5. Investment in Affiliated Company | Phoenix Digital Solutions, LLC On June 7, 2005, we entered into a Master Agreement (the Master Agreement) with TPL, and Charles H. Moore (Moore), the co-inventor of the technology which is the subject of the MMP portfolio of microprocessor patents, pursuant to which the parties resolved all legal disputes between them. Pursuant to the Master Agreement, we and TPL entered into the Limited Liability Company Operating Agreement of PDS (the LLC Agreement) into which we and Moore contributed our rights to certain of our technologies. We and TPL each own 50% of the membership interests of PDS, and each member has the right to appoint one member of the three member management committee. The two appointees are required to select a mutually acceptable third member of the management committee. There had not been a third management committee member since May 2010, however, as a result of our initiation of arbitration seeking the appointment of a third member, on December 16, 2014, an independent manager to the PDS management committee was selected by the arbitrator (see Note 9). Pursuant to the LLC Agreement, we and TPL initially agreed to establish a working capital fund for PDS of $4,000,000, of which our contribution was $2,000,000. The working capital fund was increased to a maximum of $8,000,000 as license revenues are achieved. We and TPL are obligated to fund future working capital requirements at the discretion of the management committee of PDS in order to maintain working capital of not more than $8,000,000. If the management committee determines that additional capital is required, neither we nor TPL are required to contribute more than $2,000,000 in any fiscal year. No such contributions were made during the fiscal years ended May 31, 2015 and 2014. Distributable cash and allocation of profits and losses have been allocated to the members in the priority defined in the LLC Agreement. PDS previously reimbursed TPL for payment of all legal and third-party expert fees and other related third-party costs and expenses, although the majority of third-party costs are now paid directly by PDS. During the fiscal years ended May 31, 2015 and 2014, PDS expensed $1,247,969 and $2,300,323, respectively, pursuant to the agreement. These expenses are recorded in the accompanying PDS statements of operations presented below net of $20,546 and $400,708, for fiscal 2015 and 2014, respectively, of legal fee reversals previously expensed and recorded as accounts payable to TPL as the statute of limitations had expired. On July 11, 2012, we entered into the Program Agreement with PDS, TPL, and Alliacense, and an Agreement (the TPL Agreement) with TPL. Pursuant to the Program Agreement, PDS engaged Alliacense to negotiate MMP portfolio licenses and to pursue claims against violators of the MMP portfolio on behalf of PDS, TPL, and the Company. The Program Agreement continued through the useful life of the MMP portfolio patents. Pursuant to the TPL Agreement, we and TPL agreed to certain allocations of obligations in connection with the engagement of Alliacense. On July 24, 2014, the Program Agreement was amended with PDS and Alliacense entering into the Amended Alliacense Services and Novation Agreement (the Novation Agreement). Pursuant to the Novation Agreement certain performance goals and incentives were established for Alliacense. The Novation Agreement also provided for the addition of a second licensing company, which was engaged on October 10, 2014, to complement the MMP licensing commercialization. However, Alliacense fulfilled only a portion of its obligations under the Novation Agreement associated with the deployment of the second licensing company and on May 11, 2015, Alliacense was terminated by PDS. On July 17, 2012, we entered into an Agreement with PDS, TPL, and Alliacense whereby we agreed to certain additional allocations of obligations relating to the Program Agreement. Pursuant to the Program Agreement, PDS had committed to Alliacense a quarterly amount of $500,000 which represented the licensing services fees due Alliacense, subject to a contingency arrangement which provided for a percentage on future revenues, for its efforts to secure licensing agreements on behalf of PDS. During fiscal 2014, PDS discontinued these payments which were formally eliminated by terms of the Novation Agreement. These payments had replaced the quarterly amounts previously paid to TPL pursuant to the Commercialization Agreement. During the fiscal year ended May 31, 2014 PDS expensed $956,353 pursuant to this contractual obligation. These expenses are recorded in the accompanying PDS statement of operations for the fiscal year ended May 31, 2014 presented below. Pursuant to the Program Agreement, PDS was contractually obligated to pay Alliacense litigation support fees relating to Alliacenses special work and effort regarding internal costs related to MMP maintenance and litigation support including support in the U.S. District Court and the complaints filed on behalf of TPL, PDS and us with the ITC. During the fiscal years ended May 31, 2015 and 2014, PDS reversed $(24,598) and expensed $184,435, respectively, pursuant to this contractual obligation. Future litigation support payments to Alliacense relating to the ITC litigation had been subject to a contingency arrangement which provided for a percentage of future recoveries in these actions. The Novation Agreement eliminated the Program Agreements litigation support activity by Alliacense. These reversals and expenses are recorded in the accompanying PDS statements of operations for the fiscal years ended May 31, 2015 and 2014 presented below. Pursuant to the Novation Agreement, the PDS paid Alliacense licensing fees of $155,600 during the fiscal year ended May 31, 2015. During the fiscal years ended May 31, 2015 and 2014, PDS paid Alliacense $323,000 and $300,000, respectively, against multiple outstanding disputed items in connection with a settlement of these items (see Note 9). During January 2013, TPL and Moore settled their litigation. Terms of the settlement include the payment by PDS to Moore of a consulting fee of $250,000 for four years or until the completion of all outstanding MMP litigation whichever comes first. Per terms of the agreement PDS paid Moore $150,000 on the settlement date and will pay Moore $16,667 per month from August 2013 through January 2014 and $20,833 per month beginning February 2014 through January 2017. During the fiscal years ended May 31, 2015 and 2014, PDS paid Moore $249,996 and $183,334, respectively, pursuant to this contractual obligation. These expenses are recorded in the accompanying PDS statements of operations for the fiscal years ended May 31, 2015 and 2014 presented below. During the fiscal year ended May 31, 2014, we expensed $92,050 of legal fees on behalf of PDS. We are accounting for our investment in PDS under the equity method of accounting, and accordingly have recorded our share of PDSs net loss during the fiscal year ended May 31, 2015 of $106,923 as a decrease in our investment. We have recorded our share of PDSs net income during the fiscal year ended May 31, 2014 of $104,677 as an increase in our investment. Cash distributions of $58,400 and $375,000 received from PDS during the years ended May 31, 2015 and 2014, respectively, have been recorded as a reduction in our investment. We have recorded our share of PDSs net income and loss as Equity in earnings (loss) of affiliated company in the accompanying consolidated statements of operations for the years ended May 31, 2015 and 2014, respectively. During the fiscal years ended May 31, 2015 and 2014, PDS entered into licensing agreements with third parties, pursuant to which PDS recognized revenues of $1,820,000 and $5,022,000, respectively. On March 20, 2013, TPL filed a petition under Chapter 11 of the United States Bankruptcy Code. A Joint Plan of Reorganization (the Joint Plan) between TPL and the creditors committee was confirmed by the Bankruptcy Court on February 11, 2015 with the entered confirmation order becoming final on April 2, 2015. The Joint Plan provides that the Effective Date, which remains pending, will be the later of (i) the first business day that is at least 30 days after the entry of the confirmation order or (ii) the first Business Day on which the reorganized company has sufficient cash to make all payments required under the Plan on the Effective Date. We have been appointed to the creditors committee and have been closely monitoring the progress in this matter as it relates to our interest in PDS. In the event we are required to provide funding to PDS that is not reciprocated by TPL, our ownership percentage in PDS will increase and we will have a controlling financial interest in PDS, in which case, we will consolidate PDS in our consolidated financial statements. If we determine that it is appropriate to consolidate PDS, we would measure the assets, liabilities and noncontrolling interests of PDS at their fair values at the date that we have the controlling financial interest. PDSs balance sheets at May 31, 2015 and 2014 and statements of operations for the years ended May 31, 2015 and 2014 are as follows: Balance Sheets Assets: 2015 2014 Cash $ 442,621 $ 1,063,536 Prepaid expenses 26,644 247,776 Total assets $ 469,265 $ 1,311,312 Liabilities and Members Equity (Deficit): 2015 2014 Related party payables and accrued expenses $ 607,949 $ 1,107,560 Income tax payable 11,790 Members equity (deficit) (138,684 ) 191,962 Total liabilities and members equity (deficit) $ 469,265 $ 1,311,312 Statements of Operations 2015 2014 Revenues $ 1,820,000 $ 5,022,000 Expenses 1,673,046 4,393,655 Operating income 146,954 628,345 Income before provision for income taxes and foreign taxes 146,954 628,345 Provision for income taxes and foreign taxes 360,800 418,990 Net income (loss) $ (213,846 ) $ 209,355 We review our investment in PDS to determine whether events or changes in circumstances indicate that the carrying amount may not be recoverable. The primary factors we consider in our determination are the financial condition, operating performance and near term prospects of PDS. If a decline in value is deemed to be other than temporary, we would recognize an impairment loss. |