Attached files
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| EX-99.1 - VALUATION REPORT - HIPCRICKET, INC. | ex99-1.htm |
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
DC 20549-1004
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported) November 12, 2009
MODAVOX,
INC.
(Exact
Name of Registrant as Specified in its Charter)
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STATE
OF DELAWARE
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333-57818
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20-0122076
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(State
or other jurisdiction of
Incorporation
or Organization)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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1900
W University Dr, Suite 231
Tempe,
AZ 85281
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85281-3291
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (480) 553
5795
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17-CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
7.01 Regulation FD Disclosure
In
connection with its previously announced patent monetization and licensing
strategy, including its ongoing patent enforcement cases, Modavox, Inc. (the
“Company”) retained a third-party economic consulting firm (the “Valuation
Firm”) to prepare a report and valuation models (the “Report”) identifying the
estimated value of the Company's patent portfolio to the online and mobile
segments of the behaviorally targeted marketing/advertising industry, as well as
to potential licensees, including targeted defendants, of the patents in such
industry segments. The Report is dated October 1, 2009.
On
November 9, 2009, the Company furnished the Report to a targeted defendant in a
currently pending patent enforcement case pursuant to Rule 26 of the Federal
Rules of Civil Procedure and in response to a Court Order instructing parties to
the case to, among other things, meet and discuss settlement. A copy of the
Report is attached hereto as Exhibit 99.1. At the request of
litigation counsel to the Company in its patent enforcement cases, the Report
has been redacted to omit information that counsel believes could, if disclosed,
interfere with the Company’s overall patent enforcement strategies. As an
example, the Company has redacted the identity of a targeted defendant and
replaced it with an “X”, as well as information about the defendant that may
indirectly identify the targeted defendant or which relates to the
litigation.
The
conclusions reached in the Report should be considered in light of the context
in which they were reached. That is, the Report was prepared by the Valuation
Firm to assist the Company in understanding the range of values of its patents
in the online and mobile segments of the behavioral targeted
marketing/advertising industry. Furthermore, the Report was prepared in the
context of the Company’s ongoing litigation with various defendants and the
potential for settlement of such litigation matters. As such, the Report
necessarily contemplates the inherent “value” of such litigation matters, as
well as lawsuits that may be brought in the future. The Report includes details
regarding the factors that impact the conclusions reached, including the
qualifications and assumptions made in determining value. There are
no assurances that a defendant or potential licensee will accept or agree with
the conclusions contained in the Report, and the range of values presented may
have no bearing or impact on any actual settlement or judgment.
The
Company did not give the Valuation Firm any meaningful instruction on how to
prepare the Report or the conclusions in the Report, nor did it impose any
limitations on the Valuation Firm in preparing the Report, except as otherwise
stated in the Report as to the information provided by the Company. Pursuant to
an engagement letter dated August 11, 2009, the Valuation Firm has charged for
its services at its hourly rates. The fees were not contingent upon any event or
outcome, including the outcome of any litigation. Our engagement letter with the
Valuation Firm includes other terms and provisions customary for an advisory
assignment such as this. The Valuation Firm provides general business
operations, management, regulatory and litigation consulting to corporations,
government agencies and counsel.
The
Report discloses the information that the Valuation Firm was provided in
connection with its analyses on page 6. The information provided included
forward-looking statements and projections and was based upon the assumptions
set forth in detail on pages 7 through 17 and 31 through 32 of the
Report, or was otherwise provided by a third party. The Valuation Firm did not
independently verify the assumptions or conclusions set forth in those
projections and forecasts. These assumptions involve judgments with respect to
the nature and history of the patented technology, future economic, competitive
and regulatory conditions, the outcome of pending litigation, financial market
conditions and future business decisions, all of which are difficult or
impossible to predict accurately and many of which are beyond our control. Many
important factors, in addition to those discussed elsewhere in the Report and in
our filings with the SEC, could cause our results to differ materially from
those expressed or implied by the forward-looking statements. These factors
include the outcome of any litigation relating to our patents, the validity of
the patents, changes in the law, our competitive environment, economic and other
market conditions in which we operate and matters affecting business generally,
and other factors described in the Company’s Annual Report on Form 10-K and
documents subsequently filed by the Company with the Securities and Exchange
Commission, all of which are difficult to predict and many of which are beyond
our control. Accordingly, we cannot assure you that the projections and
assumptions on which the Report based its opinion are in fact indicative of our
future performance or that actual results will not differ materially from such
projections. All
forward-looking statements included in the Report are based on information
available at the time of the Report and as otherwise stated in the Report. We
are under no obligation to (and expressly disclaim any such obligation to)
update or alter the Report or the forward-looking statements set forth in the
Report, whether as a result of new information, future events or otherwise,
except as required by applicable law.
THE
TEXT OF THE WRITTEN REPORT, AS REDACTED, IS ATTACHED AS EXHIBIT 99.1 AND SHOULD
BE READ CAREFULLY IN ITS ENTIRETY. THE REPORT IS ADDRESSED TO THE COMPANY
THROUGH ITS CHAIRMAN OF THE BOARD AND RELATES ONLY TO THE VALUATION OF THE
COMPANY’S PATENT PORTFOLIO AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY
STOCKHOLDER OR PROSPECTIVE STOCKHOLDER WITH RESPECT TO AN INVESTMENT IN OUR
SECURITIES OR ANY OTHER MATTER THAT MAY BE PRESENTED TO
OUR STOCKHOLDERS. BECAUSE THE REPORT WAS PREPARED IN CONNECTION WITH
LITIGATION AND NOT IN CONNECTION WITH ANY TRANSACTION, IT SHOULD NOT BE RELIED
UPON FOR INVESTMENT PURPOSES.
The
information in this current Report and the exhibits attached hereto are being
furnished and shall not be deemed "filed" for the purposes of Section 18 of the
Securities Exchange Act of 1934 or otherwise subject to the liabilities of that
Section. The information in this current Report and the exhibits attached hereto
shall not be incorporated by reference into any registration statement or other
document filed with the Commission.
Item
9.01 Financial Statement and Exhibits.
(d)
Exhibits
99.1 Valuation
Report, dated October 1, 2009, as redacted by the Company and its patent
litigation counsel.
* * * * *
*
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this Report to be signed on its behalf by the undersigned hereunto
duly authorized.
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MODAVOX, INC.
(Registrant)
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Date:
November 12, 2009
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By:
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/s/
MARK SEVERINI
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(Mark
Severini, Chief Executive Officer)
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