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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 for the quarterly period ended October 31, 2004
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 1-8696
------
COMPETITIVE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-2664428
- ------------------------------------ --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1960 Bronson Road
Fairfield, Connecticut 06824
- --------------------------- -------------------------------------
(Address of principal executive (Zip Code)
offices)
(203) 255-6044
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
N/A
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if
changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [x] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in rule 12b-2 of the Exchange Act). Yes[ ] No[x]
The number of shares of the registrant's common stock outstanding as of December
1, 2004 was 6,591,200 shares.
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
-----------------------------------------------
INDEX TO QUARTERLY REPORT ON FORM 10-Q
--------------------------------------
PART I. FINANCIAL INFORMATION Page No.
- ----------------------------- --------
Item 1. Condensed Consolidated Financial Statements (Unaudited)
Consolidated Balance Sheets at October 31, 2004 and July 31,
2004.................................................................3
Consolidated Statements of Operations for the
three months ended October 31, 2004 and 2003.........................4
Consolidated Statement of Changes in Shareholders' Interest
for the three months ended October 31, 2004..........................5
Consolidated Statements of Cash Flows for the
three months ended October 31, 2004 and 2003.........................6
Notes to Consolidated Financial Statements.......................7 - 13
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations......................................13 - 19
Item 3. Quantitative and Qualitative Disclosures About Market Risk...........19
Item 4. Controls and Procedures..............................................20
PART II. OTHER INFORMATION
- --------------------------
Item 1. Legal Proceedings....................................................20
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds..........20
Item 6. Exhibits.............................................................21
Signatures...................................................................22
Page 2
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
October 31, July 31,
2004 2004
(Unaudited) *
-------------- --------------
ASSETS
Current assets:
Cash and cash equivalents $ 6,662,696 $ 4,309,680
Receivables 1,029,275 829,996
Prepaid expenses and other current assets 866,539 209,154
-------------- --------------
Total current assets 8,558,510 5,348,830
Deferred equity financing costs, net 697,851 866,302
Non-current receivable, net 258,293 394,133
Intangible assets acquired, net 48,755 52,150
Property and equipment, net 35,143 19,392
-------------- --------------
TOTAL ASSETS $ 9,598,552 $ 6,680,807
============== ==============
LIABILITIES AND SHAREHOLDERS' INTEREST
Current liabilities:
Accounts payable $ 98,492 $ 162,913
Accrued expenses and other liabilities 3,293,270 1,579,376
-------------- --------------
Total current liabilities 3,391,762 1,742,289
-------------- --------------
Commitments and contingencies - -
Shareholders' interest:
5% preferred stock, $25 par value, 35,920
shares authorized, 2,427 shares
issued and outstanding 60,675 60,675
Common stock, $.01 par value, 20,000,000
shares authorized, 6,472,433 and
6,349,189 shares issued and outstanding,
respectively 64,724 63,492
Capital in excess of par value 27,842,851 27,560,312
Accumulated deficit (21,778,136) (22,745,961)
Other comprehensive income 16,676 -
-------------- --------------
Total shareholders' interest 6,206,790 4,938,518
-------------- --------------
TOTAL LIABILITIES AND SHAREHOLDERS'
INTEREST $ 9,598,552 $ 6,680,807
============== ==============
See accompanying notes
* Balances were derived from the July 31, 2004 audited balance sheet.
Page 3
PART I. FINANCIAL INFORMATION (Continued)
-----------------------------------------
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
Consolidated Statements of Operations
(Unaudited)
Three months ended
October 31,
2004 2003
------------ ------------
Revenues
Retained royalties $ 755,769 $ 386,899
Royalty settlements and awards 815,492 835,787
Stock dividend 679,149 -
Settlement with Unilens, net - 73,749
Interest income 148,558 66,674
Other income 32,049 -
------------ ------------
2,431,017 1,363,109
------------ ------------
Expenses
Personnel and other direct expenses
relating to revenues 1,023,739 558,809
General and administrative expenses 247,980 426,170
Patent enforcement expenses, net of
reimbursements 170,713 32,837
------------ ------------
1,442,432 1,017,816
------------ ------------
Income before income taxes 988,585 345,293
Provision for income taxes 20,760 -
------------ ------------
Net income $ 967,825 $ 345,293
============ ============
Net income per common share:
Basic $ 0.15 $ 0.06
============ ============
Assuming dilution $ 0.14 $ 0.06
============ ============
Weighted average number of common
shares outstanding:
Basic 6,399,715 6,201,345
Assuming dilution 6,700,832 6,201,345
See accompanying notes
Page 4
PART I. FINANCIAL INFORMATION (Continued)
-----------------------------------------
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
Consolidated Statement of Changes in Shareholders' Interest
For the three months ended October 31, 2004
(Unaudited)
Preferred Stock Common Stock
--------------------- ---------------------
Shares Shares Capital Other Total
issued and issued and in excess of Accumulated comprehensive Shareholders'
outstanding Amount outstanding Amount par value Deficit income Interest
----------- ----------------------------------------------------------------------------------------
Balance - July 31, 2004 2,427 $ 60,675 6,349,189 $ 63,492 $ 27,560,312 $(22,745,961) $ - $ 4,938,518
Exercise of common stock options - - 1,150 11 2,231 - - 2,242
Stock issued under 401(k) Plan - - 25,056 251 99,722 - - 99,973
Sales and issuances of stock in
equity financing - - 97,038 970 349,037 - - 350,007
Amortization of deferred equity
financing costs - - - - (168,451) - - (168,451)
Unrealized foreign exchange gain - - - - - - 16,676 16,676
Net income - - - - - 967,825 - 967,825
----------- --------- ----------- --------- ------------- ------------- ------------- --------------
Balance - October 31, 2004 2,427 $ 60,675 6,472,433 $ 64,724 $ 27,842,851 $(21,778,136) $ 16,676 $ 6,206,790
=========== ========= =========== ========= ============= ============= ============= ==============
See accompanying notes
Page 5
PART I. FINANCIAL INFORMATION (Continued)
-----------------------------------------
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Unaudited)
Three months ended
October 31,
2004 2003
------------ ------------
Cash flows from operating activities:
Net income $ 967,825 $ 345,293
Noncash and other expenses (income)
included in net income:
Depreciation and amortization 9,014 15,832
Stock compensation accrued 43,777 38,366
Stock dividend (679,149) -
Other (17,701) (73,750)
(Increase) decrease in current assets:
Receivables (199,279) 650,042
Prepaid expenses and other current
assets 38,441 95,841
Increase (decrease) in current liabilities:
Accounts payable and accrued expenses
and other liabilities 1,704,590 (152,389)
------------ ------------
Net cash provided by operating activities 1,867,518 919,235
------------ ------------
Cash flows from investing activities:
Purchases of property and equipment (21,370) -
Collection on Unilens receivable, net 154,619 73,749
Other - 2,364
------------ ------------
Net cash provided by investing activities 133,249 76,113
------------ ------------
Cash flows from financing activities:
Proceeds from exercise of stock options 2,242 -
Proceeds from sales of common stock 350,007 -
------------ ------------
Net cash provided by financing activities 352,249 -
------------ ------------
Net increase in cash and cash equivalents 2,353,016 995,348
Cash and cash equivalents at beginning of year 4,309,680 1,504,295
------------ ------------
Cash and cash equivalents at end of period $ 6,662,696 $ 2,499,643
============ ============
See accompanying notes
Page 6
PART I. FINANCIAL INFORMATION (Continued)
COMPETITIVE TECHNOLOGIES, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(Unaudited)
1. Basis of Presentation
---------------------
The interim consolidated financial information presented in the
accompanying consolidated financial statements and notes hereto is unaudited.
Competitive Technologies, Inc. ("CTT") and its majority owned subsidiaries
(collectively, "we" or "us") provide patent and technology licensing and
commercialization services throughout the world (with concentrations in the
U.S.A. and Asia) with respect to a broad range of life, digital/electronic,
physical, and nano (microscopic particles) science technologies originally
invented by various individuals, corporations and universities. We are
compensated for our services primarily by sharing in the license and royalty
fees generated from our successful licensing of our clients' technologies. The
consolidated financial statements include the accounts of CTT and its
subsidiaries. Intercompany accounts and transactions have been eliminated in
consolidation. Certain amounts in the prior year accompanying unaudited
consolidated financial statements have been reclassified to conform to the
current year's presentation.
We believe we have made all adjustments, primarily normal and recurring
adjustments, which are necessary to present the unaudited consolidated financial
statements fairly in conformity with accounting principles generally accepted in
the United States of America. The results for the three months ended October 31,
2004, are not necessarily indicative of the results that can be expected for the
full year.
You should read the interim unaudited consolidated financial statements and
notes thereto, as well as the accompanying Management's Discussion and Analysis
of Financial Condition and Results of Operations, in conjunction with our Annual
Report on Form 10-K for the year ended July 31, 2004. This report is available
on our website at www.competitivetech.net.
2. Royalty Settlements and Awards
------------------------------
On August 5, 2004, the U.S. Court of Appeals for the Federal Circuit
("CAFC") denied the petition of Laboratory Corporation of America Holdings d/b/a
LabCorp ("LabCorp") for a rehearing or a rehearing en banc (rehearing by the
full CAFC) of a June 8, 2004 decision affirming a November 2002 decision in
favor of Metabolite Laboratories, Inc. and us (collectively, the "Plaintiffs").
As a result of this decision, on August 16, 2004, the Plaintiffs received
approximately $6.7 million. Our share of the $6.7 million payment was $920,552
and, accordingly, we recorded $815,492 in royalty settlements and awards and
$105,060 in interest income during the quarter. The payment did not include
attorneys fees or court costs previously awarded to the Plaintiffs but still
under appeal with the court. In addition, our claim for additional attorneys
fees and court costs for the appeals is pending.
On November 3, 2004, LabCorp filed a petition for a writ of certiorari with
the U.S. Supreme Court (the "Court") relating to the November 2002 decision. (A
writ of certiorari is a petition requesting the Court to hear an appeal.) If the
Court denies LabCorp's petition, then LabCorp will have no further avenues of
appeal. If the Court agrees to hear LabCorp's appeal and if the original
judgment is subsequently reversed, LabCorp may attempt to recover amounts paid
to the Plaintiffs, including royalties paid to us as part of a January 2003
stipulated court order (the "Stipulated Order"). (Pursuant to the Stipulated
Order, the court had stayed execution of a monetary judgment and a permanent
injunction that prevented LabCorp from performing homocysteine assays, and
LabCorp had agreed to pay us a percentage of their homocysteine assay sales
during their appeals process.) LabCorp's ability to recover any amounts paid to
the Plaintiffs would depend on the extent and reason for the reversal. From
January 2003 through October 31, 2004, LabCorp paid us an aggregate of
$1,870,483 under the Stipulated Order, including both our retained amounts and
amounts paid or payable to our clients. We believe that the probability that
LabCorp will recover any amounts paid is remote.
Page 7
Effective October 30, 2003, we sold $1,125,000 plus subsequent interest of
our patent infringement judgment award against American Cyanamid Company in the
Materna(TM) lawsuit to LawFinance Group, Inc. ("LFG") for $900,000 in cash.
Since we had no financial obligation to repay LFG or to return any portion of
the cash we received from them, we recorded $835,787 in royalty settlements and
awards and $64,213 in interest income in October 2003. We also granted LFG a
first security interest in our share of the expected award.
3. Stock Dividend
--------------
In October 2004, our investee, Melanotan Corporation ("MelanoTan"), paid
its shareholders a dividend in the form of shares of stock of EpiTan Limited
(Australia) ("EpiTan"), MelanoTan's investee. As a result of our ownership of
20.9% of MelanoTan's shares, we received 1,252,346 shares of EpiTan common stock
(we previously reported in our Form 10-K for the year ended July 31, 2004, that
we had received 500,938 shares). Previously, we had licensed our rights to a
sunless tanning technology to MelanoTan and MelanoTan sublicensed the rights to
EpiTan. MelanoTan also received shares of EpiTan (MelanoTan has no operations of
its own). The technology may prevent or lessen skin cancer caused by unprotected
sun exposure, and EpiTan is in the process of testing and evaluating the
technology for future commercialization. EpiTan common stock is traded on the
Australian Stock Exchange (quoted in Australian dollars) under the symbol EPT.
As a condition to receiving the dividend, we agreed not to sell, transfer or
otherwise dispose of the shares before October 21, 2005.
We estimated the fair value of the EpiTan stock dividend using the closing
price of the shares and the exchange rate for converting Australian dollars to
U.S. dollars on the date that MelanoTan's board of directors approved the
dividend. We then discounted the value of the shares using a 20% discount factor
to recognize the estimated impact of the sale restriction and the high risk
associated with an investment in EpiTan stock, since EpiTan has minimal current
revenues and substantial current and accumulated net losses. We recorded the
estimated value of the shares, $679,149, as dividend income and included the
asset in prepaid expenses and other current assets, since we are restricted from
trading the shares. Subsequent unrealized market price and foreign exchange
gains or losses relating to the shares will be included in other comprehensive
income in shareholders' interest. For the period from the date we recorded the
dividend to October 31, 2004, we recorded an unrealized foreign exchange gain of
$16,676. Comprehensive income for the three months ended October 31, 2004 was
$984,501.
Page 8
4. Net Income Per Common Share
---------------------------
The following table sets forth our computations of basic and diluted net
income per common share.
For the three months ended October 31,
--------------------------------------
2004 2003
----------- -----------
Denominator for basic net income per
common share, weighted average common
shares outstanding 6,399,715 6,201,345
Dilutive effect of warrants and employees'
and directors' common stock options 301,117 -
----------- -----------
Denominator for net income per common
share, assuming dilution 6,700,832 6,201,345
=========== ===========
At October 31, 2004 and 2003, respectively, stock options and warrants to
purchase 578,278 and 1,001,567 shares of common stock were outstanding but were
not included in the computation of earnings per share because the exercise
prices were greater than the weighted average share prices for the quarters,
making them anti-dilutive (total options and warrants outstanding were 1,384,182
and 1,001,567, respectively).
5. Stock-Based Compensation
------------------------
We account for grants of stock options using the intrinsic value method
pursuant to Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees," and related Interpretations. Accordingly, since the
exercise price of the stock options granted under our stock option plans to
employees and directors was at least equal to the market value of the underlying
common stock on the grant date, we have not recorded any compensation expense
for stock options granted.
Under the provisions of Financial Accounting Standards Board Statement No.
123, "Accounting for Stock-Based Compensation," we are required to disclose the
impact on net income if we had used a fair value method, as defined, to account
for grants of stock options. Using the fair value method, as defined, our
results would have been:
For the three months ended October 31,
--------------------------------------
2004 2003
----------- -----------
Net income, as reported $ 967,825 $ 345,293
Deduct: Pro forma compensation
expense for stock options granted
using a fair value method (96,725) (99,199)
----------- -----------
Pro forma net income $ 871,100 $ 246,094
=========== ===========
Basic income per common share:
As reported $ 0.15 $ 0.06
=========== ===========
Pro forma $ 0.14 $ 0.04
=========== ===========
Income per common share,
assuming dilution:
As reported $ 0.14 $ 0.06
=========== ===========
Pro forma $ 0.13 $ 0.04
=========== ===========
Page 9
We estimated the fair value of stock options at the grant date using the
Black-Scholes option-pricing model. The Black-Scholes option-pricing model was
developed for use in estimating the fair value of traded options that have no
vesting restrictions and are fully transferable. In addition, option valuation
models require highly subjective input assumptions, including expected stock
price volatility and expected stock option lives. Because our stock options are
not publicly traded and have characteristics significantly different from those
of traded options, and because changes in the subjective input assumptions
affect the fair value estimate, we do not believe that option valuation models
necessarily provide a reliable single measure of the fair value of our stock
options.
The pro forma information shown above may not be representative of pro
forma fair value compensation effects in future periods.
6. Common Stock Sales Pursuant to Equity Financing
-----------------------------------------------
During the three months ended October 31, 2004, we sold 94,558 shares to
Fusion Capital Fund II, LLC ("Fusion Capital"), for $350,007, and issued 2,480
commitment shares (as defined in the equity financing agreement) for a total of
97,038 shares, pursuant to our equity financing agreement with Fusion Capital.
We will use the proceeds for general working capital needs. In addition, we
amortized $168,451 of deferred equity financing costs against capital in excess
of par value. We will amortize the remaining balance of the deferred equity
financing costs against capital in excess of par value as we sell common stock
to Fusion Capital in the future.
7. Accrued Expenses and Other Liabilities
--------------------------------------
Accrued expenses and other liabilities consist of the following:
October 31, July 31,
2004 2004
------------ ------------
Royalties payable $ 2,497,841 $ 625,908
Accrued professional fees 413,092 294,100
Accrued compensation 216,984 534,945
Other 165,353 124,423
------------ ------------
Accrued expenses and other liabilities $ 3,293,270 $ 1,579,376
============ ============
The increase in royalties payable from July 31, 2004 is the result of increased
royalties, including a new homocysteine license, and royalty settlements and
awards collected on behalf of our clients that will be paid in January 2005,
when they are due.
Page 10
8. Settlements
-----------
Bayer Corporation
On October 21, 2004, we granted Bayer Corporation, et al, ("Bayer") a
license under which Bayer agreed to pay us a fee and royalties on sales of
homocysteine assays beginning July 1, 2004. The fee is non-refundable and is not
creditable against future royalties. This license settled a complaint we filed
against Bayer on August 17, 2004, alleging infringement of our patent covering
homocysteine assays, in the U.S. District Court for the District of Colorado, in
which we sought monetary damages, punitive damages, attorneys fees, court costs
and other remuneration at the option of the court. Bayer had responded to our
complaint on September 27, 2004, denying the allegations. We recorded our share
of the license fee and royalties earned in retained royalties.
Federal Insurance Company
Effective October 13, 2004, Federal Insurance Company ("Federal") agreed to
pay us $167,500 and acknowledged that the deductible under our insurance policy
was deemed satisfied for purposes of a civil suit filed against us by the
Securities and Exchange Commission ("SEC") (described below). In return, we
agreed to withdraw with prejudice and release Federal from any and all claims we
made in a civil action filed against Federal on February 3, 2004, to enforce our
claim that Federal should reimburse us for expenses incurred by CTT, Mr. Frank
R. McPike, Jr. (our former Chief Executive Officer), and certain other directors
and officers relating to an SEC investigation, including any subsequent action
thereon. We recorded the payment as a reduction of litigation expenses, which
are included in general and administrative expenses.
On September 15, 2004, the Chubb Group of Insurance Companies, on behalf of
Federal, agreed to accept coverage as to losses, including defense costs, that
CTT and Mr. McPike incur as a result of the SEC's civil suit (described below),
according to the terms of the policy. Accordingly, we have recorded amounts
incurred relating to the SEC civil suit as a receivable, and not as litigation
expenses.
9. Contingencies
-------------
Palatin Technologies, Inc.
On October 27, 2004, we notified Palatin Technologies, Inc. ("Palatin")
that we were demanding arbitration as a result of our belief that Palatin was in
material breach of their license agreement with us for their exclusive use of
our technology in developing their experimental therapeutic treatment for male
and female sexual dysfunction. Under the terms of our license agreement with
Palatin, we are entitled to receive 20% of any sublicense fee that Palatin
receives. On August 13, 2004, Palatin announced that they had granted a
co-exclusive license to King Pharmaceuticals, Inc. ("King"), included in a $20
million Collaborative Development and Marketing Agreement between Palatin and
King. On August 18, 2004, Palatin announced that they had received the $20
million from King, but we have not received any funds from Palatin relating to
this sublicense. Our license with Palatin provides for binding arbitration of
disputes. We expect the arbitration hearing to occur in the first half of
calendar 2005.
Page 11
JDS Uniphase Corp.
On October 5, 2004, we filed a complaint seeking damages, interest, costs
and attorneys fees, and punitive damages against JDS Uniphase Corp. ("JDS
Uniphase"), alleging that they failed to fulfill obligations under a license
agreement and misrepresented royalties due to us. The complaint was filed in the
Superior Court, Judicial District of Fairfield, at Bridgeport, Connecticut.
Further action in this case is pending.
Securities and Exchange Commission
On August 11, 2004, the SEC filed a civil suit naming Competitive
Technologies, Inc., Frank R. McPike, Jr. (our former Chief Executive Officer),
and six individual brokers in the U.S. District Court for the District of
Connecticut, alleging that from at least July 1998 to June 2001, the defendants
were involved in a scheme to manipulate the price of our stock. The case relates
to our 1998 stock repurchase program under which we repurchased shares of our
common stock from time to time during the period from October 28, 1998 to March
22, 2001. CTT was named as a defendant in the suit due to the alleged conduct of
Mr. McPike, whose conduct in connection with the stock repurchase program was
imputed to CTT as a matter of law. Relating to CTT, the SEC seeks a permanent
injunction prohibiting CTT from further violations of the Securities Exchange
Act of 1934 and a civil penalty pursuant to Section 21(d)(3) of the Securities
Exchange Act of 1934 (this section provides for maximum penalties of $550,000
for a corporate entity and $110,000 per individual). On September 24, 2004, we
filed a motion to dismiss this suit. On October 15, 2004, the SEC filed a motion
opposing our motion to dismiss the suit. Further action in this case is pending.
Abbott Laboratories, Inc.
On June 8, 2004, we filed a complaint alleging infringement of our patent
covering homocysteine assays against Abbott Laboratories, Inc., ("Abbott"), in
the U.S. District Court for the District of Colorado, seeking monetary damages,
punitive damages, attorneys fees, court costs and other remuneration at the
option of the court. Abbott was served notice of our complaint in August and
responded to the suit on October 12, 2004, denying the allegations. Further
action in this case is pending.
Fujitsu
On September 20, 2004, the judge in the Fujitsu litigation entered a
stipulated order staying certain issues relating to the case, including the
counterclaims, pending resolution of the University of Illinois' appeal of the
summary judgment that was granted on July 1, 2004, in favor of Fujitsu. Further
action in this case is pending.
Other
By letter dated October 7, 2003, the U.S. Department of Labor notified us
that certain former employees had filed complaints alleging discriminatory
employment practices in violation of Section 806 of the Corporate and Criminal
Fraud Accountability Act of 2002, 18 U.S.C. 1514A, also known as the
Sarbanes-Oxley Act. The complainants requested that the Occupational Safety and
Health Administration ("OSHA") investigate and, if appropriate, prosecute such
violations and requested OSHA assistance in obtaining fair and reasonable
reimbursement and compensation for damages. We believe that the claims are
without merit, and we have responded aggressively to the complaints.
We cannot predict the final outcomes to our legal actions and proceedings,
nor are we able to estimate the legal expenses, potential losses we may incur,
or possible damages we may recover in any of these legal actions and
proceedings, if any. We have not recorded any potential losses or income in our
financial statements to date. We record expenses in connection with these
matters as they are incurred. An unfavorable resolution of any or all matters
where we are a defendant, and/or our incurrence of significant legal fees and
other costs to defend or prosecute any of these actions and proceedings may,
depending upon the amount and timing, have a material adverse effect on our
consolidated financial position, results of operations or cash flows in a
particular period.
Page 12
We believe that we carry adequate liability insurance, directors' and
officers' insurance, casualty insurance (for owned or leased tangible assets),
and other insurance as needed to cover us against potential claims that occur in
the course of our business.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Forward-Looking Statements
- --------------------------
Certain statements about our future expectations, including development and
regulatory plans, and all other statements in this Quarterly Report on Form
10-Q, other than historical facts, are "forward-looking statements" within the
meaning of applicable Federal Securities Laws, and are not guarantees of future
performance. When used in this Form 10-Q, the words "anticipate," "believe,"
"intend," "plan," "expect," "estimate," "approximate," and similar expressions,
as they relate to us or our business or management, are intended to identify
such forward-looking statements. These statements involve risks and
uncertainties related to market acceptance of and competition for our licensed
technologies, and other risks and uncertainties inherent in our business,
including those set forth in Item 7 under the caption "Risk Factors," in our
Annual Report on Form 10-K for the year ended July 31, 2004, filed with the
Securities and Exchange Commission ("SEC") on October 29, 2004, and other
factors that may be described in our other filings with the SEC, and are subject
to change at any time. Our actual results could differ materially from these
forward-looking statements. We undertake no obligation to update publicly any
forward-looking statement.
Overview
- --------
We are a full service technology transfer and licensing provider focused on
the technology needs of our customers and transforming those requirements into
commercially viable solutions. We develop relationships with universities,
companies, inventors and patent or intellectual property holders to obtain the
rights or a license to their technologies, and they become our clients, for whom
we find markets for the technologies. We also develop relationships with those
who have a need or use for specific technologies, and they become our customers,
usually through a license or sublicense. We identify and commercialize
innovative technologies in life, digital/electronic, nano, and physical sciences
developed by universities, companies and inventors, and match our customers'
needs with our clients' technologies. Our goal is to maximize the value of
intellectual assets for the benefit of our clients, customers and shareholders.
We earn revenues primarily from licensing our clients' and our intellectual
property rights, principally patents and inventions (collectively, the
"Technology"), to our customers (licensees). Our customers pay us royalties
based on their use of the Technology, and we share those royalties with our
clients. We determine the amount of royalty revenue to record when we can
estimate the amount of royalties we have earned for a period, which occurs when
we receive periodic royalty reports from our customers listing sales of licensed
products and royalties earned in the period. We receive these reports monthly,
quarterly, or semi-annually. Since reports are not received on the same
frequency, revenues will fluctuate from one quarter to another.
Page 13
For the three months ended October 31, 2004, we had a concentration of
revenues derived from homocysteine assays.
Because we have rounded all amounts in this Item 2 to the nearest thousand
dollars, certain amounts may not total precisely. In addition, all periods
discussed in this Item 2 relate to our fiscal year ending July 31 (first,
second, third and fourth quarters ending October 31, January 31, April 30 and
July 31, respectively).
Results of Operations - Three Months Ended October 31, 2004 (First Quarter 2005)
- --------------------------------------------------------------------------------
vs. Three Months Ended October 31, 2003 (First Quarter 2004)
- ------------------------------------------------------------
Summary of Results
Net income for the first quarter 2005 was $968,000, or $0.14 per diluted
share, compared to net income of $345,000, or $0.06 per diluted share, for the
first quarter 2004, an improvement of $623,000, or $0.08 per diluted share.
Revenues
--------
In the first quarter 2005, total revenues were $2,431,000, compared to
$1,363,000 for the first quarter 2004, an increase of $1,068,000, or 78%.
Retained royalties for the first quarter 2005 were $756,000, which was
$369,000 or 95% higher than the $387,000 reported in the first quarter of 2004.
The following table compares retained royalty revenues in the first quarter 2005
with the first quarter 2004.
For the three months ended October 31,
----------------------------------------------
Increase % Increase
2004 2003 (Decrease) (Decrease)
---------- ---------- ---------- -----------
Homocysteine assay $ 675,000 $ 266,000 $ 409,000 154%
All other Technologies 81,000 121,000 (40,000) (33%)
---------- ---------- ----------
Total retained royalties $ 756,000 $ 387,000 $ 369,000 95%
========== ========== ==========
The increase in revenues from the homocysteine assay was due, in part, to
an upfront license fee and royalties earned on one calendar quarter of sales
pursuant to the license we granted to Bayer Corporation on October 21, 2004.
Other increases in homocysteine assay revenues were from Laboratory Corporation
of America Holdings d/b/a LabCorp ("LabCorp") and other previously existing
licenses. The first quarter of 2004 included homocysteine assay royalties from a
non-recurring royalty audit settlement that partially offset the current year
increases. For revenues from all other technologies, increased royalties from a
recently producing license were more than offset by reduced royalties due to a
license that expired after the first quarter of 2004.
We believe that revenues from the homocysteine assay will continue to grow,
possibly at a substantial rate, but we cannot predict if or when we will succeed
in closing additional license agreements and enforcing our patent rights or how
the growth in volume will affect assay pricing. In November 2004, we granted
Diagnostic Products Corporation a license to perform homocysteine assays that
included an upfront license fee and royalties on future assays. (We will include
revenues from this new license in the second quarter 2005 and beyond.) We also
filed suit against Abbott Laboratories, Inc. for infringement of our
homocysteine assay patent and are pursuing other laboratories and diagnostic
supply companies performing or manufacturing homocysteine assays to protect our
rights to receive royalties on each assay performed. Our U.S. patent that covers
the homocysteine assay expires in July 2007.
Page 14
Approximately 89% of our retained royalties for first quarter 2005 was from
the homocysteine assay Technology. We continue to seek licenses to new
Technologies to mitigate this concentration of revenues, to replace revenues
from expiring licenses and to provide future revenues.
Royalty settlements and awards of $815,000 in the first quarter 2005 were
from our share of the award from LabCorp received as a result of the denial on
August 5, 2004 by the U.S. Court of Appeals for the Federal Circuit ("CAFC") of
LabCorp's petition for a rehearing by the CAFC. (The LabCorp litigation
confirmed the validity of our homocysteine assay patent rights.) In addition to
the award, we received $105,000 of interest income. On November 3, 2004, LabCorp
filed a petition for a writ of certiorari with the U.S. Supreme Court - see Part
II, Item 1., "Legal Proceedings." (We believe that the probability that LabCourt
ultimately will prevail is remote.) We also were granted attorneys fees and
court costs in this case, and have filed for reimbursement of such costs related
to the appeals. These claims are pending.
In the first quarter 2004 our royalty settlements and awards of $836,000
were from our non-recourse sale of a portion of our share of the award in the
Materna(TM) litigation to generate a total of $900,000 in cash, including
$64,000 recorded in interest income.
Stock dividend of $679,000 in the first quarter 2005, was from our receipt
of a dividend from our investee, Melanotan Corporation ("MelanoTan"). In October
2004, MelanoTan paid its shareholders a dividend in the form of shares of common
stock of EpiTan Limited (Australia) ("EpiTan"), MelanoTan's investee. As a
result, we received 1,252,346 shares of EpiTan common stock (we previously
reported in our Form 10-K for the year ended July 31, 2004, that we had received
500,938 shares). Previously, we had licensed our rights to a sunless tanning
Technology to MelanoTan and MelanoTan sublicensed the rights to EpiTan.
MelanoTan also received shares of EpiTan (MelanoTan has no operations of its
own). The Technology may prevent or lessen skin cancer caused by unprotected sun
exposure, and EpiTan is in the process of testing and evaluating the Technology
for future commercialization. EpiTan common stock is traded on the Australian
Stock Exchange (quoted in Australian dollars) under the symbol EPT. As a
condition to receiving the dividend, we agreed not to sell, transfer or
otherwise dispose of the shares before October 21, 2005.
We estimated the fair value of our EpiTan stock dividend using the closing
price of the shares and the exchange rate for converting Australian dollars to
U.S. dollars on the date MelanoTan's board of directors approved the dividend.
We then discounted the value of the shares using a 20% discount factor to
recognize the estimated impact of the sale restriction and the high risk
associated with an investment in EpiTan stock, since EpiTan has minimal revenues
and has incurred substantial current and accumulated net losses.
Settlement with Unilens, net in the first quarter 2004 was from the first
installment from Unilens Corp. USA ("Unilens") under our October 2003 settlement
of an old receivable from Unilens. Due to Unilens' financial condition and the
uncertainty of collecting the installments due from the settlement, we recorded
revenue, net of related expenses, in fiscal 2004 when we received payments from
Unilens. At July 31, 2004, we reviewed Unilens' financial condition and
determined that the entire remaining balance of the receivable was collectible
and recorded the net present value of the receivable and related settlement
income at July 31, 2004.
Page 15
Interest income in the first quarter 2005 includes $105,000 in connection
with the LabCorp litigation award and interest earned on our invested cash and
cash equivalents. In the first quarter 2004, interest income included $64,000 in
connection with our non-recourse sale of a portion of our share of the Materna
award and interest earned on our invested cash and cash equivalents. The
increase in interest income earned from invested cash and cash equivalents in
the current year compared to the prior year is due to significantly higher cash
balances and 0.6% per annum higher interest rates this year.
Expenses
For the three months ended October 31,
-----------------------------------------------
Increase % Increase
2004 2003 (Decrease) (Decrease)
------------ ------------ ---------- ----------
Personnel and other direct
expenses relating to revenues $ 1,024,000 $ 559,000 $ 465,000 83%
General and administrative
expenses 248,000 426,000 (178,000) (42%)
Patent enforcement expenses, net
of reimbursements 170,000 33,000 137,000 415%
------------ ------------ ----------
Total expenses $ 1,442,000 $ 1,018,000 $ 424,000 42%
============ ============ ==========
Personnel and other direct expenses relating to revenues increased due to
several factors. Our personnel expenses for the first quarter 2005 increased
$409,000 since we have more full-time equivalent employees as we continue to
expand our business development efforts, and for salary increases and higher
incentive bonus accruals. In addition, other direct expenses relating to
revenues increased $56,000 due to costs in connection with collecting additional
royalties relating to an ongoing royalty audit and a one-time charge for
technical services to support licensing a Technology (which costs are partially
recoverable from future licensing revenues, if any), which were partially offset
by lower direct costs related to licensing other technologies.
General and administrative expenses decreased principally due to a $168,000
payment received from our directors' and officers' liability insurance carrier
as settlement of our claim for reimbursement of amounts incurred in connection
with an investigation by the Securities and Exchange Commission ("SEC"). Costs
related to the investigation were previously expensed as incurred. (In addition
to the payment, our insurance carrier confirmed that they will provide coverage
(in accordance with the terms of the policy) for losses incurred in the SEC
litigation (see Part II, Item 1., "Legal Proceedings"). Our carrier also
acknowledged that we had met our deductible under our policy relating to this
matter. Accordingly, we have recorded amounts incurred relating to the SEC civil
suit as a receivable, and not as litigation expenses.
Patent enforcement expenses, net of reimbursements, increased principally
due to our lawsuits against LabCorp, Abbott and Bayer to enforce our
homocysteine assay patent rights and our demand for arbitration of our dispute
with Palatin Technologies, Inc. (see Part II, Item 1., "Legal Proceedings"). The
level of patent enforcement expenses relates to our legal strategy and varies
depending on the stage of the litigation. Activity related to homocysteine assay
patent rights was considerably higher in the first quarter 2005 compared to
2004, but the Fujitsu case was less active in the first quarter 2005.
Page 16
Provision for income taxes
--------------------------
In the first quarter 2005 we provided $21,000 for our federal income tax
liability at our estimated effective annual income tax rate of 2.1%. We have
federal and state income tax loss carryforwards to reduce our regular taxable
income and income tax liability significantly. We expect our tax liability to be
principally for the federal alternative minimum income tax. In the prior year,
we incurred a loss for tax purposes but did not record a benefit since we could
not conclude that it was more likely than not that we would realize the benefit.
Financial Condition and Liquidity
- ---------------------------------
Our liquidity requirements arise principally from our working capital
needs, including funds needed to find, obtain and license new Technologies and
to protect and enforce our intellectual property rights, if necessary. We fund
our liquidity requirements with a combination of cash on hand and cash flows
from operations, including legal settlements and awards. In addition, we have
the ability to fund our requirements through sales of common stock under an
equity financing arrangement (see below). At October 31, 2004, we had no
outstanding debt or available credit facility.
Cash and cash equivalents consist of demand deposits and highly liquid,
interest earning investments with maturities when purchased of three months or
less, including overnight bank deposits and money market funds. We carry cash
equivalents at cost, which approximates fair value.
At October 31, 2004, cash and cash equivalents were $6,663,000, compared to
$4,310,000 at July 31, 2004. The increase in cash primarily was due to receiving
the LabCorp award, new revenues from homocysteine assays, and sales of our
common stock pursuant to our equity financing. Cash provided by operating
activities during the three months ended October 31, 2004, was $1,868,000,
compared to $919,000 during the same period of the prior year. The increase in
cash from operating activities in the current year compared to the prior year
resulted principally from our receipt of significant royalties and royalty
settlements and awards during the current quarter, including our clients' shares
that we will pay to them in January 2005, when they are due. Cash provided by
investing activities in the current quarter was $133,000, compared to $76,000 in
the same period of the prior year. In the current year we collected more cash on
our receivable from Unilens. Cash provided by financing activities in the
current year was $352,000, principally from sales of our common stock to Fusion
Capital Fund II, LLC ("Fusion Capital") (see below). There was no cash provided
by or used in financing activities in the comparable quarter of the prior year.
In addition to fluctuations in the amounts of royalties and our clients'
shares of royalty settlements and awards, changes in royalties receivable and
payable reflect our normal cycle of royalty collections and payments and
fluctuate depending on when royalty receipts and payments are due under our
agreements with clients and customers.
Funding and capital requirements
LabCorp litigation
On August 5, 2004, the CAFC denied LabCorp's petition for a rehearing or a
rehearing en banc (rehearing by the full CAFC) of a June 8, 2004 decision
affirming a November 2002 decision in favor of Metabolite Laboratories, Inc. and
us, (collectively, the "Plaintiffs"). As a result of this decision, on August
16, 2004, the Plaintiffs received approximately $6.7 million. Our share of the
$6.7 million payment was $921,000 and, accordingly, we recorded $815,000 in
royalty settlements and awards and $105,000 in interest income during the
quarter. The payment did not include attorneys fees or court costs previously
awarded to the Plaintiffs but still under appeal with the court. In addition,
our claim for additional attorneys fees and court costs for the appeals is
pending.
Page 17
On November 3, 2004, LabCorp filed a petition for a writ of certiorari with
the U.S. Supreme Court (the "Court") relating to the November 2002 decision. (A
writ of certiorari is a petition requesting the Court to hear an appeal.) If the
Court denies LabCorp's petition, then LabCorp will have no further avenues of
appeal. If the Court agrees to hear LabCorp's appeal and if the original
judgment is subsequently reversed, LabCorp may attempt to recover amounts paid
to the Plaintiffs, including royalties paid to us as part of a January 2003
stipulated court order (the "Stipulated Order"). (Pursuant to the Stipulated
Order, the court had stayed execution of a monetary judgment and a permanent
injunction that prevented LabCorp from performing homocysteine assays, and
LabCorp had agreed to pay us a percentage of their homocysteine assay sales
during their appeals process.) LabCorp's ability to recover any amounts paid to
the Plaintiffs would depend on the extent and reason for the reversal. From
January 2003 through October 31, 2004, LabCorp paid us an aggregate of
$1,870,483 under the Stipulated Order, including both our retained amounts and
amounts paid or payable to our clients. We believe that the probability that
LabCorp will recover any amounts paid is remote.
Equity Financing
In February 2004, we entered into an equity financing agreement with Fusion
Capital, pursuant to which we can sell Fusion Capital up to $5 million of our
common stock, at our option. During the three months ended October 31, 2004, we
sold approximately $350,000 of common stock to Fusion Capital, and from November
1 through November 30, 2004, we sold approximately $575,000 of common stock to
Fusion Capital. We will use the proceeds for general working capital needs. The
aggregate proceeds through November 30, 2004 from sales to Fusion Capital are
approximately $1,125,000. Although we have the ability to sell up to $5 million
of our common stock to Fusion Capital, we currently estimate that we will sell
$2 million in total to Fusion Capital pursuant to the equity financing
agreement. However, this estimate could change at any time. In addition, we have
the option of entering into another equity financing agreement with Fusion
Capital for an additional $5 million upon termination of the current agreement.
General
The amounts and timing of our future cash requirements will depend on many
factors, including the results of our operations and marketing efforts, the
results and costs of legal proceedings, and our equity financing. To sustain
profitability, we must license Technologies with sufficient current and
long-term revenue streams and continually add new licenses. However, obtaining
rights to new Technologies, granting rights to licensees, enforcing intellectual
property rights, and collecting royalty revenues are subject to many factors
beyond our control or that we cannot currently anticipate. Although there can be
no assurance that we will be successful in our efforts, we believe that the
combination of our cash on hand, revenues from executing our strategic plan, and
the ability to raise funds from sales of our common stock pursuant to our equity
financing agreement will be sufficient to meet our current and anticipated
operating cash requirements at least through our fiscal year ending July 31,
2006.
Contingencies
We are a party to several legal actions and proceedings, both as a
plaintiff and as a defendant, for which we cannot predict the final outcomes.
These matters have been detailed in prior filings with the SEC. Depending upon
the amount and timing, an unfavorable resolution of any or all matters where we
are a defendant and/or our incurring significant legal fees and other costs to
defend or prosecute any of these actions and proceedings may have a material
adverse effect on our consolidated financial position, results of operations or
cash flows in a particular period.
Page 18
Other matters
We believe that we carry adequate liability insurance, directors' and
officers' insurance, casualty insurance (for owned or leased tangible assets),
and other insurance as needed to cover us against potential claims that occur in
the course of our business.
On November 10, 2004, we received notification from the American Stock
Exchange ("AMEX") that we had evidenced compliance with the requirements
necessary for continued listing on the AMEX.
Critical Accounting Estimates
- -----------------------------
There have been no significant changes in our accounting estimates
described under the caption "Critical Accounting Estimates," included in Item 7,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," in our Annual Report on Form 10-K for the year ended July 31, 2004.
We estimated the fair value of our EpiTan stock dividend using the closing
price of the shares and the exchange rate for converting Australian dollars to
U.S. dollars on the date MelanoTan's board of directors approved the dividend.
We then discounted the value of the shares using a 20% discount factor to
recognize the estimated impact of the sale restriction and the high risk
associated with an investment in EpiTan stock, since EpiTan has minimal current
revenues and has incurred substantial current and accumulated net losses.
Related Party Transactions
- --------------------------
We previously disclosed that our board of directors had determined that
when a director's services are outside the normal duties of a director, we
should compensate the director at the rate of $1,000 per day, plus expenses
(which is the same amount that we pay a director for attending a one-day Board
meeting).
During the three months ended October 31, 2004 we incurred $10,475 of
costs, including expenses, (reported in personnel and other direct expenses
relating to revenues) related to consulting services provided by one of our
directors.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
----------------------------------------------------------
We do not have any significant market risk other than risks related to our
shares of EpiTan common stock. The value of the stock is subject to market
fluctuations in the per share price of EpiTan stock as well as foreign currency
fluctuations, since EpiTan common stock is traded on the Australian Stock
Exchange and the price per share of the stock is quoted in Australian dollars.
We received the shares during the quarter ended October 31, 2004, and the
unrealized gain to date has been minimal.
Page 19
Item 4. Controls and Procedures
-----------------------
(a) Evaluation of Disclosure Controls and Procedures
------------------------------------------------
Our management, including our Chief Executive Officer and Chief
Financial Officer, evaluated the effectiveness of the design and operation of
our disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) as of October 31, 2004. Our disclosure controls and
procedures are designed to ensure that information required to be disclosed in
reports filed under the Securities Exchange Act of 1934 is recorded, processed,
summarized, and reported as specified in the Securities and Exchange
Commission's rules and forms. Based on this evaluation, our Chief Executive
Officer and Chief Financial Officer concluded that these controls were effective
as of October 31, 2004.
(b) Change in Internal Controls
There were no significant changes in our internal control over
financial reporting during the quarter ended October 31, 2004, that have
materially affected, or are reasonably likely to materially affect, our internal
control over financial reporting.
PART II - OTHER INFORMATION
---------------------------
Item 1. Legal Proceedings
-----------------
See Notes 2, 8 and 9 to the accompanying unaudited condensed consolidated
financial statements in Part I of this Quarterly Report on Form 10-Q.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
-----------------------------------------------------------
The following table lists sales and issuances of our common stock to Fusion
Capital during the three months ended October 31, 2004, pursuant to the $5
million equity financing arrangement with Fusion Capital as described in Part I,
Item 2, "Management's Discussion and Analysis of Financial Condition and Results
of Operations." We issued all of these securities without registration in
reliance on an exemption under Section 4(2) of the Securities Act of 1933
because we made the offers and sales in private placements.
Number of
shares sold Total cash
Date and issued received
------------------- ------------- ------------
August 18, 2004 29,145 $ 100,000
October 1, 2004 13,617 50,002
October 11, 2004 13,664 50,001
October 13, 2004 27,282 100,003
October 23, 2004 13,330 50,001
------------- ------------
97,038 $ 350,007
============= ============
Page 20
Item 6. Exhibits
--------
A) Exhibits Page
----
3.1 By laws of the registrant as amended effective July 27, 2004,
filed (on October 29, 2004) as Exhibit 3.2 to registrant's Form
10-K for the year ended July 31, 2004 and hereby incorporated
by reference.
3.2 By laws of the registrant as amended effective January 14,
2005. 23-30
10.1* Employment Agreement by and between Competitive
Technologies, Inc. and Donald J. Freed dated September 27,
2004, filed (on September 29, 2004) as Exhibit 10.1 to
registrant's Form 8-K dated September 27, 2004 and hereby
incorporated by reference.
31.1 Certification by the Principal Executive Officer of Competitive
Technologies, Inc. pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002 (Rule 13a-14(a) or Rule 15d-14(a)). 31
31.2 Certification by the Principal Financial Officer of Competitive
Technologies, Inc. pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002 (Rule 13a-14(a) or Rule 15d-14(a)). 32
32.1 Certification by the Principal Executive Officer of Competitive
Technologies, Inc. pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002 (18 U.S.C. 1350) (furnished herewith). 33
32.2 Certification by the Principal Financial Officer of Competitive
Technologies, Inc. pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002 (18 U.S.C. 1350) (furnished herewith). 34
* Management contract or compensatory plan
[Signature page follows]
Page 21
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COMPETITIVE TECHNOLOGIES, INC.
(the registrant)
By /s/ John B. Nano
------------------------------
John B. Nano
President, Chief Executive
Date: December 14, 2004 Officer and Authorized Signer
COMPETITIVE TECHNOLOGIES, INC.
(the registrant)
By /s/ Michael D. Davidson
------------------------------
Michael D. Davidson
Date: December 14, 2004 Chief Financial Officer and
Authorized Signer
Page 22