure sufficient capacity with foundries in a timely fashion or at all, and such arrangements, if any, may not be on terms favorable to us. Moreover, if we are able to secure foundry capacity, we may be obligated to utilize all of that capacity or incur penalties. These penalties may be expensive and could harm our financial results.
We will be dependent on our subcontractors to perform some of the design and key manufacturing functions for us.
We will depend on third-party subcontractors for the elements of the design, assembly, packaging, and testing of our products. International operations and sales may be subject to political and economic risks, including political instability, currency controls, exchange rate fluctuations, and changes in import/export regulations, tariff and freight rates, as well as the risks of natural disaster. Although we will seek to reduce our dependence on a limited number of subcontractors as demand for our products merits, the concentration of subcontractors and manufacturing operations in certain areas of the World could subject us to the risks of conducting business internationally, including political and economic conditions in such regions as Asia, India, etc. Disruption or termination of the assembly, packaging or testing of our products could occur, and such disruptions could harm our business and operating results. In addition, we are unable to predict whether events such as the epidemic of SARS will have a negative effect on the design, supply, testing, and packaging of our products.
We may be unable to protect our intellectual property rights from third-party claims and litigation.
Our success depends on our ability to obtain patents and licenses and to preserve our other intellectual property rights covering our technology, applications, products, and development and testing tools. We seek patent protection for those inventions and technologies for which we believe such protection is suitable and is likely to provide a competitive advantage to us. In some cases, patent applications have been deemed abandoned because we lacked adequate financial resources to promptly prosecute the applications. We also rely substantially on trade secrets, proprietary technology, non-disclosure and other contractual agreements, and technical measures to protect our technology, application, design, and manufacturing know-how, and work actively to foster continuing technological innovation to maintain and protect our competitive position. We cannot assure you that steps taken by us to protect our intellectual property will be adequate, that our competitors will not independently develop or patent substantially equivalent or superior technologies or be able to design around patents that we may receive, or that our intellectual property will not be misappropriated. Also, the laws of some foreign countries may not protect our intellectual property as much as the laws of the United States.
Potential intellectual property claims and litigation could subject us to significant liability for damages and could invalidate our proprietary rights.
The semiconductor industry is characterized by frequent litigation regarding patent and other intellectual property rights. Even if we receive a patent grant we would not be able to offer any assurance that it will not be invalidated, circumvented, or challenged, that rights granted under the patent will provide competitive advantages to us, or that any of our pending or future patent applications will be issued with the scope of the claims sought by us, if at all. As is typical in the semiconductor industry, we expect that we and our customers may have received and may receive in the future, communications from third parties asserting patents, mask work rights, or copyrights on certain of our products and technologies. In the event third parties were to make a valid intellectual property claim and a license was not available on commercially reasonable terms, our operating results could be harmed. Litigation, which could result in substantial cost to us and diversion of our resources, may also be necessary to defend us against claimed infringement of the rights of others. An unfavorable outcome in any such suit could have an adverse effect on our future operations and/or liquidity.
If we are unable to make continued substantial investments in research and development, we may not be able to sell our products.
We plan significant expenditures in research and development activities to develop products and solutions. If we fail to make sufficient expenditures in research and development programs, new technologies and process improvements implemented by our competitors could render our current and planned products obsolete, and our business could be harmed. Substantially all of our operating expenses are related to research and development.
Pending litigation.
We have reported that three former officers of Enikia, LLC(Enikia, LLC being the company from which we indirectly acquired patents and other assets relating to our planned products), have filed a lawsuit against Andreas Typaldos, our Chairman, Oleg Logvinov, our CEO, Enikia, Enikia’s former legal counsel, Miletos, Inc., Arkados and us. The action is
captioned Robert Dillon, et al. v. Andreas Typaldos et al. , and was commenced in the Superior Court of New Jersey, Chancery Division, Somerset County (Docket No. C-12102-04). In August 2007 the Superior Court entered an order that states “Defendants, Enikia LLC, Andreas Typaldos, Oleg Logvinov and Miletos, Inc. are dismissed from the case and ordered to attend binding arbitration of the claims against them pursuant to the Enikia operating agreement. The remainder of the Superior Court matter is stayed pending arbitration. The arbitration has been filed in the first quarter of 2008 and the arbitration hearing is scheduled for October 20, 2008, with possible court litigation and appeals to follow. We do not believe there is any merit to these claims and intend to vigorously defend the action. The outcome of any arbitration and/or court litigation is inherently uncertain and we are required under our certificate of incorporation, bylaws and employment agreements to indemnify our officers and directors for certain liabilities, including the cost of defending litigation brought against them in their capacity as such. A portion of our indemnification liability is insured.
Obligation to license certain intellectual property rights.
As a member of the HomePlug Alliance, TIA TR30.1 and IEEE P1901, we are obligated to license certain intellectual property rights to our competitors, on a non-discriminatory basis, which may adversely affect our ability to compete.
Risks Related To Our Common Stock And Its Market Value
If we fail to remain current on our reporting requirements, we could be removed from the OTC Bulletin Board which would limit the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market.
Companies trading on the OTC Bulletin Board, such as us, must be reporting issuers under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and must be current in their reports under Section 13, in order to maintain price quotation privileges on the OTC Bulletin Board, and to be timely in such filings. If we fail to remain current on our reporting requirements or file late three times in 12 calendar months, our stock could be removed from the OTC Bulletin Board. As a result, the market liquidity for our securities could be severely adversely affected by limiting the ability of broker-dealers to sell our securities and the ability of stockholders to sell their securities in the secondary market. There can be no assurance that in the future we will always be current in our reporting requirements.
Our common stock is subject to the “penny stock” rules of the SEC and the trading market in our securities is limited, which makes transactions in our stock cumbersome and may reduce the value of an investment in our stock.
SEC Rule 15g-9 establishes the definition of a “penny stock,” for the purposes relevant to us, as any equity security that has a market price of less than $5.00 per share or with an exercise price of less than $5.00 per share, subject to certain exceptions. For any transaction involving a penny stock, unless exempt, the rules require:
| · | that a broker or dealer approve a person’s account for transactions in penny stocks; and |
| · | the broker or dealer receive from the investor a written agreement to the transaction, setting forth the identity and quantity of the penny stock to be purchased. |
In order to approve a person’s account for transactions in penny stocks, the broker or dealer must:
| · | obtain financial information and investment experience objectives of the person; and |
| · | make a reasonable determination that the transactions in penny stocks are suitable for that person and the person has sufficient knowledge and experience in financial matters to be capable of evaluating the risks of transactions in penny stocks. |
The broker or dealer must also deliver, prior to any transaction in a penny stock, a disclosure schedule prescribed by the SEC relating to the penny stock market, which, in highlight form:
| · | sets forth the basis on which the broker or dealer made the suitability determination; and |
| · | that the broker or dealer received a signed, written agreement from the investor prior to the transaction. |
Generally, brokers may be less willing to execute transactions in securities subject to the “penny stock” rules. This may make it more difficult for investors to dispose of our common stock and cause a decline in the market value of our stock.
Disclosure also has to be made about the risks of investing in penny stocks in both public offerings and in secondary trading and about the commissions payable to both the broker-dealer and the registered representative, current quotations for the securities and the rights and remedies available to an investor in cases of fraud in penny stock transactions. Finally, monthly statements have to be sent disclosing recent price information for the penny stock held in the account and information on the limited market in penny stocks.
The market price of our common stock may be adversely affected by several factors.
The market price of our common stock could fluctuate significantly in response to various factors and events, including:
| · | our ability to execute our business plan; |
| · | operating results below expectations; |
| · | announcements of technological innovations or new products by us or our competitors; |
| · | loss of any strategic relationship; |
| · | economic and other external factors; and |
| · | period-to-period fluctuations in our financial results. |
In addition, the securities markets have from time to time experienced significant price and volume fluctuations that are unrelated to the operating performance of particular companies. These market fluctuations may also materially and adversely affect the market price of our common stock.
We have not paid dividends in the past and do not expect to pay dividends in the future. Any return on investment may be limited to the value of our common stock.
We have never paid cash dividends on our capital stock and do not anticipate paying cash dividends on our capital stock in the foreseeable future. The payment of dividends on our capital stock will depend on our earnings, financial condition and other business and economic factors affecting us at such time as the board of directors may consider relevant. If we do not pay dividends, our common stock may be less valuable because a return on your investment will only occur if our common stock price appreciates.
A sale of a substantial number of shares of our common stock may cause the price of our common stock to decline.
If our stockholders sell substantial amounts of our common stock in the public market, including shares issued upon the exercise of outstanding options or warrants, the market price of our common stock could fall. These sales also may make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem reasonable or appropriate. Amendments to Rule 144 effective in February 2008 also substantially reduce holding periods and eliminate burdens such as filing notices sale for non-affiliated holders. The amendments to the Rule are applicable to the purchasers of securities prior to and following the effective date of the amendments
Provisions contained in outstanding secured convertible debentures provide holders a greater share in the proceeds of a cash sale or merger than the amount of the outstanding debt.
Certain provisions of the $11,051,709 principal amount outstanding 6% Secured Debentures require the redemption of such debentures and the warrants issued in connection with the sale of the debentures in the event of a cash sale of our business or cash merger that would give the debenture holders a return substantially greater than the outstanding debt and interest. Such payments would be made before cash could be distributed either to general creditors or the holders of our common stock. The sale of these debentures has been the principal source of our working capital since December 2005 and no authorization on the part of our stockholders is require for our continuing to issue these securities. Although we have sought and continue to seek equity financing to replace the sale of these securities as our primary source of working capital, we have not been able to do so and there is no assurance that we will be able to do so in the future.
Executive Officers of the Registrant
Our executive officers are:
| | Name | | Position | |
| | | | | |
| | Andreas Typaldos | | Chairman of the Board | |
| | | | | |
| | Oleg Logvinov | | President, CEO and a Director | |
| | | | | |
| | Barbara Kane-Burke1 | | CFO and Assistant Secretary | |
| | | | | |
| | Grant Ogata | | Executive Vice President of Worldwide Operations | |
Andreas Typaldos is a principal stockholder and was appointed Chairman of our Board in February, 2005. Although our by-laws provide that the Chairman of the Board’s primary responsibilities relate to the conduct of board and stockholder meetings, Mr. Typaldos also serves as a consultant to us on a part-time basis and has a significant impact on our strategic planning, marketing and capital raising activities. He has thirty years of software experience as an entrepreneur and founder/investor of a number of technology companies. In 1997, Mr. Typaldos founded Enikia, LLC, whose technology and assets were subsequently acquired by an entity controlled by Mr. Typaldos and merged into our Arkados, Inc. subsidiary in May 2004. Mr. Typaldos serves as CEO of Xandros, Inc., a privately held company, engaged in the sale of Linux desktop applications. From September 1998 until June 2003, as founder and principal investor, Mr. Typaldos also built a multi-million dollar software consulting business, e-Vantage Solutions, Inc., until that company’s consulting activities ended shortly after September 11, 2001. In addition, from September 1999 until December 2001, Mr. Typaldos was active as Interim Chairman and CEO at NetGain Development, Inc., which was an internet incubator/investment firm that funded internet and enabling technology companies, including Enikia, Linux Global Partners, and other internet and technology companies. Prior to that, Mr. Typaldos founded his first consulting and software company in 1973 and in 1978, founded a successor company, AxsOne (formerly known as Computron), which he took public in 1995 and of which he as President until 1994 and Chairman/CEO until 1996. AxsOne is an international client/server and internet-based enterprise applications software company that supplies Fortune 5000 companies with records and content management and compliance software (i.e., email and Instant Messaging-IM management), as well as financial applications and workflow solutions. Mr. Typaldos has a Bachelors of Science Degree from Columbia University in Mathematical Methods for Engineering and Operations Research. He also holds a Masters of Science Degree in Computer Science from Pratt Institute. Mr. Typaldos serves on the Board of Directors and Advisory Boards of a number of companies and non-profit organizations.
Oleg Logvinov was appointed President, CEO and a director on August 12, 2004 and has served as President of Arkados since we merged Miletos into Arkados. Prior to the merger, from February, 2000 to March, 2004, Mr. Logvinov served as Vice President of Engineering and later as President of Enikia LLC. From March, 1998 to February, 2000, he served as Senior Director of Product Development and System Engineering at OpenCon Systems Inc., a telecommunications software service provider, and later CyberPath Inc., a venture-funded VoDSL Gateway company spun off by OpenCon Systems Inc. Prior to that, he held senior management positions at NITECH, INC from1996 to 1998, and CEM, Inc from 1991 to 1996. Mr. Logvinov holds a masters degree in electrical engineering from the Technical University of Ukraine (KPI). He has also worked as a senior research scientist and later research team leader at an R&D laboratory at the Technical University of Ukraine and the Ukraine Department of Energy. Oleg Logvinov is the Chief Strategy Officer and immediate past President of the HomePlug Powerline Alliance. Mr. Logvinov is a frequent industry speaker, representing both the HomePlug alliance and Arkados at conferences around the world.
Barbara Kane-Burke was appointed CFO in April of 2007. She was most recently the Corporate Controller for Pharmos Corp, a NASDAQ-traded biopharmaceutical company where she was instrumental in helping Pharmos meet its financial disclosure obligations under Sarbanes-Oxley. Previously, she was CFO and Treasurer of Whitewing Environmental Corp, and with Hoechst Celanese/Clariant, where her duties included Controller for a business unit supplying raw materials to the semiconductor industry. Ms. Kane-Burke is responsible for all of Arkados’ accounting, tax compliance, financial aspects of acquisition planning, establishing and maintaining of banking relationships, and all other financial and treasury functions. Ms. Kane-Burke earned an MBA in Accounting and Taxation from Fairleigh Dickinson University and a BA in Education from East Stroudsburg University in Pennsylvania.
1 Ms. Kane-Burke tendered her resignation as an officer, effective after the filing of this report.
Grant Ogata joined Arkados in March 2007 as Executive Vice President of Worldwide Operations. Mr. Ogata had been working with Arkados in a part-time capacity since September 2006. Mr. Ogata was formerly Vice President of Global Sourcing and Product Development of RadioShack Corporation Mr. Ogata has 28 years of experience in the consumer electronics industry. At RadioShack, Mr. Ogata was responsible for developing hundreds of innovative products, establishing key strategic partners and managing global sourcing and product development offices in Japan, Taiwan, Hong Kong, China and Fort Worth, Texas. Throughout the years, and through a six-year expatriate assignment in Asia, Mr. Ogata gained intricate knowledge and contacts with key consumer electronic manufacturers around the world. He has been instrumental in beginning the transition of Arkados from a research and development company with solutions for distributing audio and video through power lines, to a commercial enterprise that provides these solutions to top tier companies globally.
| ITEM 1B. | UNRESOLVED STAFF COMMENTS. |
None.
| ITEM 2. | DESCRIPTION OF PROPERTY. |
Our executive offices are located at 220 Old New Brunswick Road, Piscataway, NJ 08854. The facility is approximately 6,500 sq. feet, occupied pursuant to a lease which expires on June 30, 2009 and is adequate for our current activities. As a result of the acquisition of Aster Wireless in March of 2007, we also have offices located at 150 Lucius Gordon Dr., West Henrietta, NY 14586. The facility is approximately 1,041 sq. feet, occupied pursuant to a lease which expires on February 28, 2009 and is adequate for our current activities. We may add to the space or seek larger facilities as our operations expand.
| ITEM 3. | LEGAL PROCEEDINGS. |
In December 2004, Robert Dillon, William Simons and Stephen Schuster (the “Plaintiffs”) named us, our Arkados, Inc. subsidiary, Enikia, LLC, Oleg Logvinov, our CEO, Andreas Typaldos, our Chairman, and others in a lawsuit. The action is captioned Robert Dillon, et al. v. Andreas Typaldos et al., and was commenced in the Superior Court of New Jersey, Chancery Division, Somerset County (Docket No. C-12102-04). The plaintiffs seek damages and injunctive relief including, among other things entitlement to a portion of the Common Shares issued as consideration for Miletos, Inc. (an affiliate of Mr. Typaldos’) which merged into our Arkados subsidiary. Plaintiffs, allege, among other things, that they are entitled to various forms of equitable relief and unspecified damages, as a result of the transfer of secured obligations of Enikia LLC held by affiliates of Mr. Typaldos to Miletos and the merger of Miletos into our Arkados, Inc. subsidiary based on numerous legal theories, including fraud, breadth of fiduciary duty, misrepresentation, conversion, unjust enrichment and We do not believe there is any merit to these claims and intend to vigorously defend the action. The Superior Court entered an Order on August 7, 2007 dismissing, Enikia, LLC, Andreas Typaldos, Oleg Logvinov and Miletos, Inc. from the judicial proceeding and ordering them to attend binding arbitration of the claims against them. The remainder of the Superior Court matter is stayed pending arbitration Plaintiffs filed an arbitration venued in New York. The hearing is scheduled for October 20, 2008 with the American Arbitration Association, Case No: 13 117 Y 00150 08.
In August, 2008 a $58, 691.87 judgment was entered against the company in the matter of Porter Levay & Rose, Inc. v. Arkados Group, Inc. The case is pending in the Superior Court of New Jersey, Law Division, Middlesex County (Docket No. MID-L-008649-07) and involved non-payment of fees for investor relations services and expenses. Approximately $41,000 of the amount had already been accrued as of May 31, 2008 and we do not anticipate that the amount of the judgment exceeds the total amount accrued for such services as of August 31, 2008 by a material amount.
The outcome of any litigation is inherently uncertain and we are required under our certificate of incorporation, bylaws and employment agreements to indemnify our officers and directors for certain liabilities, including the cost of defending litigation brought against them in their capacity as such. Nevertheless, a portion of our indemnification liability is insured and shares of our common stock were escrowed at the time of the merger in which Arkados is the surviving corporation, to indemnify us against certain claims being made in the above actions.
| ITEM 4. | SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. |
None
PART II
| ITEM 5. | MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS. |
Our common stock is currently quoted on the Over-The-Counter Bulletin Board under the symbol “AKDS.OB”.
Market Information
Our shares of common stock were first quoted on the Over-The-Counter Bulletin Board in 1999. The following table presents the high and low bid prices per share of our common stock as quoted for the quarter ended August 31, 2008 and each quarter in the years ended May 31, 2008 and May 31, 2007 which information was provided by NASDAQ Trading and Market Services.
| | High Bid | | Low Bid | |
| First Quarter 2008 through : | | | | |
| | | | | |
| September 11, 2008 | $0.23 | | $0.23 | |
| | | | | |
| Fiscal Year ended May 31, 2008 | | | | |
| | High Bid | | Low Bid | |
| Quarter ended: | | | | |
| | | | | |
| May 31, 2008 | $0.45 | | $0.21 | |
| February 29, 2008 | $0.62 | | $0.25 | |
| November 30, 2007 | $0.65 | | $0.32 | |
| August 31, 2007 | $0.70 | | $0.36 | |
| | | | | |
| Fiscal Year ended May 31, 2007 | | | | |
| | High Bid | | Low Bid | |
| Quarter ended: | | | | |
| | | | | |
| May 31, 2007 | $0.45 | | $0.28 | |
| February 29, 2007 | $0.60 | | $0.16 | |
| November 30, 2006 | $0.70 | | $0.20 | |
| August 31, 2006 | $0.95 | | $0.51 | |
The above prices represent inter-dealer quotations, without markup, markdown or commissions, and may not represent actual transactions. The trading volume of our common stock fluctuates and may be limited or nonexistent from time to time. As a result, the above prices should not be considered to represent a liquid trading market.
Holders
As of September 10, 2008, we had 213 stockholders of record of our common stock.
Dividend Policy
We have paid no dividends on our common stock and we do not expect to pay cash dividends in the foreseeable future. The terms of the $11,051,709 principal amount outstanding of 6% Secured Convertible Debentures due December 28, 2008 prohibit our payment of any cash dividends or distributions without the consent of the holders of 60% of the principal amount outstanding at the time of such dividend or distribution. We currently do not have surplus from which we could pay dividends and intend to retain any future earnings to finance the growth and development of our business.
Recent Sales Of Unregistered Securities; Use Of Proceeds From Registered Securities
Information concerning our sales of unregistered securities during the period covered by this report has been reported by us on previously filed reports on Form 10-QSB and Form 8-K.
Equity Compensation Plan Information
The following table sets forth certain information about our equity compensation plans and agreements as of May 31, 2008:
Plan Category | Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) | Weighted-average exercise price of outstanding options, warrants and rights (b) | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a) (c) |
| | | | |
Equity compensation plans approved by security holders | — | | 60,000 |
| | | | |
Equity compensation plans not approved by security holders | 14,972,381 | $0.51 | 207,619 |
| | | | |
| Total | 14,972,381 | | 267,619 |
Our board adopted a stock option plan in 1998 which was approved by stockholders. The plan reserved 3,000,000 shares of old common stock for issuance upon the granting of incentive and non-qualified stock option until June 30, 2008 with terms up to 10 years from the dated of grant. As a result of a reverse stock split the number of shares available for grant was reduced to 60,000.
In 2004, our board approved our 2004 Stock Option and Restricted Stock Plan (the “2004 Plan”) and set aside 6,000,000 shares for grant pursuant to incentive and non-qualified stock options, and restricted stock awards. The 2004 Plan was amended by the board in June 2006, to increase the number of shares subject to options that can be granted to our officers, directors, employees and consultants to 10,000,000; it was later amended in March 2007 to increase this amount to 15,000,000. The 2004 Plan has not been approved by our stockholders and accordingly, no “incentive stock options” as defined in the Internal Revenue Code can be granted until such approval is obtained. The 2004 plan is currently administered by our board of directors. There are options to purchase 14,972,281 shares outstanding under the 2004 Plan, as amended, of which 9,046,548 are vested as of M ay 31, 2008..
In March 2006, our board approved the issuance of 180,000 warrants to purchase shares of our common stock for $0.85 per share to an investor relations consultant. The issuance of the warrants has not been approved by our stockholders.
In March 2007, our board approved the issuance of 240,000 options to purchase shares of our common stock for $0.40 per share to an investor relations consultant. The issuance of the options has not been approved by our stockholders.
In April 2008, our board approved the issuance of 150,000 options to purchase shares of our common stock for $0.32 per share to a legal consultant. The issuance of the options has not been approved by our stockholders.
| ITEM 6. | SELECTED FINANCIAL DATA |
The following selected financial data should be read in conjunction with, and are qualified in their entirety by, the consolidated financial statements and related notes thereto contained in “Item 8. Financial Statements and Supplementary Data” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” included herein.
| | | | | | | | | | | | | | | | | | |
| | | Year Ended May 31. | |
| | | | |
| | | 2008 | | 2007 | | 2006 | | 2005 | | 2004 | | |
| | | | | | | | | | | | | |
| Revenues | | | 856,676 | | | 131,735 | | | 112,094 | | | 832,910 | 1 | | | | |
| | | | | | | | | | | | | | | | | | |
| Operating expenses | | | 5,133,059 | 2 | | 5,325,180 | 2 | | 3,591,658 | | | 6,878,388 | | | 3,319,790 | | |
| | | | | | | | | | | | | | | | | | |
| Other income (expense), net | | | (2,307,219 | ) 3 | | (744,084 | ) | | (465,472 | ) | | (356,267 | ) | | (1,091,269 | ) | |
| | | | | | | | | | | | | | | | | | |
| Loss before income taxes | | | (6,879,148 | ) | | (6,033,075 | ) | | (4,025,016 | ) | | (7.001,365 | ) | | (4,410,059 | ) | |
| | | | | | | | | | | | | | | | | | |
| Net loss applicable to common shareholders | | | (6,478,999 | ) 4 | | (6,033,075 | ) | | (4,025,016 | ) | | (7,001,365 | ) | | (4,410,059 | ) | |
| | | | | | | | | | | | | | | | | | |
| Total assets | | | 1,390,689 | | | 1,424,905 | | | 594,987 | | | 492,163 | | | 1,424,905 | | |
| | | | | | | | | | | | | | | | | | |
| Long term obligations | | | — | 5 | | 8,237,061 | | | 4,255,789 | | | | | | | | |
| | | | | | | | | | | | | | | | | | |
| Cash dividends declared | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | |
| Net loss per share basic and diluted | | | (0.25 | ) | | (0.24 | ) | | (0.17 | ) | | (0.30 | ) | | (0.28 | ) | |
| | | | | | | | | | | | | | | | | | |
Weighted average of common shares Outstanding - basic and diluted | | | 26,134,528 | 6 | | 25,152,463 | 6 | | 23,777,360 | | | 23,174,359 | | | 2,504,517 | | |
| 1. | Includes revenues related for a long term arrangement for product development and supply with one client that ended during fiscal year 2006 |
| 2. | Increases related to the effect of the acquisition of Aster Wireless in the amounts of $520,879 and $146,746 in the year ended May 31, 2008 and May 31, 2007, respectively |
| 3. | Includes interest penalty of 1,004,701 resulting from of waiver all potential defaults by the debtholders caused by our not making a scheduled interest payment of approximately $255,000 |
| 4. | Includes benefit of sales of Arkados NJ Net Operating Loss in 2008 of $400,149, |
| 5. | As of May 31, 2008, all long term debt is due within the fiscal year 2009 and is therefore classified as short term debt. |
| 6. | Includes the issuance of 1,078,554 shares related to the acquisition of Aster Wireless |
| ITEM 7. | MANAGEMENT’S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS |
Readers are urged to carefully review and consider the various disclosures made by us in this Form 10-K for the period ended May 31, 2008, and our other filings with the U.S. Securities and Exchange Commission. These reports and filings attempt to advise interested parties of the risks and factors that may affect our business, financial condition and results of operations and prospects. The forward-looking statements made in this Form 10-K speak only as of the date hereof and we disclaim any obligation to provide updates, revisions or amendments to any forward-looking statements to reflect changes in our expectations or future events.
Plan of Operation
We are a technology solutions company engaged in research and development activities focused on the portion of the industry that provides the semiconductors and software to enable broadband communications over standard electricity lines. Arkados is member of an alliance of nearly 70 companies referred to as the HomePlug Powerline Alliance. The alliance’s mission is to enable and promote rapid availability, adoption and implementation of cost effective, interoperable and standards-based home powerline networks and products. Arkados is also a member of the IEEE P1901 working group that is focused on the standardization of powerline communication technology.
During the year ended May 31, 2008:
| · | Our customers have now brought consumer products incorporating our chip solutions to market in several areas of the world. Our solutions form the engine of products for the audio market being marketed by the German company devolo AG. Devolo’s audio adapters, which transmit audio over household power lines, are currently in retail stores throughout Europe. |
| · | We provide the underlying technology for an iPod-based whole-house audio system from IOGEAR, which is coming to market in the near future in the U.S. and other parts of the world. This product has already won a major award, having been one of only 15 products (out of over 20,000) to receive G4 Television’s CES 2008 “Best of the Best” product award. |
| · | Additionally, we recently announced our plans to release a reference design that will allow manufacturers to embed Arkados chip-and-software solutions into a device that enables the control of whole-house audio systems from Apple’s iPhone™ or iPod® which may allow us to take advantage of the demonstrated market strength of iPod-related products. |
| · | We have also announced customers such as audio system manufacturer Russound, powerline networking specialist GigaFast. |
| · | We have also been involved with our customers in a number of projects relating to Broadband Over Powerline and Smart Grid trials. We have announced that our solutions are being used for Smart-grid application companies Corporate Systems Engineering and MainNet. We are currently partnering with MainNet Communications to develop applications to improve the reliability and efficiency of electrical grids, connect consumer electronic devices over power lines, enable energy-saving initiatives and deliver Broadband content to homes and offices. Based on this deal, our future opportunities to create smart grid applications may be significant. |
| · | We continued to increase our focus on sales and marketing and customer acquisition, after developing and demonstrating reference designs and prototypes of end-user products that incorporated our AI-1100 chip, the first in our family of ArkTIC® solutions, and demonstrated its capabilities and competitive advantages. |
| · | Our solutions have been displayed in a number of public venues, including the 2008 International Consumer Electronics Show, where Arkados received G4 Television’s “Best of the Best” award. Other venues included Computex 2008, the 2007 HomePlug Powerline Technology Conference, the Electronic House Expo (EHX), Net-at-Home 2007, the 2007 HomePlug European Executive Seminar, and other conferences. Our prototypes or products have been publicly announced and/or demonstrated by Analog Devices, Channel Vision, devolo AG, GigaFast, GoodWay, Meiloon, PAC Electronics, Russound, Tatung, Zinwell, and Zylux. Some of these companies are suppliers to top tier brands in the marketplace. Several of these relationships, among others, have progressed into sales of chips, software development services, and other related revenue. |
| · | We have participated in a broad variety of public events and conferences including the 2008 CES, WinHEC, HomePlug Executive Seminars, GlobalComm, United Powerline Technology Counsel events, Computex, Digital Hollywood, Intel Developer’s Forum, HomePlug Powerline Technology Conferences, Net@Home, Parks Associates’ Connections conferences, ACCESS ’06 Executive business forum, CEDIA and CeBIT. |
We continue to demonstrate our chip and reference design products to individual potential customers, including both OEMs and ODMs. Such potential customers, if they ultimately agree to design our chips into their end-user products (as is the case with OEMs) or in the products of their own OEM customers (as is the case with ODMs), could be responsible for the introduction of multiple end-user products into the market, based on the timetables required for such product introductions. Such an event could produce multiple revenue streams, including revenues from each potential OEM customer that uses our chips in their end-user products. In the case of each potential ODM customer that uses our chips in the designs of the multiple OEM customers served by each ODM, there could be multiple revenue streams attributable to each ODM that chooses to work with our chips. In both cases, however, such revenue streams will affect future quarters, based on the timetable associated with the deployment of end-user products by such OEM and ODM customers. Thus far, two such ODMs and seven OEMs have publicly announced their offering of a product incorporating our AI-1100 SoC.
We believe the sales listed above marked the beginning of our transition from a research and development entity to a commercial enterprise. As a part of actively pursing key strategic customers, we have used our hardware/software platform to customize prototypes for specific accounts.
We have positioned ourselves to service significant demand from any major electronics or networking manufacturer. We have held discussions at various levels with household names in those industries, and we believe that many of these talks may lead to firm orders in growing quantities.
We require additional funding for the expansion of our research and development efforts and the expansion of our sales and marketing organization, and to fund consulting and manufacturing work needed in order for our chip to be ready and available for mass production. We also plan to develop various end-user product prototypes and reference designs to support our marketing efforts.
We will contract with third parties for all of our wafer fabrication and assembly, as well as for a portion of our design and testing. This “fabless” manufacturing strategy is designed to allow us to concentrate on our design strengths, minimize fixed costs and capital expenditures, access advanced manufacturing facilities, and provide flexibility on sourcing multiple leading-edge technologies through strategic alliances.
We expect to qualify each product, participate in process and package development, define and control the manufacturing process at our suppliers where possible and practicable, develop or participate in the development of test programs, and perform production testing of products in accordance with our quality management system. If possible, we plan to use multiple foundries, assembly houses, and test houses.
We have not had significant revenue from operations since inception and, as of May 31, 2008, are still a development stage company. Furthermore, we have financed operating losses since September 2004 with the proceeds primarily from related party lending from our major stockholder and affiliated lenders, as well as other stockholders and lenders, and from a capital raise to qualified investors through a retail brokerage firm. From December 2005 to May 31, 2008, we sold an aggregate $8,428,461 of 6% secured convertible debentures due December 28, 2008 of which $6,145,884 was purchased by institutional investors and the balance of $2,282,576 by a limited liability company owned equally by our Chairman’s wife and another director, Kathryn Typaldos and $45,000 principal amount to the partners of Sommer & Schneider LLP, our principal securities counsel to settle an equivalent amount of past due legal fees. During the fiscal year 2006, we paid down a substantial portion of outstanding short term debt and other liability and have issued approximately 600,000 shares of our common stock in satisfaction of approximately $406,000 of short term liabilities. From June 1, 2008 to August 31, 2008, we received approximately $649,000 of financing which was converted into equity in August 2008. In addition, we received an additional $20,000 which represents borrowings from related parties. Despite these milestones in improving our financial position, our business plan to aggressively market our chips remains constrained by our limited capital resources
If we are unable to raise funds to finance our working capital needs, we will not have the capital necessary for ongoing operations and for making our chip ready for mass production and we could lose professional staff necessary to develop our products and the value of our technology could be impaired. In addition, the lack of adequate funding could jeopardize our development and delivery schedule of our planned products. Such delays could in turn jeopardize relationships with our current customers, strategic partners and prospective suppliers.
Critical Accounting Policies
Financial Reporting Release No. 60 requires all companies to include a discussion of critical accounting policies or methods used in the preparation of financial statements. Our accounting policies are described in Note 2 of the notes to our consolidated financial statements included in this report. Our consolidated financial statements are prepared in accordance with accounting principles generally accepted in the United States of America, which requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. The following is a brief discussion of the more significant accounting policies and methods used by us. In addition, Financial Reporting Release No. 67 was recently released by the SEC to require all companies to include a discussion to address, among other things, liquidity, off-balance sheet arrangements, contractual obligations and commercial commitments.
Basis of Presentation
Our consolidated financial statements have been prepared assuming we will continue as a going concern despite substantial doubt as to our ability to do so. Management anticipates losses in the foreseeable future and plans to finance losses by raising additional capital. If we are unable to continue as a going concern, adjustments would have to be made to the carrying value of assets.
Revenue Recognition
We recognize revenue in accordance with SEC Staff Accounting Bulletin No. 101, Revenue Recognition in Financial Statements, as amended (“SAB 101”). SAB 101 requires that four basic criteria must be met before revenue can be recognized: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred or services rendered; (3) the fee is fixed or determinable; and (4) collectability is reasonably assured. Under the provisions of SAB 101, we recognize revenue when products are shipped, and the collection of the resulting receivable is probable. If revenues are from a long term arrangement, revenue are recognized when pre-determined milestones, which generally are related to substantial scientific or technical achievement, are accomplished.
Accounting for Stock Based Compensation
The computation of the expense associated with stock-based compensation requires the use of a valuation model. SFAS 123(R) is a new and very complex accounting standard, the application of which requires significant judgment and the use of estimates, particularly surrounding Black-Scholes assumptions such as stock price volatility, expected option lives, and expected option forfeiture rates, to value equity-based compensation. We currently use a Black-Scholes option pricing model to calculate the fair value of its stock options. We primarily use historical data to determine the assumptions to be used in the Black-Scholes model and have no reason to believe that future data is likely to differ materially from historical data. However, changes in the assumptions to reflect future stock price volatility and future stock award exercise experience could result in a change in the assumptions used to value awards in the future and may result in a material change to the fair value calculation of stock-based awards. SFAS 123(R) requires the recognition of the fair value of stock compensation in net income. Although every effort is made to ensure the accuracy of our estimates and assumptions, significant unanticipated changes in those estimates, interpretations and assumptions may result in recording stock option expense that may materially impact our financial statements for each respective reporting period.
Accounting for Registration Payment Arrangements
The Company has reviewed the accounting for registration rights terms relating to the shares of common stock issuable upon the conversion and exercise, respectively, of the 6% Secured Convertible Debentures and related warrants under the recently adopted FSP EITF 00-19-2. The Company granted demand registration rights to the purchasers of the 6% Secured Debentures which requires the Company to file an initial registration 45 days following demand. Under the registration rights agreement, the Company incurs a penalty if it fails to file within the 45 day period or if the SEC had not declared the registration effective 90 days after filing. The holders of the 6% Secured Debentures have not demanded registration. The Company believes it can comply with a demand for registration in a timely manner and therefore no accrual for the registration rights penalties has been made.
The Year ended May 31, 2008
During the year ended May 31, 2008, we had $857,000 of revenues compared to $132,000 for the same period in 2007. Revenues were a combination of revenues from chip sales in the amount of $246,000 and revenues from service contracts in the amount of $611,000 related to the achievement of certain milestones remaining under a number of long term development contracts. The chips are to be used in audio adaptors and iPod® docking stations which were demonstrated at CES earlier this year, as well as in other applications. Total operating expenses for the year ended May 31, 2008 were $5.1 million compared to total operating expenses for the same period of 2007 of $5.3 million. In both periods, the most significant expenses were personnel, professional fees and related expenses. Of the total $5.1 million in operating expenses in fiscal 2008, $866,636 was related to the issuance of stock and stock options for services rendered by both our employees and outside consultants. As result of the increase in outstanding debt, our interest expense increased during the year from $744,000 in 2007 to $2,307,000 in 2008 which includes an interest penalty related to the 6% secured debentures.
The Year ended May 31, 2007
During the year ended May 31, 2007, we had $132,000 of revenues compared to $112,000 for the same period in 2006. Revenues were a combination of revenues from chip sales in the amount of $78,000 and revenues from service contracts in the amount of $54,000 related to the achievement of certain milestones remaining under a long term development contract. The chips are to be used in an iPod® dock which was demonstrated at CES earlier this year, as well as in other applications. Total operating expenses for the year ended May 31, 2007 were $5.2 million compared to total operating expenses for the same period of 2006 of $3.6 million. In both periods, the most significant expenses were personnel, professional fees and related expenses, which increased in the most recent period as we demonstrated our products and increased marketing staff and efforts. Of the total $5.3 million in operating expenses in fiscal 2007, $959,000 was related to the issuance of stock and stock options for services rendered by both our employees, Chairman and outside consultants. The incremental cost related to the Aster acquisition recognized in the 4th quarter alone was $147,000. As result of the increase in outstanding debt, our interest expense increased during the year from $465,000 in 2006 to $744,000 in 2007.
The Year ended May 31, 2006
During the year ended May 31, 2006, we had revenues of $112,000 which were realized as the result of achieving certain benchmarks in a long term arrangement for services and products with one client compared to $832,910 realized from activities with the same client during the prior year. We estimated gross margin from the receivable based upon cost estimates we prepared for the provision of all of the services and products in the arrangement. We recorded $78,000 of labor, material and supplies, and outside fabrication cost as Cost of Goods Sold relying on these estimates, compared to $599,620 during the prior year. Total operating expenses for the year ended May 31, 2006 were $3.6 million compared to $6.9 million in the same period of fiscal year 2005. In both periods, the most significant expenses were personnel, professional fees and related expenses. Research and development expenses during the year were $1.4 million. Of the total $4.6 million in operating expenses in fiscal year 2006, approximately $856,000 was related to the issuance of stock and stock options for services rendered by both our employees and outside consultants. In the prior year period, this amount was $4.85 million. Given our reliance on outside sources of capital, we expect significant additional charges relating to stock compensation.
Liquidity and Capital Resources
Our principal source of operating capital has been provided in the form of equity investments and, the private placement of debt securities coupled with warrants and related party loans. We do not have any significant sources of revenue from our operations. No assurance can be given that we can engage in any public or private sales of our equity or debt securities to raise working capital. We have depended, in part, upon loans from our present stockholders or management and there can be no assurances that our present stockholders or management will make any additional loans to us.
During the year ended May 31, 2008, we were able to raise gross proceeds of $855,000 from the sale of convertible notes and warrants to accredited investors. In addition, borrowings of $125,000 from outside investors and $177,700 from our Chairman. The net cash provided from these financing activities exceeded the amount of cash consumed by operations during the period by approximately $381,438.
On July 6, 2008, we reached an agreement with more than the requisite holders of 2/3 of the outstanding $1,066,500 principal amount of 6% Convertible Subordinated Notes due July 7, 2008 to extend the due date of the Notes to June 30, 2009.
There can be no assurance that our efforts to convert our outstanding debt or to raise additional capital will be successful, or even if successful will fund our planned operations or capital commitments.
As of the year ended May 31, 2008, we had cash of approximately $24,000 and negative working capital of $15,988,337 compared to cash of $406,457 and negative working capital of $2,739,224 at May 31, 2007. The decrease in working capital is related to the long term debt becoming current and higher payables balances. Subsequent to May 31, 2008, we received approximately $649,000 which was converted into equity in August 2008. In addition, we received an additional $20,000 which represents borrowings from related parties. All of these funds were used to support normal operating activities.
Our present material commitments are the compensation of our employees, including our executive officers, and professional and administrative fees and expenses associated with the preparation of our filings with the Securities and Exchange Commission and other regulatory requirements.
Commitments
We do not have any commitments which are required to be disclosed in tabular form as of May 31, 2008.
Off Balance Sheet Arrangements
We do not have any off balance sheet arrangements.
| ITEM 7A. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Not applicable.
| ITEM 8. | FINANCIAL STATEMENTS. |
Our financial statements are filed under this Item 8, beginning on page F-1 of this report.
Arkados Group, Inc. and Subsidiaries
Development Stage Enterprise
CONTENTS
| | Page |
| | |
| REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM | |
| | F – 1 |
| CONSOLIDATED FINANCIAL STATEMENTS | |
| | |
| Consolidated Balance Sheet | F – 2 |
| | |
| Consolidated Statement of Operations | F – 3 |
| | |
| Consolidated Statement of Changes in Stockholders’ Deficiency | F – 4 to 5 |
| | |
| Consolidated Statement of Cash Flows | F – 6 |
| | |
| NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS | F – 7 to F – 32 |
Report of Independent Registered Public Accounting Firm
Board of Directors and Stockholders
Arkados Group, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheet of Arkados Group, Inc. and subsidiaries (A Development Stage Enterprise) as of May 31, 2008, and the related consolidated statements of operations, stockholders’ deficit, and cash flows for each of the years ended May 31, 2008, 2007 and 2006 and for the period March 24, 2004 (inception) to May 31, 2008. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit. The financial statements for the period March 24, 2004 (inception) to May 31, 2004 reflect total revenues and a net loss of $0 and $693,833, respectively, of the cumulative totals. The other auditors’ report has been furnished to us in our opinion, insofar as it relates to amounts included for such period, is based solely on the report of such other auditors.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of May 31, 2008, and the results of its operations and cash flows for each of the years ended May 31, 2008, 2007 and 2006 and for the period March 24, 2004 (inception) to May 31, 2008 in conformity with generally accepted accounting principles in the United States.
The accompanying financial statements have been prepared assuming that Arkados Group, Inc. will continue as a going concern. As more fully described in Note 2, the Company has incurred recurring operating losses and will have to obtain additional capital to sustain operations. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 2. The financial statements do not include any adjustments to reflect the possible effects on the recoverability and classification of assets or the amounts and classification of liabilities that may result from the outcome of this uncertainty.
| | | |
| | |
| | | |
| | By: | /s/ Sherb & Co., LLP |
| | SHERB & CO, LLP |
| | Certified Public Accountants |
New York, New York
September 12, 2008
ARKADOS GROUP, INC. and Subsidiaries
Consolidated Balance Sheet
(A Development Stage Enterprise)
| | | May 31, | |
| | | 2007 | | | 2008 | |
| Current Assets: | | | | | | |
| Cash | | $ | 406,457 | | | $ | 24,480 | |
| Accounts receivable, net | | | 117,066 | | | | 34,976 | |
| Inventory | | | 34,334 | | | | — | |
| Total Current Assets | | | 557,857 | | | | 59,456 | |
| Deferred financing costs | | | 281,711 | | | | 899,073 | |
| Equipment, net | | | 46,916 | | | | 39,860 | |
| Intangible assets, net | | | 485,825 | | | | 293,883 | |
| Prepaid and other assets | | | 52,596 | | | | 98,417 | |
| | | $ | 1,424,905 | | | $ | 1,390,689 | |
| | | | | | | | | |
| Liabilities and Stockholders’ Deficiency | | | | | | | | |
| Current Liabilities: | | | | | | | | |
| Accrued expense and other liabilities | | $ | 1,293,675 | | | $ | 2,936,012 | |
| Related party payable | | | — | | | | 23,717 | |
| Related party debt | | | — | | | | 177,700 | |
| Note payable | | | — | | | | 125,000 | |
| Payroll taxes and related penalties and interest payable | | | 936,905 | | | | 936,906 | |
| Short Term Debt | | | 1,066,500 | | | | 11,848,458 | |
| Total Current Liabilities | | | 3,297,080 | | | | 16,047,793 | |
| Convertible Debentures, including related party debt | | | 8,237,061 | | | | — | |
| Commitments and Contingencies | | | — | | | | — | |
| Stockholders’ Deficiency | | | | | | | | |
| Convertible Preferred Stock - $.0001 par value; | | | | | | | | |
| 5,000,000 shares authorized, zero shares outstanding | | | — | | | | — | |
| Common stock, $.0001 par value, 100,000,000 shares | | | | | | | | |
| authorized, 26.082,221 and 26,278,888 issued and outstanding in 2007 and 2008, respectively | | | 2,608 | | | | 2,628 | |
| Additional Paid in capital | | | 15,934,712 | | | | 17,865,822 | |
| Treasury Stock | | | (16,000 | ) | | | (16,000 | ) |
| Accumulated Deficit during development stage | | | (26,030,556 | ) | | | (32,509,556 | ) |
| Total Stockholders’ deficiency | | | (10,109,236 | ) | | | (14,657,104 | ) |
| | | | | | | | | |
| | | $ | 1,424,905 | | | $ | 1,390,689 | |
See notes to consolidated financial statements.
ARKADOS GROUP, INC. and Subsidiaries
Consolidated Statement of Operations
(A Development Stage Enterprise)
| | | | | | | | | | | | Cumulative | |
| | | | | | | | | | | | During the | |
| | | | | | | | | | | | Development | |
| | | | | | Stage (March | |
| | | Year Ended May 31, | | | 24, 2004 to | |
| | | 2006 | | | 2007 | | | 2008 | | | May 31, 2008) | |
| Net Sales | | $ | 112,094 | | | $ | 131,735 | | | $ | 856,676 | | | $ | 1,934,088 | |
| | | | | | | | | | | | | | | | | |
| Cost of Goods Sold | | | 79,980 | | | | 95,546 | | | | 295,546 | | | | 1,071,365 | |
| | | | | | | | | | | | | | | | | |
| Gross Profit | | | 32,114 | | | | 36,189 | | | | 561,130 | | | | 862,723 | |
| | | | | | | | | | | | | | | | | |
| Research and Development Expenses | | | 1,395,257 | | | | 1,920,892 | | | | 1,987,313 | | | | 6,552,314 | |
| General and Administrative Expenses | | | 2,196,401 | | | | 3,404,288 | | | | 3,145,746 | | | | 15,069,804 | |
| | | | | | | | | | | | | | | | | |
| Net Loss From Operations | | | (3,559,544 | ) | | | (5,288,991 | ) | | | (4,571,929 | | | | (20,759,395 | ) |
| Interest Income (Expense) | | | (465,472 | ) | | | (744,084 | ) | | | (2,307,219 | ) | | | (3,873,042 | ) |
| | | | | | | | | | | | | | | | | |
| Net Loss Before Income Taxes | | | (4,025,016 | ) | | | (6,033,075 | ) | | | (6,879,148 | ) | | | (24,632,437 | ) |
| | | | | | | | | | | | | | | | | |
| Provision for Income Taxes | | | — | | | | — | | | | (400,149 | ) | | | (400,149 | ) |
| | | | | | | | | | | | | | | | | |
| Net Loss | | $ | (4,025,016 | ) | | $ | (6,033,075 | ) | | $ | (6,478,999 | ) | | $ | (24,232,288 | ) |
| | | | | | | | | | | | | | | | | |
| Net loss per share - basic and diluted | | $ | (0.17 | ) | | $ | (0.24 | ) | | $ | (0.25 | ) | | | | |
| Weighted Average of Common Shares | | | | | | | | | | | | | | | | |
| Outstanding - basic and diluted | | | 23,777,360 | | | | 25,152,463 | | | | 26,134,528 | | | | | |
See notes to consolidated financial statements.
ARKADOS GROUP, INC. and Subsidiaries
Consolidated Statement of Stockholders’ Deficiency
(A Development Stage Enterprise)
Inception March 24, 2004 to May 31, 2004 and the Years Ended May 31, 2005, 2006 2007, and 2008
| | Preferred Stock | | Common Stock | | Additional Paid in | | Accumulated Deficit During Development | | Treasury | | Total Stockholders’ | |
| | Shares | | Amount | | Shares | | Amount | | Capital | | Stage | | Stock | | Deficiency | |
| Balance as of March 24, 2004 | | | | | | | | | | | | | | | | | | | | | | | |
| Post foreclosure sale | — | | $ | | | | 5,569 | | $ | 5,569 | | $ | 1,988,185 | | $ | (8,277,267 | ) | $ | | | $ | (6,283,513 | ) |
| Effect of Reorganization and Merger–May 24, 2004 | | | | | | | 21,473,364 | | | (3,422 | ) | | 4,105,180 | | | | | | (16,000 | ) | | 4,085,758 | |
| Sale of shares pursuant to PPM | | | | | | | 841,666 | | | 84 | | | 950,116 | | | | | | | | | 950,200 | |
| Issuance of shares for settlement of debts | | | | | | | 181,068 | | | 18 | | | 168,185 | | | | | | | | | 168,203 | |
| Amortization of stock compensation | | | | | | | | | | | | | 359,537 | | | | | | | | | 359,537 | |
| Net loss (March 24,2004 to May 31, 2004) | | | | | | | | | | | | | | | | (693,833 | ) | | | | | (693,833 | ) |
| Balance as of May 31, 2004 | | | | | | | 22,501,667 | | | 2,250 | | | 7,571,202 | | | (8,971,100 | ) | | (16,000 | ) | | (1,413,648 | ) |
| Shares issued for services | | | | | | | 575,000 | | | 58 | | | 724,753 | | | | | | | | | 724,811 | |
| Debt converted to equity | | | | | | | 125,000 | | | 13 | | | 75,483 | | | | | | | | | 75,496 | |
| Issuance of options for services | | | | | | | | | | | | | 198,169 | | | | | | | | | 198,169 | |
| Valuation of equity rights and beneficial conversion features of debt raise | | | | | | | | | | | | | 234,353 | | | | | | | | | 234,353 | |
| Amortization of stock compensation | | | | | | | | | | | | | 3,617,681 | | | | | | | | | 3,617,681 | |
| Net Loss | | | | | | | | | | | | | | | | (7,001,365 | ) | | | | | (7,001,365 | ) |
| Balance as of May 31, 2005 | | | | | | | 23,201,667 | | | 2,321 | | | 12,421,641 | | | (15,972,465 | ) | | (16,000 | ) | | (3,564,503 | ) |
| Shares issued for services | | | | | | | 75,000 | | | 8 | | | 22,492 | | | | | | | | | 22,500 | |
| Debt converted to equity | | | | | | | 609,786 | | | 61 | | | 405,683 | | | | | | | | | 405,744 | |
| Shares issued for debt accommodations and penalties | | | | | | | 466,600 | | | 47 | | | 267,253 | | | | | | | | | 267,300 | |
| Options issued for services | | | | | | | | | | | | | 69,170 | | | | | | | | | 69,170 | |
| Valuation of equity rights and beneficial conversion features of debt raise | | | | | | | | | | | | | 404,555 | | | | | | | | | 404,555 | |
| Amortization of stock compensation | | | | | | | | | | | | | 497,347 | | | | | | | | | 497,347 | |
| Net Loss | | | | | | | | | | | | | | | | (4,025,016 | ) | | | | | (4,025,016 | ) |
| Balance as of May 31, 2006 | — | | $ | — | | | 24,353,053 | | $ | 2,437 | | $ | 14,088,141 | | $ | (19,997,481 | ) | $ | (16,000 | ) | $ | (5,922,903 | ) |
ARKADOS GROUP, INC. and Subsidiaries
Consolidated Statement of Stockholders’ Deficiency
(A Development Stage Enterprise)
Inception March 24, 2004 to May 31, 2004 and the Years Ended May 31, 2005, 2006 and 2007
| | Preferred Stock | | Common Stock | | Additional Paid in | | Accumulated Deficit During Development | | Treasury | | Total Stockholders’ | |
| | Shares | | Amount | | Shares | | Amount | | Capital | | Stage | | Stock | | Deficiency | |
| Balance as of May 31, 2006 | — | | $ | | | | 24,353,053 | | $ | 2,437 | | $ | 14,088,141 | | $ | (19,997,481 | ) | $ | (16,000 | ) | $ | (5,922,903 | ) |
| Shares issued for services | | | | | | | 475,000 | | | 47 | | | 341,953 | | | | | | | | | 342,000 | |
| Options issued for services | | | | | | | | | | | | | 197,923 | | | | | | | | | 197,923 | |
| Valuation of equity rights | | | | | | | | | | | | | 424,247 | | | | | | | | | 424,247 | |
| Amortization of stock compensation | | | | | | | | | | | | | 418,997 | | | | | | | | | 418,997 | |
| Exercise of options | | | | | | | 175,604 | | | 17 | | | 1,739 | | | | | | | | | 1,756 | |
| Issuance of common stock for Aster Acquisition | | | | | | | 1,078,564 | | | 107 | | | 461,712 | | | | | | | | | 461,819 | |
| Net loss | | | | | | | | | | | | | | | | (6,033,075 | ) | | | | | (6,033,075 | ) |
| Balance as of May 31, 2007 | | | | | | | 26,082,221 | | | 2,608 | | | 15,934,712 | | | (26,030,556 | ) | | (16,000 | ) | | (10,109,236 | ) |
| Shares issued for services | | | | | | | 196,667 | | | 20 | | | 63,480 | | | | | | | | | 63,500 | |
| Options issued for services | | | | | | | | | | | | | 105,448 | | | | | | | | | 105,448 | |
| Valuation of equity rights | | | | | | | | | | | | | 1,064,495 | | | | | | | | | 1,064,495 | |
| Amortization of stock compensation | | | | | | | | | | | | | 697,687 | | | | | | | | | 697,688 | |
| Net Loss | — | | | — | | | — | | | — | | | — | | | (6,478,999 | ) | | — | | | (6,478,999 | ) |
| Balance as of May 31, 2008 | — | | | — | | | 26,278,888 | | $ | 2,628 | | $ | 17,865,822 | | $ | (32,509,556 | ) | $ | (16,000 | ) | $ | (14,657,104 | ) |
See notes to consolidated financial statements.
ARKADOS GROUP, INC. and Subsidiaries
Consolidated Statement of Cash Flow
(A Development Stage Enterprise)
| | | | | | Cumulative During | |
| | | | | | the Development | |
| | | | | | Stage | |
| | | Year Ended May 31, | | | (March 24, 2004 | |
| Cash Flows From Operating Activities | | 2006 | | | 2007 | | | 2008 | | | to May 31, 2008) | |
| Net Loss | | $ | (4,025,016 | ) | | $ | (6,033,075 | ) | | $ | (6,478,999 | ) | | $ | (24,232,288 | ) |
| Adjustments to reconcile net loss to net cash provided | | | | | | | | | | | | | | | | |
| by (used) in operating activities: | | | | | | | | | | | | | | | | |
| Depreciation and Amortization | | | 103,428 | | | | 305,667 | | | | 503,341 | | | | 1,044,573 | |
| Common stock and warrants issued for services | | | 856,317 | | | | 958,920 | | | | 866,636 | | | | 7,582,071 | |
| Warrants and Beneficial Conversion Rights with Debt | | | 251,233 | | | | — | | | | — | | | | 485,586 | |
| Debt and Interest penalty | | | — | | | | — | | | | 1,004,701 | | | | 1,004,701 | |
| Accounts Receivable | | | 15,022 | | | | (107,668 | ) | | | 82,090 | | | | (34,976 | ) |
| Inventory | | | — | | | | (34,334 | ) | | | 34,334 | | | | — | |
| Deferred Expenses | | | (235,828 | ) | | | 145,429 | | | | 328,411 | | | | 59,260 | |
| Prepaid and Other assets | | | (27,225 | ) | | | (30,395 | ) | | | (45,821 | ) | | | (103,441 | ) |
| Payroll taxes and related penalties and interest payable | | | — | | | | (22,916 | ) | | | — | | | | (22,916 | ) |
| Related party payable | | | — | | | | — | | | | 23,717 | | | | 23,717 | |
| Accounts Payable and accrued expenses | | | (822,950 | ) | | | 648,754 | | | | 2,142,452 | | | | 2,110,531 | |
| Net Cash Provided by (Used) in Operating Activities | | | (3,885,019 | ) | | | (4,169,618 | ) | | | (1,539,138 | ) | | | (12,083,182 | ) |
| Cash Flows from Investing Activities | | | | | | | | | | | | | | | | |
| Purchases of capital expenditures and Patents | | | (1,174 | ) | | | (31,852 | ) | | | (540 | ) | | | (135,429 | ) |
| Net Cash Used in Investing Activities | | | (1,174 | ) | | | (31,852 | ) | | | (540 | ) | | | (135,429 | ) |
| Cash Provided by Financing Activities | | | | | | | | | | | | | | | | |
| Related party payables | | | 731,005 | | | | — | | | | 177,700 | | | | 1,576,726 | |
| Note Payable | | | — | | | | — | | | | 125,000 | | | | 125,000 | |
| Contribution of capital | | | — | | | | — | | | | — | | | | 1,232,646 | |
| Exercise of Stock Options | | | — | | | | 1,756 | | | | — | | | | 1,756 | |
| Repayment of debt | | | (344,256 | ) | | | — | | | | — | | | | (344,256 | ) |
| Issuance of Debentures | | | 3,942,384 | | | | 5,052,577 | | | | 855,000 | | | | 10,599,961 | |
| Repayment of related party payables | | | (452,621 | ) | | | (446,406 | ) | | | — | | | | (949,027 | ) |
| Net Cash Provided by Financing Activities | | | 3,876,512 | | | | 4,607,927 | | | | 1,157,700 | | | | 12,242,806 | |
| Net (Decrease) Increase in Cash | | | (9,681 | ) | | | 406,457 | | | | (381,977 | ) | | | 24,195 | |
| Cash, beginning of the period | | | 9,681 | | | | — | | | | 406,457 | | | | 285 | |
| Cash, end of the period | | | — | | | $ | 406,457 | | | $ | 24,480 | | | $ | 24,480 | |
| Supplemental disclosures of cash flow information: | | | | | | | | | | | | | | | | |
| Cash paid for interest during the year | | | 35,382 | | | | 757 | | | | 1,480 | | | | | |
| Cash paid for taxes during the year | | | — | | | | — | | | | — | | | | | |
| Non cash investing activities: | | | | | | | | | | | | | | | | |
| Acquisition of Aster Wireless | | | — | | | | 461,819 | | | | — | | | | | |
| Non cash financing activities: | | | | | | | | | | | | | | | | |
| Common stock and warrants issued for services | | | 92,210 | | | | 342,000 | | | | 63,500 | | | | | |
| Shares and warrants issued with debt and beneficial conversion feature rights | | | 671,855 | | | | — | | | | — | | | | | |
| Conversion of debt for equity | | | 405,744 | | | | — | | | | — | | | | | |
| Conversion of accrued interest to debt | | | | | | | 263,431 | | | | 500,116 | | | | | |
| Increase in debt as penalty | | | | | | | — | | | | 1,004,701 | | | | | |
| Debt discount | | | 153,322 | | | | 424,247 | | | | 1,064,495 | | | | | |
Notes to consolidated financial statements.
Arkados Group, Inc. & Subsidiaries (A Development Stage Enterprise)
NOTES TO FINANCIAL STATEMENTS
YEARS ENDED MAY 31, 2008, 2007 AND 2006
| 1. | DESCRIPTION OF BUSINESS |
Arkados Group, Inc. (the “Company”), pursuant to an “Agreement and Plan of Merger”, (“the Merger Agreement”) dated May 7, 2004 and consummated on May 24, 2004, merged a wholly owned subsidiary, CDK Merger Corp., with Miletos, Inc. (the “Merger”). CDK Merger Corp. was renamed “Arkados, Inc.” On August 30, 2006 the Company changed its name from CDKNET.COM, Inc. to Arkados Group, Inc. All references to CDKENT.COM, Inc. have been changed accordingly. Since Arkados Group, Inc. and subsidiaries prior to May 7, 2004 had no meaningful operations, this merger has been recorded as a reorganization of Arkados, Inc. via a reverse merger with Arkados Group, Inc.
The Company, a development stage enterprise, is a fabless semiconductor company providing integrated system-on-chip solutions that directly support networking, smart grid and multimedia applications. Arkados, “the HomePlug Applications Company,” delivers a universal platform that enables the effortless networking of home entertainment and computer devices using standard electricity lines. We also license some ingredient technologies for wireless multimedia solutions. The Company’s system-on-chip solutions are uniquely designed to drive a wide variety of powerline-communication solutions such as utility company applications, and powerline-enabled consumer electronics and home computing products, such as stereo components, radios, speakers, MP3 players, computers, televisions, gaming consoles, security cameras and cable and DSL modems. With Arkados’ solutions, customers can bring numerous sophisticated, full-featured products to market faster at a lower overall development cost using a single platform: the company’s versatile and programmable ArkTIC™ platform. Arkados solutions leverage the benefits of standard powerline communications technologies that are used worldwide for in-building and to-the-home Broadband Powerline (“BPL”) applications. The Company is a member of an industry alliance of several companies referred to as the HomePlug Powerline Alliance, “HomePlug”, for developing the standard of such technologies and is a member of the IEEE P1901 working group.
Miletos, Inc. was a newly established entity, which acquired the assets and business of Enikia, LLC in a public foreclosure sale on March 23, 2004 in exchange for the forgiveness of $4,000,000 of secured debt and the assumption of certain outstanding liabilities. The assets and certain liabilities acquired at the foreclosure sale have been recorded at historical cost basis. The new entity, Miletos, Inc. was predominately owned by a controlled group, which was the same controlled group of Enikia, LLC and the same group became majority holders.
The accompanying financials have been presented on a development stage basis using March 24, 2004 as the date of inception.
Pursuant to the Merger Agreement, the consideration for the merger consisted of 16,340,577 shares of the Company’s restricted common stock (250,000 of such common shares were contingent shares and were returned for cancellation as they were not called upon as a result of a breach of a warranty or representation) and 3,634,642 stock options at prices ranging from $.01 to $1.20 per share. In addition $950,200 was raised through the sale of equity for working capital of the Company.
| 2. | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
| a. | Basis of Presentation - The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. The Company has incurred net losses of approximately $24 million since inception including a net loss of over $6 million for the recent year ended May 31, 2008. Additionally, the Company had a net working capital deficiency and shareholders’ deficiencies at May 31, 2007 and 2008, and negative cash flow from operations since inception. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management expects to incur additional losses in the foreseeable future and recognizes the need to raise capital to remain viable. The accompanying consolidated financial statements do not include any adjustments that might be necessary should the Company be unable to continue as a going concern. |
| b. | Principles of consolidation - The consolidated financial statements include the accounts of Arkados Group, Inc. (the “Parent”), and it’s wholly owned subsidiaries. Intercompany accounts and transactions have been eliminated in consolidation. |
| c. | Business combinations We account for acquired businesses using the purchase method of accounting which requires that the assets and liabilities assumed be recorded at the date of acquisition at their respective fair values. Because of the expertise required to value intangible assets and intellectual property research and development “IPR&D”, we typically engage a third party valuation firm to assist management in determining those values. Valuation of intangible assets and IPR&D entails significant estimates and assumptions including, but not limited to: determining the timing and expected costs to complete projects, estimating future cash flows from product sales, and developing appropriate discount rates and probability rates by project. We believe that the fair values assigned to the assets acquired and liabilities assumed are based on reasonable assumptions. To the extent actual results differ from those estimates, our future results of operations may be affected by incurring charges to our statements of operations. Additionally, estimates for purchase price allocations may change as subsequent information becomes available. |
| d. | Cash and cash equivalents - The Company considers investments in highly liquid instruments with a maturity of three months or less to be cash equivalents. |
| e. | Allowance for doubtful accounts - The Company records a bad debt expense / allowance based on management’s estimate of uncollectible accounts. The Company has not recorded any bad debt expense in each of the years ended May 31, 2006, 2007 and 2008. |
| f. | Equipment - Equipment is recorded at cost. Depreciation is provided on the straight-line method based upon the estimated useful lives of the respective assets. Equipment is being depreciated over a period of seven years. Maintenance, repairs and minor renewals are charged to operations as incurred, whereas the cost of significant betterments is capitalized. Upon the sale or retirement of property and equipment, the related costs and accumulated depreciation are eliminated from the accounts and gains or losses are reflected in operations. |
| g. | Impairment of Long-Lived Assets - The Company reviews long-lived assets, certain identifiable assets and goodwill related to those assets on a quarterly basis for impairment whenever circumstances and situations change such that there is an indication that the carrying amounts may not be recovered. To the extent there has been any impairment such impairment has been record in the statement of operations. |
| h. | Fair Value of Financial Instruments - The carrying value of cash, accounts receivable, other receivables, accounts payable and accrued expenses approximate their fair values based on the short-term maturity of these instruments. The carrying amounts of debt were also estimated to approximate fair value. The Company can not estimate the fair value of the remaining outstanding payroll taxes, penalties and interest recorded in connection with the merger. |
| i. | Revenue Recognition - The Company derives revenues from two sources – sales of products and revenues related to service and custom development activities. For product sales, revenue is recognized when our products are shipped to our customers. Shipping documents and the completion of any customer acceptance requirements, when applicable, are used to verify product delivery or that services have been rendered. Shipping costs are charged to cost of sales as incurred. For sales related to development, the Company recorded revenues pursuant to a number of term development contracts. The revenues are earned and recorded are based on pre-determined milestones. When revenues within a pre-determined milestone have been partially earned, the Company records such progress billings as “Revenues earned not yet billed.” Such revenues are billable under the terms of the arrangement once the milestone has been fully completed. The Company also monitors estimated costs to complete such long term contract to the revenues to be earned to ensure that if there is an estimated loss to record to |
| | complete their obligation to fulfill the terms of such development contract, such loss existed. As of May 31, 2008, there were no long term contracts for which revenues were yet to be earned outstanding. |
| | |
| j. | Shipping and Handling Costs - Shipping and handling costs are normally FOB the Company’s factory, prepay and add. These costs are included in cost of goods sold. |
| k. | Inventory and Reserves – Inventories are stated on a first-in first-out basis at the lower of cost or market value. Cost includes fabricated wafers, purchased integrated circuits, subcontractor costs (such as assembly and test). Any write-down of inventory to reduce carrying value to lower of cost or market value is charged to cost of sales. |
| l. | Advertising Costs - All advertising costs, are expensed as incurred. The Company has not had any advertising costs in each of the last two years. |
| m. | Loss Per Share - Basic net loss per common share is computed by dividing net loss by the weighted average number of shares of common stock outstanding. For the years ended May 31, 2008, 2007 and 2006, diluted loss per share is the same as basic loss per share since the inclusion of approximately 15, 13 and 11 million stock options and warrants, respectively, and as well as 24, 9 and 5 million shares of common stock issuable upon conversion of convertible indebtedness, respectively, would be anti-dilutive. |
| n. | Stock Options – The Company adopted SFAS No. 123R, “Share Based Payments.” SFAS No. 123R requires companies to expense the value of employee stock options and similar awards and applies to all outstanding and vested stock-based awards. |
In computing the impact, the fair value of each option is estimated on the date of grant based on the Black-Scholes options-pricing model utilizing certain assumptions for a risk free interest rate; volatility; and expected remaining lives of the awards. The assumptions used in calculating the fair value of share-based payment awards represent management’s best estimates, but these estimates involve inherent uncertainties and the application of management judgment. As a result, if factors change and the Company uses different assumptions, the Company’s stock-based compensation expense could be materially different in the future. In addition, the Company is required to estimate the expected forfeiture rate and only recognize expense for those shares expected to vest. In estimating the Company’s forfeiture rate, the Company analyzed its historical forfeiture rate, the remaining lives of unvested options, and the amount of vested options as a percentage of total options outstanding. If the Company’s actual forfeiture rate is materially different from its estimate, or if the Company reevaluates the forfeiture rate in the future, the stock-based compensation expense could be significantly different from what we have recorded in the current period. The impact of applying SFAS No. 123R approximated $697,688, $418,997 and $497,347, respectively, in additional compensation expense for the twelve months ended May 31, 2008, 2007, and 2006. Such amount is included general and administrative expenses on the statement of operations.
In accordance with SFAS 123R, the fair value of each option grant has been estimated as of the date of the grant using the Black-Scholes option pricing model with the following weighted average assumptions:
The Company has recorded compensation expense for the years ended May 31, 2008, 2007 and 2006, in the amounts of $866,636, $958,918, and $566,517,respectviely attributed to the issuance and vesting of common shares, stock options and warrants for services.
| | | For Years Ended May 31 |
| | | 2008 | | 2007 | | 2006 |
| | Risk free interest rate | 2.05%-4.14% | | 5.00% | | 5.00% |
| | Expected life | 2-5 years | | 4 years | | 4 years |
| | Dividend rate | 0.00% | | 0.00% | | 0.00% |
| | Expected volatility | 65%-99% | | 43% | | 43% |
| o. | Use of Estimates - The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and revenues and expenses during the reporting period. Actual results could differ from those estimates. |
| p. | Comprehensive Income - SFAS No. 130, “Reporting Comprehensive Income”, establishes standards for reporting and displaying comprehensive income, comprising net income and other non-owner changes in equity, in the financial statements. For all periods presented, comprehensive income was the same as net income. |
| q. | Recent Accounting Pronouncements - |
In June 2008, the Financial Accounting Standards Board (“FASB”) issued EITF Issue No. 08-4, “Transition Guidance for Conforming Changes to Issue No. 98-5 “(“EITF No. 08-4”)”. The objective of EITF No. 08-4 is to provide transition guidance for conforming changes made to EITF No. 98-5, “Accounting for Convertible Securities with Beneficial Conversion Features or Contingently Adjustable Conversion Ratios” , that result from EITF No. 00-27 “Application of Issue No. 98-5 to Certain Convertible Instruments” , and SFAS No. 150, “Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity” . This Issue is effective for financial statements issued for
fiscal years ending after December 15, 2008. Early application is permitted. The Company is currently evaluating the impact of adoption of EITF No. 08-4 on the accounting for the convertible notes and related warrants transactions.
In May 2008, the FASB issued FASB Staff Position (“FSP”) No. APB 14-1, “Accounting for Convertible Debt Instruments That May Be Settled in Cash Upon Conversion (Including Partial Cash Settlement”). (“FSP APB 14-1”). FSP APB 14-1 clarifies that convertible debt instruments that may be settled in cash upon conversion (including partial cash settlement) are not addressed by paragraph 12 of APB Opinion No. 14, “ Accounting for Convertible Debt and Debt Issued with Stock Purchase Warrants”. Additionally, FSP APB 14-1 specifies that issuers of such instruments should separately account for the liability and equity components in a manner that will reflect the entity’s nonconvertible debt borrowing rate when interest cost is recognized in subsequent periods. FSP APB 14-1 is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those fiscal years. Early adoption is not permitted. The Company is currently evaluating the impact of the adoption of FSP APB 14-1 on the Company’s financial condition and results of operations.
In March of 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities” – An Amendment of FASB’s Statement No. 133, which expands the disclosure requirements in Statement 133 about an entity’s derivative instruments and hedging activities. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. The Company is currently evaluating the impact that adopting SFAS No. 161 will have on its financial position, cash flows, and statements of operations.
In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS No. 157”), which clarifies the definition of fair value, establishes guidelines for measuring fair value, and expands disclosures regarding fair value measurements. SFAS No. 157 does not require any new fair value measurements and eliminates inconsistencies in guidance found in various prior accounting pronouncements. SFAS No. 157 and FSP 157-b are generally effective for fiscal years beginning after November 15, 2007, and interim periods within those fiscal years. The effective date of SFAS No. 157 for certain non-financial assets and liabilities is fiscal years beginning after November 15, 2008 and for interim periods within those years. The adoption of SFAS No. 157 on January 1, 2008 did not have a material impact on our financial statement.
In February 2007, the FASB issued Statement of Financial Accounting Standards No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities ” (“SFAS No. 159”). SFAS No. 159 permits entities to choose to measure many financial instruments and certain other items at fair value that are not currently required to be measured at fair value. SFAS No. 159 also establishes presentation and disclosure requirements designed to facilitate comparisons between entities that choose different measurement attributes for similar assets and liabilities. SFAS No. 159 is effective for financial statements issued for fiscal years beginning after November 15, 2007. The adoption of SFAS No. 159 on May 31, 2008 did not have a material impact on our financial statements.
In December 2007, the FASB also issued SFAS No. 141 (revised 2007), “Business Combinations” (“SFAS No. 141(R)”). SFAS No. 141(R) will change the accounting for business combinations. Under SFAS No. 141(R), an acquiring entity will be required to recognize all the assets acquired and liabilities assumed in a transaction at the acquisition-date fair value with limited exceptions. SFAS No. 141(R) will change the accounting treatment and disclosure for certain specific items in a business combination. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. SFAS No. 141(R) will impact the Company in the event of any future acquisition.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements – An Amendment to ARB No. 51” (“SFAS No. 160”). SFAS No. 160 establishes new accounting and reporting standards for the non-controlling interest in a subsidiary and for the deconsolidation of a subsidiary. Specifically, this statement requires the recognition of a noncontrolling interest (minority interest) as equity in the Consolidated Financial Statements and separate from the parent’s equity. The amount of net income attributable to the noncontrolling interest will be included in consolidated net income on the face of the income statement. SFAS No. 160 clarifies that changes in a parent’s ownership interest in a subsidiary that do not result in deconsolidation are equity transactions if the parent retains its controlling financial interest. In addition, this statement requires that a parent recognize a gain or loss in net income when a subsidiary is deconsolidated. Such gain or loss will be measured using the fair value of the non-controlling equity investment on the deconsolidation date. SFAS No. 160 also includes expanded disclosure requirements regarding the interests of the parent and its non-controlling interest. SFAS No. 160 is effective for fiscal years beginning on or after December 15, 2008. Earlier adoption is prohibited. The Company is currently evaluating the impact that adoption of SFAS No. 160 will have on its financial position, cash flows or results of operations.
| 3. | ACQUISITION OF ASTER WIRELESS TECHNOLOGIES, INC. |
On March 3, 2007 we completed the merger (“Aster Merger) of Arkados Wireless Technologies, Inc., a wholly owned subsidiary of the Company (“Merger Sub”) with Aster Wireless, Inc. a Delaware corporation (“Aster”) pursuant to that Agreement and Plan of Merger dated February 13, 2007 by and among the Company, Merger Sub and Aster (the “Merger Agreement”). The assets and liabilities of Aster are recorded as of the acquisition date at their estimated fair values. The reported consolidated financial condition and results of operations of Arkados after completion of the Aster Merger reflects these values, but will not be restated retroactively to reflect the historical consolidated financial position or results of operations at Aster. Arkados issued 1,000,000 shares of Arkados common stock upon the cancellation of all shares of Aster capital stock outstanding. Under the terms of the Aster Merger, the Aster employees received 50% of their deferred payroll which was paid 50% in cash and the balance by the issuance of 78,564 shares of 50% in Arkados stock.
The purchase price is as follows (table in thousands):
| Fair value of Arkados shares issued at closing | | $ | 462 | |
| Transaction costs incurred by Arkados | | | 22 | |
| Purchase price | | $ | 484 | |
The fair value of the Arkados shares used in determining the purchase price was $0.43 per share, which was the price of Arkados common stock on the day that the closing took place, March 2,2007
The purchase price has been allocated based on a valuation of Aster’s tangible and intangible assets and liabilities an their following fair values (in thousands)
| Total current assets | | $ | 20 | |
| Property and equipment and other assets | | | 17 | |
| Intangible assets | | | 493 | |
| Total current liabilities | | | (74 | ) |
| Total | | $ | 462 | |
The Company’s 2007 consolidated statement of operations includes the results of operations from Aster from March 3, 2007 forward. The following table presents unaudited pro forma consolidated results of operations for Arkados for the years ended May 31, 2006 and 2007 as though the Aster acquisition was completed as of the beginning of each period.
| | | Year Ended May 31, 2006 | | | Year Ended May 31, 2007 | |
| Net loss attributable to common shareholders | | $ | (4,562,406 | ) | | $ | (6,576,100 | ) |
| Net loss per share attributable to common shareholders | | | | | | | | |
| Basic and diluted | | $ | (.18 | ) | | | (.25 | ) |
| Weighted average shares outstanding | | | 24,855,924 | | | | 25,982,128 | |
| 4. | CONCENTRATION OF CREDIT RISK |
The Company’s accounts receivable were concentrated with two customers. Accounts Receivable balances for the years ending May 31, 2008 and 2007 were $34,976 and $117,066, respectively on revenues of $856,076 and $131,735 for the same respective periods.
The Company may periodically have cash in excess of $100,000, the Federal Deposit Insurance Corp. “FDIC” insurable limit. As of May 31, 2008 the cash balance was $24,480, below the insurable limit.
At May 31, 2008 equipment consists of the following:
| Furniture | | $ | 14,878 | |
| | | | | |
| Computers | | | 10,840 | |
| | | | | |
| Equipment | | | 39,033 | |
| | | | | |
| Total | | | 64,751 | |
| | | | | |
| Less: Accumulated depreciation | | | (24,890 | ) |
Net | | $ | 39,861 | |
Depreciation expense for the years ended May 31, 2008 and 2007 was $7,000 and $4,000, respectively.
The Company owns 36 patents and patents pending, which are currently, being used in the development of the Company’s products. Excluding the value assigned to patents as part of the Aster acquisition, the Company had recorded $472,509 of gross patents costs and $463,403 of accumulated amortization as of May 31, 2008. The annual amortization of such intangible assets approximates $1,000 for the next year.
The Company has allocated the intangible assets associated with the Aster acquisition to Personnel, Patents and Technology. The total value, the number of years to be amortized, and the annual expense associated with such amortization are contained in the table below.
| | | Total Cost | | | # of years Amortization | | | Annual Amortization | | |
| Personnel | | $ | 113,750 | | | | 1 | | | $ | 113,750 | | Fully amortized |
| Patent | | | 227,500 | | | | 5 | | | | 45,500 | | |
| Technology | | | 152,203 | | | | 5 | | | | 30,441 | | |
| Total | | $ | 493,453 | | | | | | | $ | 189,691 | | |
| 7. | PAYROLL TAX LIABILITIES |
Enikia was in arrears for several years in its payment of federal and state payroll taxes. Pursuant to the Merger Agreement, the Parent assumed up to $1.2 million of the delinquent payroll taxes due and outstanding with the remaining difference an assumed liability of the major shareholder of the Company. During the year ended May 31, 2006, the Company made payments to both Federal and State of NJ taxing authorities in the amount of $874,000. The payments represented payroll taxes withheld by Miletos from its employees but not remitted to the taxing authorities. During the year ended May 31, 2008, an additional $64,106 payment was made to the State of NJ for payment of payroll taxes. Currently, there is $960,000 still recorded on the Company’s books as due and outstanding to both the federal and state tax authorities for penalties and interest incurred by Enikia related to its payroll liabilities. The Company does not believe that it has a legal obligation to pay anything more to any taxing authority, but until such clearance is received from the appropriate agencies, the Company has elected to keep the liability on its books.
| 8. | ACCRUED EXPENSES AND OTHER LIABILITIES |
As of May 31, 2008, accrued expenses and other liabilities consist of the following approximate amounts:
| | | Year Ended May 31, | | |
| | | 2008 | | | 2007 | |
| | | | | | | | | |
| Accounts payable | | $ | 1,307,239 | | | $ | 507,436 | |
| Accrued compensation | | | 1,019,557 | | | | 96,242 | |
| Accrued technical and engineering fees | | | — | | | | 47,202 | |
| Accrued interest payable | | | 482,941 | | | | 571,440 | |
| Liabilities assumed per merger agreement | | | 34,673 | | | | 34,673 | |
| Accrued other | | | 91,602 | | | | 36,682 | |
| | | $ | 2,936,012 | | | $ | 1,293,675 | |
| 9. | CONVERTIBLE DEBENTURES AND RELATED PARTY PAYABLES |
2004 6% Convertible Notes - During the period from October to November 2005, the Company borrowed $500,000 from certain of its existing stockholders for working capital needs and such obligation is represented by notes. The notes, recorded as Related Party Payables, bore interest at 6% per annum and contained certain conversion features which would have been triggered if the Company had sold equity at or above $1.25 per share. No expense was recorded for the beneficial conversion feature, since conversion price was always at or above market. The notes’ maturity was initially October 15, 2005, which was extended from time to time by the holders. In February 2006, them Company and holders of $175,000 of the outstanding principal of the notes agreed to discharge the Company’s obligations for 160,765 shares of common stock and the payment of $81,018. The remaining $325,000 of principal outstanding is due October 15, 2006 and is held by an affiliate of the Company’s Chairman of the Board.
10% Convertible Notes - - During the period from March 18, 2005 to May 12, 2005, the Company issued $750,000 of 10% convertible extendable notes initially due June 8, 2005 (the “10% Notes”). The due date of the 10% Notes was extended at the Company’s option to September 8, 2005 by the Company’s payment of an extension fee aggregating $20,000 for the entire issue and paying interest due on the 10% Notes to June 8, 2005. The Company paid $37,500 of principal with related interest on September 18, 2005 in full payment of two of the outstanding notes and obtained the extension of the $712,500 then remaining notes by paying an additional sum of $20,000 and issuing 85,000 shares of common stock to the remaining holders of the 10% Notes. An expense of $76,500 was recorded related to the issuance of the 85,000 shares of common stock, using a share price of $.90. The Company paid $22,167 of principal pursuant to a mandatory prepayment provision in September, 2005. Principal and accrued interest on the 10% Notes are convertible at the holders’ option into shares of the Company’s common stock only after an event of
default, as defined in the Notes at the lower of $0.67 or the average closing bid price of the Company’s common stock on the ten trading days preceding conversion. The conversion right is limited in that it may not be exercised by a holder to the extent it would result in such holder becoming the beneficial owner of more than 4.99% of the Company’s common stock. The 10% Notes were issued with 825,000 of three year common stock warrant exercisable for $0.67 per share in the basis of one warrant for each $1 of principal.
On December 20, 2005, the Company paid $261,398 in satisfaction of a portion of the 10% Notes, of which $254,333 was principal and $7,064 was interest. The Company previously reported that it did not make principal and interest payments totaling $707,591 due on December 8, 2005 to holders of the Notes and the grace period for such payment expired December 19, 2005. Holders of remaining $436,000 principal of the Notes agreed to extend the Maturity Date of the Notes to January 15, 2006 and waived all prior defaults. The remaining principal balance and interest was satisfied pursuant to agreements with the remaining holders of the 10% Notes on February 1, 2006 by the Company’s payment of $268,824 and the issuance of 293,116 shares of common stock.
$200,000 Short Term Borrowing - Beginning on June 10, 2005 and ending June 15, 2005, the Company borrowed an aggregate of $200,000 from two lenders that are not affiliates of the Company. During the quarter ended August 31, 2005 $100,000 of these notes were repaid and during the quarter ended November 30, 2005 the remaining $100,000 plus accrued interest on the notes was repaid.
2005 6% Convertible Notes - During the quarters ended August 31, 2005 and November 30, 2005, the Company raised $912,500 and $154,000, respectively, of gross proceeds from the private placement of an aggregate of 10.665 units (the “Units”) each consisting of $100,000 principal amount 6% convertible subordinated promissory notes (the “6% Notes”) and 14,286 detached warrants (the “Warrants”) to purchase a like number of shares of the Company’s common stock, for $0.35 per share. The Company issued an aggregate of 152,359 Warrants to the purchasers of the Units, which have been valued at $74,802 and will be amortized as interest expense over the term of the 6% Notes. In addition, the Company issued 238,213 common stock warrants exercisable at $0.65 as part compensation to the placement agent, which have been valued at $111,668 and will be amortized as interest expense along with other expenses of the offering. Both the $0.35 and $0.65 Warrants have a “net exercise” provision that permits the holder to convert the Warrants into shares of the Company’s common stock. The 6% Notes (1) are due July 7, 2007 with interest at the annual rate of 6% from the date of original issuance (increasing to 12% per annum from an event of default as defined in the 6% Notes); (2) are unsecured obligations of the Company and subordinated to senior secured loans to the Company (if any) from banks, finance companies and similar institutions that extend credit in the regular cause of such institution’s business; (3) are convertible, subject to certain conditions and at two different price levels ($1.125 and $1.575 for a period of twenty trading days following the bid price of common stock closing above $1.50 and $2.50, respectively, for a period of five consecutive trading days), into shares of common stock; and (4) may be redeemed by the Company in certain limited circumstances described below prior to maturity. Since the beneficial conversion feature of the 6% Notes is (at the lowest price) at a price greater than the market price of the stock upon issuance of the 6% Notes, no value has been estimated or recorded for the beneficial conversion feature.
On July 6, 2007, the Company reached an agreement with more that the requisite holders of 2/3 of the outstanding $1,066,500 principal amount of 6% Convertible Subordinated Notes due July 7, 2007 to extend the due date of the Notes to June 30, 2008. In exchange for the amendment, the Company agreed to issue approximately 188,200 three year warrants to purchase shares of the Company’s common stock for $0.85 per share and lowered conversion prices in the Notes to $0.85.
On July 9, 2008, Arkados Group Inc. (the “Company”) reached an agreement with more that the requisite holders of 2/3 of the outstanding $1,066,500 principal amount of 6% Convertible Subordinated Notes (the “Notes”) due June 30, 2008 to extend the due date of the Notes to June 30, 2009. In exchange for the amendment, the Company agreed to exchange approximately 876,100 shares of common stock, pro rata, for notes in the original principal amount of $306,618.
Related Party Borrowings - Through December 19, 2005, the Company borrowed $253,075 from three directors and one stockholder. These advances were due on demand with interest at the annual rate of 6% and $225,000 was paid on January 10, 2006. See subsequent event for conversion of the remaining balance into shares of the Company’s common stock with the holders.
From March 1, 2008 through May 31, 2008, the Company borrowed $177,700 from two directors. These advances were due on demand with interest at the annual rate of 6%.
6% Secured Debentures - - On December 19, 2005, the Company borrowed $267,900 from one of the accredited investors that ultimately purchased 6% secured convertible debentures (the “6% Secured Debentures”) in the December 28, 2005 financing. The loan was made on an unsecured basis, was due on demand and was forgiven in exchange for $267,900 of the $2.0 million principal amount of the 6% Secured Debentures and related warrants. On December 28, 2005, the Company issued $2.0 million aggregate principal amount and authorized $3.5 million 6% Secured Debentures to three institutional investors. The 6% Secured Debentures have a term of three years and mature on December 28, 2008, pay interest at the rate of 6% per annum, initially payable semi-annually on January 1 and July 1 of each year beginning July 1, 2006, and are secured by a grant of a security interest into substantially all of the Company’s assets. The Company may elect to pay interest on the 6% Secured Debentures in cash or in shares of common stock, subject to certain conditions related to the market for such shares stock and the registration of the shares issuable upon conversion of the 6% Secured Debentures under the Securities Act of 1933, as amended (the “Securities Act”).
The 6% Secured Debentures are convertible at any time at the option of the holder into shares of the Company’s common stock at a price of $0.85 per share, subject to adjustment as set forth therein. If, after the effective date of the registration statement we agreed to file under the Securities Act (the “Registration”), the closing price for the Company’s common stock exceeds $1.70 for any 20 consecutive trading days, The Company may, within one trading day after the end of such period, require the holders of the 6% Secured Debentures to immediately convert all or part of the then outstanding principal amount of their 6% Secured Debentures. The terms of the conversion rights also contain certain dilution provisions.
The Company has reviewed the accounting for registration rights terms relating to the shares of common stock issuable upon the conversion and exercise, respectively, of the 6% Secured Convertible Debentures and related warrants under the recently adopted FSP EITF 00-19-2. The Company granted demand registration rights to the purchasers of the 6% Secured Debentures which requires the Company to file an initial registration 45 days following demand. Under the registration rights agreement, the Company incurs a penalty if it fails to file within the 45 day period or if the SEC had not declared the registration effective 90 days after filing. The holders of the 6% Secured Debentures have not demanded registration. The Company believes it can comply with a demand for registration in a timely manner and therefore no accrual for the registration rights penalties has been made.”
On December 28, 2005, pursuant to the purchase agreements with the purchasers of the 6% Secured Debentures, the Company issued warrants to purchase an aggregate of 941,176 shares of common stock for $1.00 per share, on or prior to December 28, 2010 and short term warrants to purchase up to an aggregate of 941,176 additional shares of common stock for $0.85 per share, each subject to anti-dilution adjustments, including a “full ratchet down” to the purchasers of the 6% Secured Debentures. The short term warrants are exercisable at any time prior to the earlier of December 28, 2007 (subsequently changed to December 28, 2010) or twelve months after the effective date of the Registration Statement. If no effective registration statement is obtained after one year then such warrants have a cashless exercise option feature.
Upon the occurrence of certain events of default defined in the 6% Secured Debentures, including events of default under the transaction documents related to the financing, the full principal amount of the 6% Secured Debentures, together with interest and other amounts owing, become immediately due and payable, the principal obligation increases to 130% of the principal balance and the interest rate increases to 18%.
The transaction documents relating to the 6% Secured Debentures issued in December 2005 contained a covenant that the Company would obtain the conversion of an aggregate of $746,600 principal and related interest into shares of the Company’s Common Stock at or above $0.67 per share on or before January 15, 2006. On February 1, 2006, as part of the sale of an additional $375,884 of the 6% Secured Debentures described above, the Company and the holders of all outstanding 6% Debentures agreed to modify the covenant to permit the Company to issue 604,956 shares of common stock and pay $405,744 in full satisfaction of such outstanding principal and interest concurrently with the additional investment and waived prior defaults. Two of the parties that agreed to accept shares of common stock in lieu of repayment were directors of the Company, of which one received 75,078 shares in satisfaction of $50,303 of principal and interest and the other received 76,969 shares in lieu of $51,989 of principal and interest.
On February 1, 2006, and February 24, 2006 the Company issued $375,884 and $500,000, respectively, of additional principal of 6% Secured Debentures on substantially the same terms as those debentures issued on December 28, 2005. As a result, an aggregate of $2,875,884 of these debentures were outstanding as of February 28, 2006. On February 1, 2006 and February 24, 2006 the Company issued 176,887 and 235,294 additional short and long term warrants, respectively, to the purchasers of the additional 6% Secured Debentures. As a result, there were 1,353,357 short and 1,353,357 long term warrants outstanding as of May 31, 2007.
On March 31, 2006, the Company issued $500,000 additional principal of the 6% Secured Debentures to a limited liability company owned equally by the wife of our chairman and another director on substantially the same terms as the 6% Secured Debentures issued on December 28, 2005. After giving effect to this additional issuance, there was $3,375,884 principal amount of the 6% Secured Debentures outstanding, as well as 1,588,651 of the five year and 1,588,651 of the short term warrants outstanding.
The Company received an advance of $500,000 from one of the holders of 6% Secured Debentures on June 1, 2006. The advance was due on demand and forgiven in exchange for $500,000 principal amount of 6% Secured Debentures and related warrants on June 30, 2006.
The Company issued $1,773,471 aggregate principal amount of 6% Secured Debentures on June 30, 2006. The consideration received by the Company for the Secured Debentures consisted of $500,000 cash, forgiveness of repayment of the $500,000 advance received June 1, 2006, forgiveness of $773,470 related party debt due to Andreas Typaldos, the Company’s Chairman and principal shareholder and a limited partnership controlled by his wife. The debentures have a term of three years and mature on December 28, 2008. The 6% Secured Debentures pay interest at the rate of 6% per annum, payable semi-annually on January 1 and July 1 of each year beginning January 1, 2007. These debentures are on substantially the same terms as, and rank pari passu to, an aggregate of $3,875,884 of 6% Secured Debentures outstanding as of May 31, 2006. The Company issued 834,575 short term and 834,574 long term warrants to the purchasers of the 6% Secured Debentures and entered into a security agreement granting the purchasers a security interest in its assets to secure the Company’s obligations under the debentures. Obligations under the debentures are guaranteed by the Company’s wholly-owned operating subsidiary. At the same time, the outstanding short term warrants were amended to expire at the earlier of December 28, 2010 or the twelve months after the effective date of the Registration Statement.
On June 30, 2006, the Company signed a letter amendment to the consulting agreement with Andreas Typaldos dated May 21, 2004. The amendment removes the condition that the Company raise $1,000,000 of equity financing before paying consulting fees that accrued at the rate of $15,000 per month commencing June 1, 2006 as an inducement for Mr. Typaldos forgiving the $360,000 of accrued and unpaid fees in exchange for the $360,000 principal amount of 6% Secured Debentures and related warrants.
On August 18, 2006, the Company entered into an amendment agreement with the holders of the $3,875,884 principal amount of 6% Secured Debentures outstanding as of May 31, 2006, including a limited liability company owned by the wife of our Chairman, and one of our directors. The Amendment agreement makes material changes to the securities purchase agreements, warrants, registration rights agreements, security agreements and other ancillary documents we executed in connection with an aggregate of $3,875,884 of 6% debentures the Company sold during the period from December 28, 2005 to March 31, 2006. The material changes give the holders the same rights of redemption in the event of a cash purchase of our assets as those held by the of $1,773,470.83 aggregate principal amount of 6% Secured Debentures issued on June 30, 2006. As a result of the Amendment, all of the 6% Secured Debentures and warrants must be redeemed by the Company at a premium if it agrees to sell all of the Company’s assets to a third party for cash and cash equivalents. In addition, as a result of the amendment, all holders of the 6% Secured Debentures have the right to have shares of Common Stock issuable upon conversion of the debentures and exercise of the related warrants registered for resale under the Securities Act of 1933 within 60 days after receiving written demand of the holders of 60.1% of such securities and have it declared effective 90 days thereafter.
On September 26, 2006, October 19, 2006 and November 30, 2006, the Company issued $500,000, $500,000 and $400,000, respectively, of additional principal of the 6% Secured Debentures on substantially the same terms as the 6% Secured Debentures previously issued by the Company. The Company issued 658,824 short term and 658,824 long term warrants to the purchasers of the 6% Secured Debentures.
On January 8, 2007, the Company entered into an amendment agreement with the holders of the 6% Secured Debentures. The Amendment agreement makes material changes to the securities purchase agreements, warrants, registration rights agreements, security agreements and other ancillary documents we executed in connection with the 6% debentures the Company sold during the period from December 28, 2005 to January 8, 2007, including removing the negative covenant prohibiting the Company from issuing stock, warrants or convertible securities at a fixed price to finance its operations, permitting the issuance of additional secured debentures and warrants on the same terms as the outstanding such securities, and providing that interest due on the debentures on January 1, 2007 and July 1, 2007 be added to principal on those dates.
On January 8, 2007 and February 28, 2007, the Company issued $288,000 and $327,000, respectively, of additional principal of the 6% Secured Debentures on substantially the same terms as the 6% Secured Debentures previously issued by the Company. The Company issued 289,410 short and 289,410 long term warrants issued with these 6% Secured Debentures.
On September 26, 2006, October 19, 2006 and November 30, 2006, the Company issued $500,000, $500,000 and $400,000, respectively, of additional principal of the 6% Secured Debentures on substantially the same terms as the 6% Secured Debentures previously issued by the Company. The Company issued 658,824 short term and 658,824 long term warrants to the purchasers of the 6% Secured Debentures.
During the fourth quarter of 2007, the Company issued an aggregate of $1,264,106 of additional principal of the 6% Secured Debentures on substantially the same terms as the 6% Secured Debentures previously issued by the Company. The Company issued 594,874 short term and 594,874 long term warrants to the purchasers of the 6% Secured Debentures. The individual issuances are identified below:
| March 12, 2007 | | $ | 20,000 | |
| March 28, 2007 | | | 150,000 | |
| April 15, 2007 | | | 115,000 | |
| April 30, 2007 | | | 70,000 | |
| May 10,2007 | | | 380,000 | |
| May 31, 2007 | | | 529,106 | |
Total during the 4th quarter of 2007 | | $ | 1,264,106 | |
During the first half of 2008, the Company borrowed $855,000 at the times set forth below, on an unsecured basis from affiliates of the Company’s Chairman and two non-employee directors, with the understanding that these advances would be exchanged for additional 6% Secured Debentures and related warrants. Such an exchange is subject to the consent of the holders of outstanding 6% Secured Debentures or the satisfaction of the holders’ pre-emptive rights.
| July 10, 2007 | | $ | 215,000 | |
| August 3, 2007 | | | 150,000 | |
| August 22, 2007 | | | 50,000 | |
| August 27, 2007 | | | 20,000 | |
| August 31, 2007 | | | 50,000 | |
| September 28, 2007 | | | 100,000 | |
| October 16, 2007 | | | 60,000 | |
| October 30, 2007 | | | 90,000 | |
| November 7, 2007 | | | 70,000 | |
| November 19, 2007 | | | 50,000 | |
| Total during the 1st half of 2008 | | $ | 855,000 | |
On December 15, 2007, this related party debt was converted to additional principal of the 6% Secured Debentures on substantially the same terms as the 6% Secured Debentures previously issued by the Company. The Company issued 402,353 short-term and 402,353 long-term warrants to the purchasers of the 6% Secured Debentures. Based on the issuance date of the debentures, debt discounts were recorded in the third quarter of 2008 in the amount of $118,723, respectively for 402,353 short and 402,353 long term warrants issued with these 6% Secured Debentures.
The amortization recorded attributed to all the debt discounts amounted to $303,803 and has been recorded as interest expense for the year ended May 31, 2008.
On December 6, 2007, the Company entered into an Amendment Agreement with the holders of the outstanding 6% Secured Debentures which made material changes to the 6% Secured Debentures and other ancillary documents we executed in connection to an aggregate of $8,428,461 of 6% Secured Debentures sold to investors during the period from December 28, 2005 to May 31, 2007. The material changes were made, at the Company’s request, to facilitate the possible private placement of equity securities included:
| · | waiver of defaults which could have occurred as a result of the Company failing to make an interest payment of approximately $230,000 on January 1, 2008 until the earlier of an equity financing or March 3, 2008; |
| · | deferral of any request on the part of the holders of the 6% Secured Debentures, to require the filing of a registration statement under the Securities Act within 45 days of the request until April 15, 2008; |
| · | waiver of pre-emptive rights with respect to the equity financing; and |
| · | extending the maturity date of the 6% Secured Debentures twelve months to December 28, 2009 and converting all interest payments into additional principal (as of the date such payment is due) if the Company completes equity financing of $2.0 million on or before March 3, 2008. |
The Company also agreed to amend the 10,065,210 warrants outstanding and issued with the then outstanding 6% Secured Debentures to be consistent with the 804,706 new warrants issued December 15, 2007 by extending the expiration date from an outside date of December 28, 2010 to December 28, 2012 and removing any restriction on exercising the warrants on a cashless basis or any provision which accelerates the expiration date if the shares issuable on exercise of the warrants are registered for resale under the Securities Act.
During the 3rd quarter of 2008, a deferred expense was recorded in the amount of $774,789 for the extension of the expiration date of the warrants to December 28, 2012. The amortization recorded for the year 2008 was $103,306 and has been recorded as interest expense for the year ended May 31, 2008.
On April 2, 2008, the Company entered into a Waiver and Amendment Agreement with the holders of $9,283,461 issued principal amount of 6% secured convertible debentures due December 28, 2008. Pursuant to the Waiver and Amendment, the Holders agreed to waive all potential defaults caused by our not making a scheduled interest payment of approximately $255,000 which became due under the terms of the Debentures, as previously amended on March 3, 2008. The Holders agreed to add the interest due to principal and make such a waiver in exchange for the Company issuing additional Debentures equal to 10% of the principal amount of the Debentures held by the Holders (after adding the past due interest to principal).
As of May 31, 2008, there was a total of $11,051,709 in principal amount, including interest converted to debt totaling $763,547, of the 6% Secured Debentures and 9,328,494 warrants outstanding.
During fiscal year 2008, a debt discount was recorded of $118,723 for warrants issued with these 6% Secured Debentures. The amortization recorded attributed to the debt discounts amounted to $302,803 and has been recorded as interest expense for the year ended May 31, 2008.
The maturities of debt, including related party debt and excluding the debt discount of $269,751, are as follows:
| Year ended May 31, | 2008 | | $ | 1,066,500 | |
| | 2009 | | $ | 12,218,209 | |
| | 2010 | | $ | — | |
Other Obligations - As a consequence of the Company raising a aggregate of $3 million of financing since June 2004, pursuant to the Company’s May 2004 employment agreement with its chief executive officer, $91,875 of deferred salary payments for the period from May 2004 to January 2006 representing 24.5% of his agreed salary for such period and a bonus of $65,333 was due December 29, 2005. While the deferred salary of $91,875 has been paid, the bonus of $65,333 remains outstanding. The Company’s chief executive officer temporarily waived the right to receive immediate payment of the $65,333 until May 31, 2007. The Company’s failure to pay this bonus and other amounts due under the employment agreement gives the chief executive the right to terminate the agreement and continue to receive salary at the annual rate of $300,000 for twelve months following the date of such termination.
The Company has authorized the issue and sale of 6% Subordinated Notes due August 15, 2008 in the aggregate principal amount of not more than U.S. $500,000. Through year-end May 31, 2008, $125,000 was received as part of this Subordinated Note.
Included in accrued expenses and other liabilities as of May, 31, 2008 is unpaid accrued payroll of $954,224 (which includes three months of unpaid payroll for non-executive employees in the amount of $346,182 and approximately 3 quarters of unpaid executive payroll in the amount of $608,042), an unpaid bonus of $65,333 due to the Company’s CEO since December 2005 and unpaid expense reimbursement of approximately $79,000 due to executive officers. As of August 31, 2008, the Company had accrued and unpaid aggregate payroll of $1,432,966.
Related Party Activities - As of February 29, 2008, the Company has reported a related party payable in the amount of $23,717 which represents funds that were advance to the Company by one of the Officers of the Company.
In aggregate, $4,162,893 of the $11,051,709 of 6% Secured Debentures is held by related parties.
At May 31, 2008, the Company has available unused net operating loss carryovers approximately $23,000,000 that may be applied against future taxable income and expire at various dates through 2028. The Company has a deferred tax asset arising from such net operating loss deductions and has recorded an increase to the full valuation allowance in the amount of $1,500,000 for the year ended May 31, 2008 since the likelihood of realization of the tax benefits cannot be determined.
| | | 2008 | |
| Deferred tax asset: | | | |
Net operating loss carryforward | | $ | 8,050,000 | |
Valuation allowance | | | (8,050,000 | ) |
Net deferred tax asset | | $ | — | |
A reconciliation of the statutory federal income tax benefit to actual tax benefit is as follows:
| | Year ended May 31, |
| | 2008 | | 2007 | | 2006 |
| | | | | | |
| Statutory federal income tax benefit | 35% | | 35% | | 35% |
Permanent timing differences - equity rights | (11%) | | (8%) | | (25%) |
| Income tax benefit not utilized | (18%) | | (27%) | | (10%) |
| State tax benefit | (6%) | | | | |
The Company has had greater than 50% change in ownership of certain stock holdings by shareholders of the Company pursuant to Section 382 of the Internal Revenue Code, the net operating losses may be limited as to its utilization on an annual basis. Currently no such evaluation has been performed.
In 2007, the Company sold $4,635,185 of its State Net Operating Loss carryforwards under the State of New Jersey’s Technology Business Tax Certificate Transfer Program (the Program”). The Program allows qualified technology and biotechnology businesses in New Jersey to sell unused amounts of net operating loss carryforwards and defined research and development tax credits for cash. The proceeds from the sale in 2007, net of commissions, were $400,149 and were recorded as a tax benefit in the accompanying statements of operations. The State renews the Program annually and currently limits the aggregate proceeds to $60,000,000. We cannot be certain if we will be able to sell any of our remaining or future New Jersey loss carryforwards or tax credits under the Program.
| 11. | SHAREHOLDERS’ DEFICIENCY |
2004 transactions
| | a. | On May 7, 2004, CDKNET.com, Inc and Miletos entered into an “Agreement and Plan of Merger” (“the Merger Agreement”). On May 24, 2004, the merger was consummated between a wholly owned subsidiary of CDKNET.com, Inc (CDK Merger Corp) and Miletos, Inc. The successor subsidiary was renamed Arkados, Inc. Because CDKNET.com, Inc and its subsidiaries had no meaningful operations prior to May 7, 2004 and equity ownership in CDKNET.com, Inc. in an amount greater than 50% was issued to the shareholders of Miletos, Inc., this transaction has been recorded as a reorganization of Arkados, Inc. via a reverse merger with CDKNET.com, Inc. |
| | b. | In May 2004, prior to the consummation of the aforementioned reverse merger, the Company; (a) issued 200,000 common shares for services rendered by several individuals valued at $1.50 a share and were expensed prior to the consummation of the aforementioned reverse merger, (b) converted $150,834 of indebtedness owed to a law firm affiliated with the former CEO for 150,000 shares of common stock, (c) converted $165,000 of convertible debentures and related accrued of $51,539 for 549,866 shares of common stock. |
| | c. | Pursuant to the Merger Agreement, as amended, the consideration for the merger consisted of 16,340,577 shares of the Company’s restricted common stock (250,000 of such common shares are contingent shares and will be returned for cancellation unless called upon as a result of a breach of warranty), 39,401 shares of common stock to the former employees of Enikia, 100,000 shares were issued to the major shareholder to assume the satisfaction of certain outstanding 401K liabilities due to the employees of the predecessor entity, 2,484,644 stock options exercisable at $.01 per share, 1,149,998 stock options exercisable at $1.20 per share. In addition $950,200 was raised through the sale of 791,833 shares of common stock of the Company, 41,667 shares of common stock were issued to satisfy $50,000 of indebtedness, and 49,833 shares of common stock for $59,800 of services rendered related to the equity raise. The $59,800 of services rendered was recorded as a cost of raising such equity. |
| | d. | The 883,334 shares issued, pursuant to the terms of the Purchase Agreement relating to the aforementioned equity raise, have certain registration rights. In addition, such shareholders are entitled to liquidated damages, if a registration statement, registering such shares, is not filed within 90 days of June 1, 2004 or if the registration statement is not declared effective until 120 days after June 1, 2004, or 180 days if such registration statement is subject to review by the Securities and Exchange Commission. Such liquidated damages are calculated monthly based on the delayed days of such registration not being effective. Such calculation is 2% per month of the purchase price paid by such shareholders for the 883,333 shares purchased limited to an aggregate of 18% of the aggregate purchase price paid for the 883,333 shares purchased. The Company accrued $190,800 in penalties for the failure to register such shares issued. |
| | e. | The major shareholder of the Company allocated 2,345,410 shares of his shares in the Company to satisfy assumed obligations of Enikia for services previously rendered to the predecessor entities. Pursuant to Topic 5T of the Staff Accounting Bulletins, such contribution of the common shares of the Company have been recorded as a contribution by the shareholder to the Company in satisfaction of such liabilities recorded of $1,288,185. The major shareholder continues to negotiate for the allocation of additional shares to satisfy a separate assumed liability for services previously rendered to Enikia for capital transaction services. The recorded estimated value of such services yet to be negotiated is $700,000. |
2005 transactions
| | f. | During fiscal 2005, the Company issued 575,000 shares of common stock net of another 1,050,000, which was returned for non performance. These shares were valued at the fair market value of such stock upon issuance at prices ranging from $.50 to $2.15 per share. The aggregate compensation expense recorded in this fiscal year for these shares issued was $724,811 |
| | g. | During fiscal 2005, the Company issued 610,000 options at an exercise price of $1.20 per share which was above fair market value to its employees and directors and 1,725,000 options to third parties for services rendered at exercise prices ranging from $.01 to $1.20 per share. No compensation has been recorded for the options issued to employees and directors. The options to third parties have been valued at $900,461, which $582,292 has yet to be expensed due to the term of such services being performed. |
| | h. | The Company recorded $234,143 of interest expense related to the valuation of the detachable warrants and the beneficial conversion feature of $750,000 in debt raised from March to May 2005. This debt matured on June 8, 2005, hence predominately all of such interest expense was recorded in fiscal 2005. |
| | i. | In August 2004, a vendor converted $75,496 of payables for 125,000 shares of common stock. |
2006 transactions
| | j. | During the year ended May 31, 2006, the Company issued 750,000 stock options with an exercise price of $.45 per share to management and its employees, which vest over four years. Another 100,000 fully vested stock options with an exercise price of $.45 were issued to a consultant, an expense of $52,420 was recorded for these stock options. |
| | | |
| | k. | On March 20, 3006, the Company issued warrants to purchase up to 180,000 shares of our common stock for $0.85 per share to Emerging Capital Markets LLC as part compensation for investor relations consulting services for a three month period. The warrants vest in equal thirds on the first day of April, May and June 2006, provided there is no material breach of the related consulting agreement. Such investor relations consulting services agreement also provides for cash compensation in the amount of $20,000 per month for three months. This investor relations consulting agreement also provides for the requirement to obtain approval form this individual for any potential reverse stock splits greater than 1 for 5 and has the option to renew such agreement for another three months on the same terms |
2007 transactions
| l. | In June 2006, the Company approved the issuance of 475,000 shares of Arkados stock, or $342,000, to Mr. Andreas Typaldos in recognition of his effort s to obtain financing for Arkados. |
| m. | During the first quarter of 2007, the Company issued to management and its employees: 1,785,000 stock options with exercise prices ranging from $.43 to $.85; all of which vest over four years. |
| n. | During the third quarter of 2007, the Company issued 100,000 shares with an exercise price of $.40 per share to the incoming CFO as a component of her employment contract. Another 240,000 stock options with an exercise price of $.50, vesting over 6 months, were issued to a consultant; an expense of $80,917 was recorded for these stock options. |
| o. | On March 3, 2007, Arkados Wireless Technologies, Inc., our wholly owned subsidiary, filed a merger certificate completing the acquisition of Aster Wireless, Inc., a previously unaffiliated Delaware corporation. The consideration for the Merger was 1,000,000 restricted shares of our common stock. In addition, the Company issued an aggregate of 259,000 seven-year options to four employees through the acquisition exercisable at $0.405 per share which vest over 4 years aggregate of 78,564 shares of restricted stock to such employees. We also issued 300,000 seven-year options to a consultant which vested on March 1, 2008 and are exercisable at $0.405 per share; an expense of $100,146 was recognized. |
| p. | During the fourth quarter of 2007, the Company issued 3,010,000 stock options with exercise prices ranging from $.33 to $.40 per share to management and its employees, which vest over four years. Another 50,000 fully vested stock options with an exercise price of $.50 were issued to a consultant; an expense of $16,858 was recorded for these stock options. |
| q. | The Company issued 175,604 shares of its common stock with gross proceeds of $1,756 from the exercise of options by employees. |
| r. | For the year ended May 31, 2007, the Company incurred a non-cash charge of $418,997 for the amortization of stock options. |
2008 transactions
| s. | During the first quarter of 2008, the Company issued 30,000 shares to a vendor at a cost of $13,500 for the settlement of an outstanding balance. During the fourth quarter of 2008, the Company issued 166,667 shares to a consultant at a cost of $50,000. |
| t. | During the first quarter of 2008, the Company issued 190,000 options to three service providers; an expense in the amount of $50,274 was recognized for these options. During the fourth quarter, the Company extended the expiration period of 263,333 options for an employee whose contract was not renewed; an expense in the amount of $30,244 was recognized for this extension. In addition, in the same period, the Company issued 150,000 fully vested options with an exercise price of $.32 to a consultant; an expense in the amount of $24,930 was recognized for these options. |
| u. | During the third quarter of 2008, the Company issued 2,494,000 stock options with exercise prices of $.30 per share to management and its employees, which vest over four years. |
| v. | During the fourth quarter of 2008, the Company extended the expiration for two years of 2,227,864 $.01 options due to expire on May 24, 2008 issued to employees at the time of the reorganization. The value determined by Black Scholes of $714,076 will be amortized over the next two years for this extension. |
| w. | For the year ended May 31, 2008, the Company incurred a non-cash charge of $697,688 for the amortization of stock options. |
| 11. | STOCK-BASED COMPENSATION |
The Company accounted for its stock option plans under APB No. 25, “Accounting for Sock Issued to Employees,” (“APB 25”), under which no compensation cost is recognized through May 31, 2005 and provided pro-forma disclosure only as provided for under SFAS No. 123 and 148.
Effective June 1, 2005, the Company adopted SFAS no. 123R “Accounting for Stock-Based Compensation” (“SFAS 123”).
Compensation based stock option and warrant activity for warrants and qualified and unqualified stock options are summarized as follows:
| | | Shares | | | Weighted Average Exercise Price | |
| Outstanding at May 31, 2004 | | | 3,894,142 | | | $ | 0.79 | |
| Granted | | | 2,330,000 | | | | 1.39 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | (131,500 | ) | | | 57.19 | |
| Outstanding at May 31, 2005 | | | 6,092,642 | | | $ | 0.75 | |
| Granted | | | 1,125,000 | | | | 0.52 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | (330,990 | ) | | | 2.40 | |
| Outstanding at May 31, 2006 | | | 6,886,652 | | | $ | 0.64 | |
| Granted | | | 5,824,000 | | | | 0.49 | |
| Exercised | | | (175,604 | ) | | | 0.01 | |
| Expired or cancelled | | | — | | | | — | |
| Outstanding at May 31, 2007 | | | 12,535,048 | | | $ | 0.58 | |
| Granted | | | 5,365,197 | | | | 0.21 | |
| Exercised | | | — | | | | | |
| Expired or cancelled | | | (2,927,864 | ) | | | 0.22 | |
| Outstanding at May 31, 2008 | | | 14,972,381 | | | $ | 0.51 | |
Information, at date of issuance, regarding stock option grants during the year ended May 31, 2008.
| Year ended May 31, 2008 | | Shares | | | Weighted- Average Exercise Price | | | Weighted- Average Fair Value | |
| Exercise price exceeds market price | | | 253,000 | | | $ | 0.84 | | | $ | 0.11 | |
| Exercise price equals market price | | | 2,884,000 | | | $ | 0.49 | | | | 0.23 | |
| Exercise price is less than market price | | | 2,227,864 | | | $ | 0.01 | | | $ | 0.32 | |
The following table summarizes information about warrants and options outstanding and exercisable at May 31, 2008:
| | | Outstanding and exercisable | |
| | | Number Outstanding | | Weighted- Average Remaining Life In Years | | Weighted- Average Exercise Price | | Number Exercisable | |
| Range of exercise prices: | | | | | | | | | |
| $.01 to $0.50 | | | 10,337,264 | | | 4.55 | | $ | 0.21 | | | 5,394,764 | |
| $0.51 - $1.00 | | | 2,453,333 | | | 2.52 | | $ | 0.67 | | | 1,470,000 | |
| $1.01 - $2.00 | | | 2,181,784 | | | 3.05 | | $ | 1.20 | | | 2,181,784 | |
| | | | | | | | | | | | | | |
| | | | 14,972,381 | | | | | | | | | 9,046,548 | |
The compensation expense attributed to the issuance of the options and warrants will be recognized as they vest / earned. These stock options and warrants are exercisable for three to ten years from the grant date.
The employee stock option plan stock options are exercisable for ten years from the grant date and vest over various terms from the grant date to three years.
The issuance of warrants attributed to debt issuances are summarized as follows:
| | | Shares | | | Weighted Average Exercise Price | |
| Outstanding at May 31, 2004 | | | — | | | $ | — | |
| Granted | | | 825,000 | | | | .67 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | — | | | | — | |
| Outstanding at May 31, 2005 | | | 825,000 | | | $ | .67 | |
| Granted | | | 3,567,874 | | | | .88 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | — | | | | — | |
| Outstanding at May 31, 2006 | | | 4,392,874 | | | $ | .84 | |
| Granted | | | 4,655,366 | | | | .93 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | — | | | | — | |
| Outstanding at May 31, 2007 | | | 9,048,240 | | | | .88 | |
| Granted | | | 1,821,676 | | | | .85 | |
| Exercised | | | — | | | | — | |
| Expired or cancelled | | | (825,000 | ) | | | .67 | |
| Outstanding at May 31, 2008 | | | 10,044,916 | | | | .84 | |
Information, at date of issuance, regarding warrant grants during the year ended May 31, 2008.
| Year ended May 31, 2008 | | Shares | | | Weighted- Average Exercise Price | | | Weighted- Average Fair Value | |
| Exercise price exceeds market price | | | 1,821,676 | | | $ | .85 | | | $ | .14 | |
| Exercise price equals market price | | | — | | | | — | | | | — | |
| Exercise price is less than market price | | | — | | | | — | | | | — | |
The following table summarizes information about warrants and exercisable at May 31, 2008:
| | | Outstanding and exercisable | |
| | | Number Outstanding | | Weighted- average remaining life in years | | Weighted- Average Exercise Price | | Number Exercisable | |
| Range of exercise prices: | | | | | | | | | | | | | |
| $.01 to $.35 | | | 152,359 | | | 2.1 | | $ | .35 | | | 152,359 | |
| $.36 - $.99 | | | 9,892,563 | | | 4.6 | | $ | .85 | | | 9,892,563 | |
| $1.00 | | | — | | | — | | $ | | | | — | |
| | | | 10,044,916 | | | | | | | | | 10,044,916 | |
Interest expense attributed to the aforementioned warrants is being amortized over the ratable term of each respective debt arrangement. See loans payable above.
| 12. | COMMITMENTS AND CONTINGENCY |
| | a. | The Company leases office space in Piscataway, New Jersey pursuant to a lease that began on May 8, 2006 and which expires on June 30, 2009. The annual base rent is approximately $101,000. The Company leases office space in New York pursuant to a lease that began on March 1, 2007 and which expires on February 23, 2009. The annual base rent is approximately $10,400. There are no other material rental or lease commitment arrangements as of May 31, 2008. |
| | | |
| | | Total rental expenses for the years ended May 31, 2008, 2007 and 2006 was approximately $132,819, $108,242, and $40,000, respectively. |
| | b. | The Company and its’ subsidiary, Arkados, have entered into employment agreements with all of the employees of Arkados, including the CEO, CFO and VP of Worldwide Operations of the Company. The general terms of the combined employment agreements are; (a) each employment agreement provides for a base salary up to $300,000 depending on the employment position of such employee, (b) each employee will receive standard employment benefits comparable to those previously provided. |
| | c. | The Company may be subject to future lawsuits relating to unresolved claims against Enikia LLC as a result of the contribution of debt owed to a control group of Enikia being contributed to Miletos, Inc. and Miletos purchasing the assets of Enikia at a public foreclosure sale in partial satisfaction of the $11,116,803 obligation of Enikia to such control group. Some of these claims have alleged fraud, several claims have been settled and others continue to be unresolved. The Company maintains that such claims are without basis because of the statutory provision of New Jersey law governing creditors rights following a public foreclosure sale and in that it had no privatcy of contract with the claimants. |
On, July 9, 2008, the Company reached an agreement and waiver with the holders of the Trident Notes to the conversion of $306,618 of principal and interest (representing 25% of such principal and interest due as of June 30, 2008) in exchange for the issuance of approximately 876,100 shares of the Company’s Common Stock to the holders of the Company’s outstanding 6% Convertible Subordinated Notes due June 30, 2008, and the simultaneous amendment of the Trident Notes to extend the due date one year, from June 30, 2008 to June 30, 2009.
On August 7, 2008, Arkados Group, Inc. and the holders of the requisite principal amount of outstanding 6% Secured Convertible Debentures due December 28, 2008 executed an agreement to amend the debentures and make certain waivers, concurrently with the closing of $750,000 of the private placement as follows:
| 1. | In exchange for debentures aggregating 25% of the principal outstanding or $2,845,815.25, the Company will issue identical debentures, except the conversion price will be $0.25 rather than 0.85. |
| 2. | In exchange for 25% of the outstanding warrants held by debenture holders, the Company will issue 2,332,131 warrants identical to the warrants surrendered, except that the warrant exercise price is reduced from $0.85 to $0.25 and the warrants are only exercisable for cash until December 1, 2008. |
| 3. | The due date of the debentures is extended six months to June 28, 2009, and will be extended another six months to December 28, 2009 if the Company raised equity financing, in the aggregated of more than $2,000,000 by the maturity date of the debentures, as amended. |
| 4. | Interest due on the debentures will be added to principal until maturity. |
| 5. | The holders of the Debentures and Warrants waive the right of first refusal and any anti-dilution adjustments with respect to Company financing of up to $3,000,000 at no less than $0.25 per share and 50% warrant coverage completed on or before October 31, 2008. |
From June 1, 2008 to August 31, 2008, we completed an additional $50,000 of financing which was converted into equity in August 2008.
On August 7, 2008, we issued 1,690,080 units each consisting of two shares of our common stock and one warrant to 18 accredited investors for aggregate consideration of $845,038.47. Of this consideration, $762,593.66 was cash or cash advances incurred after April 15, 2008 and the balance was in exchange for prior obligations for borrowed money and other accounts payable. The warrants are exercisable until June 30. 2013 and entitle the holder to acquire one additional share of our common stock for $0.25 per share. We issued the shares of common stock and warrants in reliance on Rule 506 of Regulation D, Section 4(2) and 4(11) of the Act for privately placed securities issued to accredited investors. No broker dealer was engaged for the offering and we did not pay any commissions in connection with the sale of these securities.
On August 22, 2008, Harris Cohen was appointed to the Board of Directors of Arkados Group, Inc.
| ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. |
| ITEM 9A. | CONTROLS AND PROCEDURES |
Not applicable.
| ITEM 9A(T) 9A(T). | CONTROLS AND PROCEDURES |
(a) Evaluation of Disclosure Controls and Procedures
Our senior management is responsible for establishing and maintaining a system of disclosure controls and procedures (as defined in Rule 13a-15 and 15d-15 under the Exchange Act) designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Act is accumulated and communicated to the issuer’s management, including its principal executive officer or officers and principal financial officers, to allow timely decisions regarding required disclosure.
In performing its audit of our Consolidated Financial Statements for Fiscal 2006, our independent auditors, Sherb & Co., LLP “Sherb”, notified our Board of Directors of a material weakness in internal controls under standards established by the American Institute of Certified Public Accountants. Reportable conditions and material weaknesses involve matters coming to the attention of our auditors relating to significant deficiencies in the design or operation of internal controls that, in their judgment, could adversely affect our ability to record, process, summarize, and report financial data consistent with the assertions of management in the consolidated financial statements.
A material weakness is a control deficiency or combination of control deficiencies that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. As of May 31, 2006, we did not maintain effective controls related to transactional accounting and financial reporting and reported these findings in our Form 10-KSB Annual Report for the year ended May 31, 2006. These deficiencies included a lack of timely and sufficient financial statement account reconciliation and analysis and lack of sufficient support resources within the accounting and finance department. Management believes that such control deficiencies represented a material weakness in internal control over financial reporting that resulted in a reasonable likelihood that a material misstatement in our financial statements will not be prevented or detected by our employees in the normal course of performing their assigned functions.
During the fiscal quarter ended February 28, 2007 we hired a full time financial executive who became Chief Financial Officer in April 2007 and undertook to remedy the deficiencies and prepare our accounting systems to comply with the management reporting and audit requirements with respect to internal controls in accordance with Section 404 of Sarbanes-Oxley applicable to us for the fiscal years ending May 31, 2008 and May 31, 2009, respectively. As noted below, our evaluation of our disclosure controls and procedures permitted management to conclude that such controls were effective as of May 31, 2008. Due to its small size and limited financial resources, the Company’s CFO, is the only employee involved in accounting and financial reporting. As a result, there is no segregation of duties within the accounting function, leaving all aspects of financial control and physical control of cash in the hands of the same employee. The CFO is currently working to put it in place compensating levels of controls to provide for greater segregation of duties. This assessment should not be considered a report on efficacy of such controls as would be required under Section 404 of SOX in connection with the audit of our financial statements for the year ending May 31, 2008.
We have carried out an evaluation under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Accounting Officer, of our disclosure controls and procedures as defined in Exchange Act Rule 13(a)-15(e). In designing and evaluating our disclosure controls and procedures, we recognize that any disclosure controls and procedures, no matter how well designed and operated, can only provide reasonable assurance of achieving the desired control objective. As of May 31, 2008, management concluded that our disclosure controls and procedures are effective.
(b) Management’s Report on Internal Control over Financial Reporting
This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our registered public accounting firm pursuant to temporary rules of the SEC that permit us to provide only management’s report in this annual report. Section 404 of the Sarbanes-Oxley Act requires annual management assessments of the effectiveness of our internal controls over financial reporting beginning with our financial statements for the year ending May 31, 2009 and a report by our independent auditors addressing these assessments beginning with the financial statements for the year ending May 31, 2010. We are in the process of documenting and testing our internal control procedures, and we may identify material weaknesses in our internal control over financial reporting and other deficiencies, including the lack of sufficient staff.
(c) Changes in Internal Controls Over Financial Reporting
As a result of the identification of a material weakness described above, we have implemented the following changes:
| · | We have hired a full time financial executive in January 2007, who was appointed Chief Financial Officer in April 2007 |
| · | Organized an Audit Committee consisting of our two outside directors |
| · | Began the implementation of formalized policies, procedures and process documentation |
Although we have implemented the measures described above and believe they are effective, we have not evaluated such controls against any standard, such as the framework provided by Committee of Sponsoring Organizations of the Treadway Commission (COSO) and expect that such documentation and testing will take significant time and effort. We expect to make additional changes to our controls as we continue to prepare to comply with the management reporting requirements of Section 404 of Sarbanes-Oxley. We recognize that “tone at the top” is a key element to an organization’s control environment and are focused and committed to providing the correct tone and structure within the company. We cannot assure you that we will not in the future identify further deficiencies in our controls. However, we plan to continue to review and make any necessary changes to the overall design of our control environment in order to enhance our corporate governance and reporting practices.
Other than those described above, there have been no significant changes in our internal control over financial reporting that occurred during the last fiscal quarter of the fiscal year ended May 31, 2008 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
| ITEM 9B. | OTHER INFORMATION |
On August 22, 2008, the appointment of Harris Cohen as a director of Arkados Group, Inc. became effective pursuant to a board resolution adopted at a meeting held on August 16, 2008.
Mr. Cohen is President of Cooper Barrons, Inc., a private investment firm and hedge fund manager, since 2002. In 2008, he served as interim General Manager, CFO and consultant to Netanya, Inc, owner of Return to Eden, an organic healthfood store in Atlanta, Georgia. From 1997 through 2001, he was Portfolio Manager for the Bear Stearns Small Cap Mutual Fund and Institutional Funds. His fund was acknowledged as one of the top five small cap funds over five years based on consistency of outperformance by USA Today. Before that, he was a Senior Equity Analyst at Furman Selz LLC from 1994-1996. Mr. Cohen received his MBA from NYU Stern School of Business in 1993. He graduated from Phillip Crosby’s Quality Management College. Prior to Graduate School, Mr. Cohen worked for Coca-Cola and Barron’s Department Stores. He received a BBA from the University of Georgia in 1984.
PART III
| ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
In accordance with Instruction G.3. of Form 10-K, we plan to incorporate the information required in response to this Item 9 by reference to our definitive information statement or proxy or file an amendment to this report to provide such information before 120 days after May 31, 2008.
In accordance with Instruction G.3. of Form 10-K, we plan to incorporate the information required in response to this Item 10 by reference to our definitive information statement or proxy or file an amendment to this report to provide such information before 120 days after May 31, 2008.
| ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
In accordance with Instruction G.3. of Form 10-K, we plan to incorporate the information required in response to this Item 10 by reference to our definitive information statement or proxy or file an amendment to this report to provide such information before 120 days after May 31, 2008.
| ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS |
In accordance with Instruction G.3. of Form 10-K, we plan to incorporate the information required in response to this Item 12 by reference to our definitive information statement or proxy or file an amendment to this report to provide such information before 120 days after May 31, 2008.
| ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Audit Fees
The aggregate fees billed and unbilled for the fiscal years ended May 31, 2007 and 2008 for professional services rendered by our principal accountants for the audits of our annual financial statements, and the review of our financial statements included in our quarterly reports on Form 10-QSB were approximately $68,105 and $31,600, respectively.
Audit-Related Fees
The aggregate fees billed for the fiscal years ended May 31, 2007 and 2008 for assurance and related services rendered by our principal accountants related to the performance of the audit or review of our financial statements, specifically accounting research, were $0 and $0, respectively.
Tax and Other Fees
There aggregate fees billed for the fiscal years ended May 31, 2007 and 2008 for tax related or other services rendered by our principal accountants in connection with the preparation of our federal and state tax returns was $9,000 and $14,700, respectively.
Approval of Non-audit Services and Fees
We created an Audit committee during fiscal year 2007, consisting solely of independent directors and, consistent with SEC policies and guidelines regarding audit independence, the Audit Committee will responsible for the pre-approval of all audit and permissible non-audit services provided by our principal accountants on a case-by-case basis.
PART IV
EXHIBIT INDEX
| | | | Incorporated by Reference | |
Exhibit Number | Exhibit Description | | Form | File Number | Exhibit | Filing Date | Filed Herewith |
| | | | | | | | |
| 2.1 | Agreement and Plan of Merger dated as of May 7, 2004 between CDKnet.com, Inc., CDK Merger Corp., Miletos, Inc. and Andreas Typaldos, as Representative of Certain Stockholders of Miletos, Inc. | | 10-K | 0-27587 | 2.1 | 9/17/04 | |
| | | | | | | | |
| 2.2 | Amendment dated May 21, 2004 to the Agreement and Plan of Merger dated as of May 7, 2004 between CDKnet.com, Inc., CDK merger Corp., Miletos, Inc. and Andreas Typaldos, as Representative of Certain Stockholders of Miletos, Inc. | | 10-K | 0-27587 | 2.2 | 9/17/04 | |
| | | | | | | | |
| 2.3 | Amendment Number 2, dated January 19, 2005, amending the Agreement and Plan of Merger, dated as of May 7, 2004, by and among CDKNet.Com, Inc., CDK Merger Corp., and Miletos, Inc., and Andreas Typaldos, in his individual capacity and as representative of the following stockholders of the Company: Renee Typaldos, Patra Holdings LLC, Andreas Typaldos Family Limited Partnership and Renee Typaldos Family Partnership, Ltd. | | 10-QSB | 0-27587 | 2.1 | 1/23/06 | |
| | | | | | | | |
| 2.4 | AGREEMENT AND PLAN OF MERGER dated as of February 13, 2007, among Arkados Group, Inc., a Delaware corporation, Arkados Wireless Technologies, Inc., a Delaware corporation and a newly formed wholly owned subsidiary Arkados Group, Inc. and Aster Wireless Inc., a Delaware corporation. | | 8-K | 0-27587 | 2.1 | 2/21/07 | |
| | | | | | | | |
| 3i.1 | Articles of Incorporation of the Registrant. | | 10-SB | 0-27587 | 3.1 | 10/7/99 | |
| | | | | | | | |
| 3i.2 | Amendment to the Articles of Incorporation. | | 10-SB | 0-27587 | 3.2 | 10/7/99 | |
| | | | | | | | |
| 3i.3 | Certificate of Merger of the Registrant. | | 10-SB | 0-27587 | 3.4 | 10/7/99 | |
| | | | | | | | |
| 3i.4 | Amendment to the Articles of Incorporation. | | 10-SB | 0-27587 | 3.5 | 10/7/99 | |
| | | | | | | | |
| 3i.5 | Amended and Restated Series A Designation | | 10-QSB | 0-27587 | 3.1 | 2/14/03 | |
| | | | | | | | |
| 3i.6 | Amendment to Certificate of Incorporation (Reverse Split) filed November 31, 2003. | | 10-QSB | 0-27587 | 3.1 | 2/17/04 | |
| | | | | | | | |
| 3i.7 | Certificate of Amendment to Certificate of Incorporation | | 10-QSB | 0-27587 | 3.2 | 2/17/04 | |
| | | | | | | | |
| 3i.8 | Certificate of Ownership and Merger dated August 30, 2006. | | 8-K | 0-27587 | 3.1 | 9/1/06 | |
| | | | | | | | |
| 3ii.1 | By-Laws of the Registrant. | | 10-SB | 0-27587 | 3.3 | 10/7/99 | |
| | | | | | | | |
| 4.1 | Specimen of Common Stock Certificate. | | 10-K | 0-27587 | 4.1 | 10/10/06 | |
| | | | | | | | |
| 4.2* | Form of Stock Option Grant Agreement under the CDKnet.com, Inc. 2004 Stock Option and Restricted Stock Plan. | | 10-K | 0-27587 | 4.7 | 9/17/04 | |
| | | | | | | | |
| 4.3 | Form of 6% Secured Convertible Debenture due December 28, 2008 | | 8-K/A | 0-27587 | 4.1 | 7/11/06 | |
| | | | | | | | |
| 4.4 | Form of Common Stock Purchase Warrant (long term and short term warrants differ as to price and expiration date as set forth in footnotes to the form filed) | | 8-K/A | 0-27587 | 4.2 | 7/11/06 | |
| | | | | | | | |
| 4.5 | Registration Rights Agreement, dated as of December 28, 2005, by and among the Registrant, Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K/A | 0-27587 | 4.3 | 7/11/06 | |
| | | | | | | | |
| 4.6 | Form of Request for Extension of 6% Convertible Subordinated Note due July 7, 2007 | | 8-K | 0-27587 | 4.2 | 7/17/07 | |
| | | | | | | | |
| 4.7 | Form of three year warrant exercisable at $0.85 | | 8-K | 0-27587 | 4.3 | 7/17/07 | |
| | | | | | | | |
| 4.8 | Form of 6% Secured Convertible Debenture due December 28, 2008, as amended December 15, 2007 | | 8-K | 0-27587 | 4.1 | 12/12/07 | |
| | | | | | | | |
| 4.9 | Form of Common Stock Purchase Warrant, as amended December 15, 2007 | | 8-K | 0-27587 | 4.2 | 12/12/07 | |
| | | | | | | | |
| 4.10 | Form of 6% Secured Convertible Debenture due December 28, 2008, as amended April 2, 2008 | | 8-K | 0-27587 | 4.2 | 04/08/08 | |
| | | | | | | | |
| 4.11 | Form of Request for Extension | | 8-K | 0-27587 | 4.2 | 07/22/08 | |
| | | | | | | | |
| 4.12 | Form of Extension, Waiver and Conversion Agreement | | 8-K | 0-27587 | 4.3 | 07/22/08 | |
| | | | | | | | |
| 4.13 | Form of 6% Secured Convertible Debenture due June 28, 2009, as amended August 7, 2008 (convertible at $0.25). | | 8-K | 0-27587 | 4.1 | 08/11/08 | |
| | | | | | | | |
| 4.14 | Form of New Warrant exercisable at $0.25 per share. | | 8-K | 0-27587 | 4.2 | 08/11/08 | |
| | | | | | | | |
| 4.15 | Form of warrant exercisable at $0.25 per share until June 30, 2013 | | 8-K | 0-27587 | 4.3 | 08/11/08 | |
| | | | | | | | |
| 10.1* | Technology Horizons Corp. 1998 Equity Incentive Plan. | | 10-SB | 0-27587 | 10.1 | 10/7/99 | |
| | | | | | | | |
| 10.2 | Registration Rights Agreements dated as of May 21, 2004 between CDKnet.Com, Inc. and several stockholders. | | 10-K | 0-27587 | 10.17.1 10.17.2 | 9/17/04 | |
| | | | | | | | |
| 10.3* | Consulting Agreement dated as of May 21, 2004 between CDKnet.Com, Inc. and Andreas Typaldos. | | 10-K | 0-27587 | 10.18 | 9/17/04 | |
| | | | | | | | |
| 10.4* | Employment Agreement dated as of May 23, 2004 between CDKnet.Com, Inc. and Oleg Logvinov. | | 10-K | 0-27587 | 10.19 | 9/17/04 | |
| | | | | | | | |
| 10.5 | Silicon Product Development Production Collaboration Agreement dated July 28, 2004 between GDA Technologies, Inc. and Arkados, Inc. | | 10-K | 0-27587 | 10.23 | 9/17/04 | |
| | | | | | | | |
| 10.6 | Form of 10% convertible extendible note due June 8, 2005 in the aggregate authorized principal amount of $750,000 | | 10-QSB | 0-27587 | 10.1 | 4/19/05 | |
| | | | | | | | |
| 10.7 | Form of three year warrant exercisable at $0.67 | | 10-QSB | 0-27587 | 10.2 | 4/19/05 | |
| | | | | | | | |
| 10.8 | Form of registration rights agreement relating to the 10% convertible extendible notes and three year warrants | | 10-QSB | 0-27587 | 10.3 | 4/19/05 | |
| | | | | | | | |
| 10.9* | Stock Option Grant Agreement dated June 21, 2005 | | 8-K | 0-27587 | 10.1 | 6/24/05 | |
| | | | | | | | |
| 10.10 | Form of Securities Purchase Agreement | | 8-K | 0-27587 | 10.1 | 7/14/05 | |
| | | | | | | | |
| 10.11 | Form of 6% Convertible Subordinated Note due July 7, 2007 in the aggregate authorized principal amount of $2.4 million | | 8-K | 0-27587 | 10.2 | 7/14/05 | |
| | | | | | | | |
| 10.12 | Form of three year warrant exercisable at $0.35 | | 8-K | 0-27587 | 10.3 | 7/14/05 | |
| | | | | | | | |
| 10.13 | Securities Purchase Agreement, dated as of December 28, 2005, by and among the Registrant, Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K | 0-27587 | 99.1 | 1/4/06 | |
| | | | | | | | |
| 10.14 | Security Agreement, dated as of December 28, 2005, by and among the Registrant, Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K | 0-27587 | 99.2 | 1/4/06 | |
| | | | | | | | |
| 10.15 | Subsidiary Guarantee dated as of December 28, 2005 executed by Arkados, Inc. | | 8-K | 0-27587 | 99.3 | 1/4/06 | |
| | | | | | | | |
| 10.16 | Waiver dated as of January 17, 2006 to the Securities Purchase Agreement, dated as of December 28, 2005, by and among the Registrant, Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 10-QSB | 0-27587 | 10.1 | 1/23/06 | |
| | | | | | | | |
| 10.17 | Additional Issuance Agreement dated February 1, 2006 between the Registrant and Bushido Capital Master Fund, L.P. | | 8-K | 0-27587 | 99.4 | 2/6/06 | |
| | | | | | | | |
| 10.18 | Amended and Restated Extension Waiver and Debt Conversion Agreement dated as of February 1, 2006 by and among the Registrant and each of the holders of the Registrant’s outstanding 10% Convertible Extendable Notes originally due June 8, 2005, 6% Convertible Notes original due October 15, 2005 and that Grid Note dated October 15, 2004 | | 8-K | 0-27587 | 99.5 | 2/6/06 | |
| | | | | | | | |
| 10.19 | Debt Conversion Agreement (Note) dated as of January 11, 2006 between the Registrant and William Carson | | 8-K | 0-27587 | 99.6 | 2/6/06 | |
| | | | | | | | |
| 10.20 | Debt Conversion Agreement (Advances) dated as of January 11, 2006 between the Registrant and William Carson | | 8-K | 0-27587 | 99.7 | 2/6/06 | |
| | | | | | | | |
| 10.21 | Debt Conversion Agreement (Advances) dated as of January 11, 2006 between the Registrant and Gennaro Vendome | | 8-K | 0-27587 | 99.8 | 2/6/06 | |
| | | | | | | | |
| 10.22 | Second Additional Issuance Agreement dated February 24, 2006 between the Registrant and Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K | 0-27587 | 99.5 | 3/2/06 | |
| | | | | | | | |
| 10.23 | Third Additional Issuance Agreement dated March 31, 2006 between the Registrant and Cargo Holdings LLC | | 8-K | 0-27587 | 99.6 | 4/6/06 | |
| | | | | | | | |
| 10.24 | Letter Agreement dated march 31, 2006 between the Registrant and Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K | 0-27587 | 99.7 | 4/6/06 | |
| | | | | | | | |
| 10.25 | Warrant agreement dated March 20, 2006 issued to Emerging Capital Markets LLC | | 8-K | 0-27587 | 99.8 | 4/6/06 | |
| | | | | | | | |
| 10.26 | Lease Agreement effective May 8, 2006 between Arkados, Inc. and Bridgeview Plaza Associates. | | 8-K | 0-27587 | 99.1 | 5/9/06 | |
| | | | | | | | |
| 10.27 | Securities Purchase Agreement, dated as of December 28, 2005, by and among the Registrant, Bushido Capital Master Fund, L.P., Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K/A | 0-27587 | 99.1 | 7/11/06 | |
| | | | | | | | |
| 10.28 | Security Agreement, dated as of December 28, 2005, by and among the Registrant, Gamma Opportunity Capital Partners, L.P. Class A, and Gamma Opportunity Capital Partners, L.P. Class C | | 8-K/A | 0-27587 | 99.2 | 7/11/06 | |
| | | | | | | | |
| 10.29 | Subsidiary Guarantee dated as of December 28, 2005 executed by Arkados, Inc. | | 8-K/A | 0-27587 | 99.3 | 7/11/06 | |
| | | | | | | | |
| 10.30* | Letter Amendment dated June 30, 2006 to the Consulting Agreement with Andreas Typaldos dated May 21, 2004 | | 8-K/A | 0-27587 | 99.4 | 7/11/06 | |
| | | | | | | | |
| 10.31 | Amendment Agreement dated August 18, 2006 between CDKnet.com, Inc., Bushido Capital Master Fund, LP, Gamma Opportunity Capital Partners, LP (Classes A and C), and Cargo Holdings LLC | | 8-K | 0-27587 | 99.1 | 8/24/06 | |
| | | | | | | | |
| 10.32 | Additional Issuance Agreement dated September 26, 2006 between Arkados Group, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC - Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.5 | 10/2/06 | |
| | | | | | | | |
| 10.33 | Waiver and Amendment Agreement dated September 26, 2006 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.6 | 10/2/06 | |
| | | | | | | | |
| 10.34 | Waiver and Amendment Agreement dated October 24, 2006 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.6 | 10/30/06 | |
| | | | | | | | |
| 10.35 | Third Additional Issuance Agreement dated November 30, 2006 between Arkados Group, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.6 | 12/5/06 | |
| | | | | | | | |
| 10.36 | Waiver and Amendment Agreement dated November 30, 2006 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.7 | 12/5/06 | |
| | | | | | | | |
| 10.37 | Fourth Additional Issuance Agreement dated January 8, 2007 between Arkados Group, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.8 | 5/11/07 | |
| | | | | | | | |
| 10.38 | Fifth Additional Issuance Agreement dated February 28, 2007 between Arkados Group, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.9 | 5/11/07 | |
| | | | | | | | |
| 10.39 | Sixth Additional Issuance Agreement dated March 6, 2007 between Arkados Group, Inc., Crucian Transition, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.10 | 5/11/07 | |
| | | | | | | | |
| 10.40 | Waiver and Amendment Agreement dated January 8, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.11 | 5/11/07 | |
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| 10.41 | Waiver and Amendment Agreement dated February 28, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.12 | 5/11/07 | |
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| 10.42 | Waiver and Amendment Agreement dated March 6, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.13 | 5/11/07 | |
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| 10.43 | Seventh Additional Issuance Agreement dated March 6, 2007 between Arkados Group, Inc., Crucian Transition, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos and Andreas Typaldos Family Limited Partnership | | 8-K | 0-27587 | 99.14 | 5/11/07 | |
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| 10.44 | Waiver and Amendment Agreement dated May 7, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.15 | 5/11/07 | |
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| 10.45 | Eighth Additional Issuance Agreement dated May 30, 2007 between Arkados Group, Inc., Crucian Transition, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos, Andreas Typaldos Family Limited Partnership, Kathryn Typaldos, Herbert H. Sommer and Joel C. Schneider | | 8-K | 0-27587 | 99.16 | 6/05/07 | |
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| 10.46 | Ninth Additional Issuance Agreement dated May 31, 2007 between Arkados Group, Inc., Crucian Transition, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos, Andreas Typaldos Family Limited Partnership, Kathryn Typaldos, Herbert H. Sommer and Joel C. Schneider | | 8-K | 0-27587 | 99.17 | 6/05/07 | |
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| 10.47 | Waiver and Amendment Agreement dated May 30, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.18 | 6/05/07 | |
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| 10.48 | Waiver and Amendment Agreement dated May 31, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.19 | 6/05/07 | |
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| 10.49* | Limited waiver letter dated October 10, 2006 relating to the Employment Agreement dated as of May 23, 2006 between Arkados Group, Inc. (formerly CDKnet.com, Inc.) and Oleg Logvinov | | 10-K | 0-27587 | 10.34 | 10/10/06 | |
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| 10.50* | Limited waiver letter dated November 9, 2006 relating to the employment agreement dated as of May 23, 2004 between Arkados Group, Inc. (formerly CDKnet.com, Inc.) and Oleg Logvinov. | | 10-QSB | 0-27587 | 10.1 | 1/12/07 | |
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| 10.51* | Employment Agreement dated as of December 27, 2007 between Arkados Group, Inc. and Barbara Kane-Burke. | | 8-K | 02-27587 | 99.1 | 4/25/07 | |
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| 10.52 | Solicitation Agreement between Arkados Group, Inc. and Trident Partners, Ltd | | 8-K | 0-27587 | 99.1 | 7/17/07 | |
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| 10.53 | Letter Amendment dated September 10, 2007 to the Consulting Agreement with Andreas Typaldos dated May 21, 2004 | | 10-KSB | 0-27587 | 10.53 | 9/13/07 | |
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| 10.54 | Amendment Agreement dated December 6, 2007 between Arkados Group, Inc., Bushido Capital Master Fund, LP, Gamma Opportunity Capital Partners, LP (Classes A and C), Cargo Holdings LLC, Crucian Transition, Inc., Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos Family Limited Partnership, Kathryn Typaldos, Herbert H. Sommer and Joel C. Schneider. | | 8-K | 0-27587 | 99.1 | 12/12/07 | |
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| 10.55 | Tenth Additional Issuance Agreement dated December 15, 2007 between Arkados Group, Inc., Crucian Transition, Inc., Bushido Capital Master Fund, LP, Pierce Diversified Strategy Master Fund, LLC – Series BUS, Andreas Typaldos, Andreas Typaldos Family Limited Partnership, Kathryn Typaldos, Herbert H. Sommer, Joel C. Schneider, Gennaro Vendome and William H. Carson | | 8-K | 0-27587 | 99.20 | 12/22/07 | |
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| 10.56 | Waiver and Amendment Agreement dated December 15, 2007 between Arkados Group, Inc. and Bushido Capital Master Fund, L.P., Gamma Opportunities Capital Partners, LP Class A, Gamma Opportunities Capital Partners, LP Class C and Cargo Holdings LLC | | 8-K | 0-27587 | 99.21 | 12/22/07 | |
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| 10.57 | Waiver and Amendment Agreement dated April 2, 2008 between Arkados Group, Inc., and certain holders of Arkados Group, Inc. 6% secured convertible debentures due December 28, 2008. | | 8-K | 0-27587 | 99.1 | 04/08/08 | |
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| 10.58 | Solicitation Agreement between Arkados Group, Inc. and Trident Partners, Ltd | | 8-K | 0-27587 | 99.1 | 07/22/08 | |
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| 10.59 | Waiver and Amendment Agreement dated April 2, 2008 between Arkados Group, Inc., and certain holders of Arkados Group, Inc. 6% secured convertible debentures due December 28, 2008. | | 8-K | 0-27587 | 99.1 | 08/11/08 | |
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| 14.1 | Code of Business Conduct and Ethics | | 10-K | 0-27587 | 14.1 | 9/17/04 | |
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| 14.2 | Code of Ethics for Financial Executives | | 10-K | 0-27587 | 14.2 | 9/17/04 | |
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| 21 | Subsidiaries of the Registrant. | | | | | | X |
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| 31.1 | Certification of Chief Executive Officer of Periodic Report pursuant to Rule 13a-14a and Rule 15d-14(a). | | | | | | X |
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| 31.2 | Certification of Chief Financial Officer of Periodic Report pursuant to Rule 13a-14a and Rule 15d-14(a). | | | | | | X |
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| 32.1 | Certification of Chief Executive Officer of pursuant to 18 U.S.C. - Section 1350. | | | | | | X |
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| 32.2 | Certification of Chief Financial Officer of pursuant to 18 U.S.C. - Section 1350. | | | | | | X |
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*Compensation plans or arrangements in which directors or executive officers are eligible to participate.
In accordance with Section 13 or 15(d) of the Exchange Act, the Registrant caused this report on to be signed on its behalf by the undersigned, thereunto duly authorized.
| | | |
| | Arkados Group, Inc. (Registrant) |
| | |
| | By: | /s/ Oleg Logvinov |
| | President and Chief Executive Officer |
| | |
| | | |
| | By: | /s/ Barbara Kane-Burke |
| | Chief Financial Officer (Principal Financial and Accounting Officer) |
| Date: September 12, 2008 | |
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| Date: September 12, 2008 | By: /s/ Oleg Logvinov |
| | Oleg Logvinov, President, Chief Executive Officer and a Director |
| Date: | By: |
| | Gennaro Vendome, Director |
| Date: | By: |
| | William H. Carson, Director |
| Date: September 12, 2008 | By: /s/ Andreas Typaldos |
| | Andreas Typaldos, Chairman |
| Date: September 12, 2008 | By: /s/ Harris Cohen |
| | Harris Cohen, Director |
