UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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||
FORM
10-Q
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||
(Mark
One)
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x |
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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For
the quarterly period ended March 31, 2010
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or
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o |
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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For
the transition period from _________________ to
_______________________
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Commission
file number: 000-31121
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AVISTAR
COMMUNICATIONS CORPORATION
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||
(Exact
name of registrant as specified in its charter)
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DELAWARE
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88-0463156
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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1875
South Grant Street,
10TH
Floor, San Mateo, CA
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94402
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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: (650) 525-3300
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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.
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Yes
x No o
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||
Indicate by check mark whether the registrant has
submitted electronically and posted on its corporate Web site, if any,
every Interactive Data File required to be submitted and posted pursuant
to Rule 405 of Regulation S-T during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such
files).
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||
Yes o No o
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definition of "accelerated filer," "large
accelerated filer" and "smaller reporting company" in Rule 12b-2 of the
Exchange Act. (check one):
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Large
accelerated filer o
Non-accelerated
filer o
(Do
not check if a small reporting company)
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Accelerated
filer o
Smaller
reporting company x
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|
Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act).
Yes
o No
x
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At
April 12, 2010, 39,022,344 shares of common stock of the Registrant were
outstanding.
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Page
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PART
I.
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FINANCIAL
INFORMATION
|
1 | |||
Item
1.
|
Financial
Statements
(unaudited)
|
1 | |||
Condensed
Consolidated Balance
Sheets
|
1 | ||||
Condensed
Consolidated Statements of
Operations
|
2 | ||||
Condensed
Consolidated Statements of Cash
Flows
|
3 | ||||
Notes
to Condensed Consolidated Financial
Statements
|
4 | ||||
Item
2.
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Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
14 | |||
Item
3.
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Quantitative
and Qualitative Disclosures about Market
Risk
|
19 | |||
Item
4T.
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Controls
and
Procedures
|
19 | |||
PART
II.
|
OTHER
INFORMATION
|
19 | |||
Item
1.
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Legal
Proceedings
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19 | |||
Item
1A.
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Risk
Factors
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19 | |||
Item
2.
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Unregistered
Sales of Equity Securities and Use of
Proceeds
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19 | |||
Item
3.
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Defaults
Upon Senior
Securities
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28 | |||
Item
4.
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Submissions
of Matters to a Vote of Security
Holders
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28 | |||
Item
5.
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Other
Information
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28 | |||
Item
6.
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Exhibits
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28 | |||
SIGNATURES
|
29 |
March
31,
2010
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December 31,
2009
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|||||||
(unaudited)
|
||||||||
Assets:
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$ | 688 | $ | 294 | ||||
Accounts
receivable, net of allowance for doubtful accounts of $16 and $13 at March
31, 2010 and December 31, 2009, respectively
|
812 | 1,027 | ||||||
Inventories
|
36 | 56 | ||||||
Prepaid
expenses and other current assets
|
193 | 300 | ||||||
Total
current assets
|
1,729 | 1,677 | ||||||
Property
and equipment, net
|
208 | 147 | ||||||
Other
assets
|
133 | 132 | ||||||
Total
assets
|
$ | 2,070 | $ | 1,9566 | ||||
Liabilities
and Stockholders’ Equity (Deficit):
|
||||||||
Current
liabilities:
|
||||||||
Line
of credit
|
$ | 1,100 | $ | 11,250 | ||||
Accounts
payable
|
698 | 807 | ||||||
Deferred
services revenue and customer deposits
|
1,635 | 2,008 | ||||||
Income
taxes payable
|
360 | 23 | ||||||
Accrued
liabilities and other
|
1,254 | 1,409 | ||||||
Total
current liabilities
|
5,047 | 15,497 | ||||||
Long-term
liabilities:
|
||||||||
Other
liabilities
|
73 | 73 | ||||||
Total
liabilities
|
5,120 | 15,570 | ||||||
Commitments
and contingencies (Note 9)
|
||||||||
Stockholders’
equity (deficit):
|
||||||||
Common
stock, $0.001 par value; 250,000,000 shares authorized at March 31, 2010
and December 31, 2009; 40,205,219 and 40,159,466 shares issued and
outstanding at March 31, 2010 and December 31, 2009,
respectively
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40 | 40 | ||||||
Less:
treasury common stock, 1,182,875 shares at March 31, 2010 and
December 31, 2009, at cost
|
(53 | ) | (53 | ) | ||||
Additional
paid-in-capital
|
102,839 | 102,504 | ||||||
Accumulated
deficit
|
(105,876 | ) | (116,105 | ) | ||||
Total
stockholders’ equity (deficit)
|
(3,050 | ) | (13,614 | ) | ||||
Total
liabilities and stockholders’ equity (deficit)
|
$ | 2,070 | $ | 1,956 |
Three
Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Revenue:
|
||||||||
Product
|
$ | 82 | $ | 1,347 | ||||
Licensing
and sale of patents
|
14,149 | 120 | ||||||
Services,
maintenance and support
|
545 | 1,163 | ||||||
Total
revenue
|
14,776 | 2,630 | ||||||
Costs
and expenses:
|
||||||||
Cost
of product revenues*
|
153 | 375 | ||||||
Cost
of services, maintenance and support revenues*
|
383 | 802 | ||||||
Income
from settlement and patent licensing
|
— | (1,057 | ) | |||||
Research
and development*
|
1,939 | 911 | ||||||
Sales
and marketing*
|
613 | 723 | ||||||
General
and administrative*
|
1,114 | 1,223 | ||||||
Total
costs and expenses
|
4,202 | 2,977 | ||||||
Income
(loss) from operations
|
10,574 | (347 | ) | |||||
Other
income (expense):
|
||||||||
Interest
income
|
1 | 6 | ||||||
Other
expense, net
|
(9 | ) | (132 | ) | ||||
Total
other income (expense), net
|
(8 | ) | (126 | ) | ||||
Income
(loss) before provision for (benefit from) income taxes
|
10,566 | (473 | ) | |||||
Provision
for (benefit from) income taxes
|
337 | (58 | ) | |||||
Net
income (loss)
|
$ | 10,229 | $ | (415 | ) | |||
Net
income (loss) per share – basic
|
$ | 0.26 | $ | (0.01 | ) | |||
Net
income (loss) per share –diluted
|
$ | 0.26 | $ | (0.01 | ) | |||
Weighted
average shares used in calculating basic net income (loss) per
share
|
39,008 | 34,698 | ||||||
Weighted
average shares used in calculating diluted net income (loss) per
share
|
39,297 | 34,698 | ||||||
*Including
stock based compensation of:
|
||||||||
Cost
of product, services, maintenance and support revenue
|
23 | 60 | ||||||
Research
and development
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101 | 167 | ||||||
Sales
and marketing
|
42 | 56 | ||||||
General
and administrative
|
153 | 199 |
Three Months Ended
March 31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Cash
Flows from Operating Activities:
|
||||||||
Net
income (loss)
|
$ | 10,229 | $ | (415 | ) | |||
Adjustments
to reconcile net income (loss) to net cash provided by (used in) operating
activities:
|
||||||||
Depreciation
|
50 | 59 | ||||||
Compensation
on equity awards issued to consultants and employees
|
319 | 482 | ||||||
Provision
for doubtful accounts
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3 | — | ||||||
Changes
in assets and liabilities:
|
||||||||
Accounts
receivable
|
212 | 1,394 | ||||||
Inventories
|
20 | 44 | ||||||
Prepaid
expenses and other current assets
|
107 | 62 | ||||||
Deferred
settlement and patent licensing costs
|
— | 318 | ||||||
Other
assets
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(1 | ) | — | |||||
Accounts
payable
|
(109 | ) | 114 | |||||
Deferred
income from settlement and patent licensing and other
|
— | (1,371 | ) | |||||
Deferred
services revenue and customer deposits
|
(373 | ) | (1,781 | ) | ||||
Income
taxes payable
|
337 | (58 | ) | |||||
Accrued
liabilities and other
|
(155 | ) | (11 | ) | ||||
Net
cash provided by (used in) operating activities
|
10,639 | (1,163 | ) | |||||
Cash
Flows from Investing Activities:
|
||||||||
Purchase
of property and equipment
|
(111 | ) | (20 | ) | ||||
Net
cash used in investing activities
|
(111 | ) | (20 | ) | ||||
Cash
Flows from Financing Activities:
|
||||||||
Line
of credit payments
|
(11,250 | ) | (3,900 | ) | ||||
Proceeds
from line of credit
|
1,100 | 500 | ||||||
Net
proceeds from issuance of common stock
|
16 | 160 | ||||||
Net
cash used in financing activities
|
(10,134 | ) | (3,240 | ) | ||||
Net
increase (decrease) in cash and cash equivalents
|
394 | (4,423 | ) | |||||
Cash
and cash equivalents, beginning of period
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294 | 4,898 | ||||||
Cash
and cash equivalents, end of period
|
$ | 688 | $ | 475 |
Three
Months Ended March 31,
|
||||||||
2010
|
2009
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|||||||
(Unaudited)
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||||||||
Customer
A
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74
|
%
|
—
|
|||||
Customer
B
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20
|
%
|
—
|
|||||
Customer
C
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*
|
%
|
40
|
%
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||||
Customer
D
|
*
|
%
|
14
|
%
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||||
Customer
E
|
*
|
%
|
12
|
%
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||||
Customer
F
|
*
|
%
|
12
|
%
|
Fair Value of
Financial Instruments
|
|
March
31,
2010
|
December 31,
2009
|
|||||||
(unaudited)
|
||||||||
Raw
materials and subassemblies
|
$ | — | $ | 1 | ||||
Finished
goods
|
36 | 55 | ||||||
Total
inventories
|
$ | 36 | $ | 56 |
·
|
Persuasive evidence of an
arrangement exists. The Company requires a written contract, signed
by both the customer and Avistar, or a purchase order from those customers
that have previously negotiated a standard end-user license arrangement or
volume purchase agreement, prior to recognizing revenue on an
arrangement.
|
·
|
Delivery has
occurred. The Company delivers software and hardware to
customers either electronically or physically and has no further
obligations with respect to the agreement. The standard delivery terms are
FOB shipping point.
|
·
|
The fee is fixed or
determinable. The Company’s determination that an arrangement fee
is fixed or determinable depends principally on the arrangement’s payment
terms. The Company’s standard terms generally require payment within 30 to
90 days of the date of invoice. Where these terms apply, the Company
regards the fee as fixed or determinable, and recognizes revenue upon
delivery (assuming other revenue recognition criteria are met). If the
payment terms do not meet this standard, but rather, involve “extended
payment terms,” the fee may not be considered to be fixed or determinable,
and the revenue would then be recognized when customer installments are
due and payable.
|
·
|
Collectibility is
probable. To recognize revenue, the Company judges collectibility
of the arrangement fees on a customer-by-customer basis pursuant to a
credit review policy. The Company typically sells to customers which have
had a history of successful collections. For new customers, the Company
evaluates the customer’s financial position and ability to pay. If the
Company determines that collectibility is not probable based upon the
credit review process or the customer’s payment history, revenue is
recognized when cash is collected.
|
|
Income
from Settlement and Patent
Licensing
|
Three Months Ended
March 31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Stock-based
compensation expense by type of award:
|
||||||||
Employee
stock options
|
$ | 234 | $ | 476 | ||||
Employee
restricted stock units
|
74 | — | ||||||
Non-employee
stock options
|
— | 1 | ||||||
Non-employee
restricted stock units
|
3 | — | ||||||
Employee
stock purchase plan
|
8 | 5 | ||||||
Total
stock-based compensation
|
319 | 482 | ||||||
Tax
effect of stock-based compensation
|
— | — | ||||||
Net
effect of stock-based compensation on net loss
|
$ | 319 | $ | 482 |
Three Months Ended
March 31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Employee Stock Option Plan
|
||||||||
Expected
dividend
|
— | % | — | % | ||||
Average
risk-free interest rate
|
2.1 | % | 1.4 | % | ||||
Expected
volatility
|
136 | % | 109 | % | ||||
Expected
term (years)
|
4.1 | 4.0 | ||||||
Employee Stock Purchase Plan
|
||||||||
Expected
dividend
|
— | % | — | % | ||||
Average
risk-free interest rate
|
0.2 | % | 0.4 | % | ||||
Expected
volatility
|
241 | % | 148 | % | ||||
Expected
term (months)
|
6.0 | 6.0 | ||||||
Number
of Shares
|
Weighted
Average Exercise price
|
Weighted
Average Remaining Contractual Life (years)
|
Aggregate
Intrinsic Value (thousands)
|
|||||||||||||
As
of March 31,2010
|
||||||||||||||||
Options
outstanding
|
11,060,618 | $ | 1.42 | 5.04 | $ | 37 | ||||||||||
Options
vested and expected to vest
|
10,388,917 | $ | 1.45 | 4.79 | $ | 33 | ||||||||||
Options
exercisable
|
7,712,071 | $ | 1.65 | 3.41 | $ | 17 |
Number
of Shares
|
Weighted
Average Remaining Contractual Life (years)
|
Aggregate
Intrinsic Value (thousands)
|
||||||||||
As
of March 31, 2010
|
||||||||||||
Restricted
stock units outstanding
|
1,680,000 | 1.66 | $ | 840 | ||||||||
Restricted
stock units vested and expected to vest
|
1,512,016 | 1.66 | $ | 756 |
|
Level
1 – Quoted prices in active markets for identical assets or
liabilities.
|
|
Level
2 – Inputs other than Level 1 that are observable, either directly or
indirectly, such as quoted prices for similar assets or liabilities;
quoted prices in markets that are not active; or other inputs that are
observable, or can be corroborated by observable market data for
substantially the full term of the assets or
liabilities.
|
|
Level
3 – Unobservable inputs that are supported by little or no market activity
and that are significant to the fair value of the assets or
liabilities.
|
Fair
Value
|
Level
1
|
Level
2
|
Level
3
|
|||||||||||||
Cash
Equivalents (unaudited):
|
||||||||||||||||
Money
market funds
|
$ | 5 | $ | 5 | $ | — | $ | — | ||||||||
Total
cash equivalents
|
$ | 5 | $ | 5 | $ | — | $ | — |
|
5.
Net Income (Loss) Per Share
|
Three Months Ended March
31,
|
||||||||
2010
|
2009
|
|||||||
(unaudited)
|
||||||||
Numerator:
|
||||||||
Net
income (loss) – basic and diluted
|
$ | 10,229 | $ | (415 | ) | |||
Denominator:
|
||||||||
Basic
weighted average shares outstanding
|
39,008 | 34,698 | ||||||
Add:
dilutive employee stock options
|
17 | — | ||||||
Add:
dilutive employee restricted stock units
|
272 | — | ||||||
Diluted
weighted average shares outstanding
|
39,297 | 34,698 | ||||||
Net
income (loss) per share – basic
|
$ | 0.26 | $ | (0.01 | ) | |||
Net
income (loss) per share - diluted
|
$ | 0.26 | $ | (0.01 | ) |
Intellectual
Property Division
|
Products
Division
|
Reconciliation
|
Total
|
|||||||||||||
Three
Months Ended March 31, 2010 (unaudited)
|
||||||||||||||||
Revenue
|
$ | 14,149 | $ | 627 | $ | — | $ | 14,776 | ||||||||
Depreciation
expense
|
— | (50 | ) | — | (50 | ) | ||||||||||
Stock-based
compensation
|
63 | 256 | — | 319 | ||||||||||||
Total
costs and expenses
|
802 | 3,400 | — | 4,202 | ||||||||||||
Interest
income
|
— | 1 | — | 1 | ||||||||||||
Interest
expense
|
— | (9 | ) | — | (9 | ) | ||||||||||
Net
income (loss)
|
13,347 | (3,118 | ) | — | 10,229 | |||||||||||
Assets
|
532 | 1,538 | — | 2,070 | ||||||||||||
Three
Months Ended March 31, 2009 (unaudited)
|
||||||||||||||||
Revenue
|
$ | 1,177 | $ | 2,510 | $ | (1,057 | ) | $ | 2,630 | |||||||
Depreciation
expense
|
— | (59 | ) | — | (59 | ) | ||||||||||
Stock-based
compensation
|
87 | 395 | — | 482 | ||||||||||||
Total
costs and expenses
|
(360 | ) | (3,674 | ) | 1,057 | (2,977 | ) | |||||||||
Interest
income
|
— | 6 | — | 6 | ||||||||||||
Interest
expense
|
— | (132 | ) | — | (132 | ) | ||||||||||
Net
income (loss)
|
817 | (1,232 | ) | — | (415 | ) | ||||||||||
Assets
|
1,394 | 2,119 | — | 3,513 |
|
|
Percentage
of Total Revenue
|
||||||||
Three
Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Revenue:
|
||||||||
Product
|
1 | % | 51 | % | ||||
Licensing
and sale of patents
|
96 | 5 | ||||||
Services,
maintenance and support
|
3 | 44 | ||||||
Total
revenue
|
100 | 100 | ||||||
Costs
and Expenses:
|
||||||||
Cost
of product revenues
|
1 | 14 | ||||||
Cost
of services, maintenance and support revenues
|
3 | 30 | ||||||
Income
from settlement and patent licensing
|
— | (40 | ) | |||||
Research
and development
|
13 | 35 | ||||||
Sales
and marketing
|
4 | 27 | ||||||
General
and administrative
|
8 | 47 | ||||||
Total
costs and expenses
|
29 | 113 | ||||||
Income
(loss) from operations
|
71 | (13 | ) | |||||
Other
income (expense):
|
||||||||
Other
expense, net
|
— | (5 | ) | |||||
Total
other income (expense), net
|
— | (5 | ) | |||||
Income
(loss) before provision for (benefit from) income taxes
|
71 | (18 | ) | |||||
Provision
for (benefit from) income taxes
|
2 | (2 | ) | |||||
Net
income (loss)
|
69 | % | (16 | )% |
|
Revenue
|
·
|
Product
revenue decreased by $1.3 million or 94%, to $82,000 for the three month
period ended March 31, 2010 from $1.3 million for the three months ended
March 31, 2009. This was primarily due to a decrease in software product
revenue recognized on our agreement with IBM, and lower software and
hardware product sales during the quarter ended March 31, 2010, compared
to the same period in 2009.
|
·
|
Licensing and patent sale
revenue, relating to the licensing and sale of our patent portfolio,
increased by $14.0 million, to $14.1 million for the three month period
ended March 31, 2010 from $120,000 for the three months ended March 31,
2009. This was due to the sale of substantially all of our
patents to Intellectual Ventures for $11.0 million and licensing revenue
from SKYPE for $3.0 million. As a result of the sale of substantially all
of our patent portfolio, we expect our efforts and expenditures on patent
prosecution, licensing and settlement activities in future periods to be
reduced.
|
·
|
Services,
maintenance and support revenue, which includes funded software
development and maintenance and support, decreased by $618,000, or 53%, to
$545,000 for the three months ended March 31, 2010, from $1.2 million for
the three months ended March 31, 2009. This was primarily due to a
decrease in service revenue from software implementation and enhancement
services and a decrease in revenue from maintenance contracts with
existing customers in the quarter ended March 31,
2010.
|
|
Costs
and expenses
|
|
Other
income (expense)
|
|
Provision
for (benefit from) income taxes
|
|
•
|
General
trends in the equities market, and/or trends in the technology
sector;
|
|
•
|
Quarterly
variations in our results of
operations;
|
|
•
|
Announcements
regarding our product developments;
|
|
•
|
The
size and timing of agreements to license our remaining and future patent
portfolio or enter into technology or distribution
partnerships;
|
|
•
|
Developments
in the examination of our patent applications by the U.S. Patent and
Trademark Office;
|
|
•
|
Announcements
of technological innovations or new products by us, our customers or
competitors;
|
|
•
|
Announcements
of competitive product introductions by our
competitors;
|
|
•
|
Limited
trading volume of shares; and,
|
|
•
|
Developments
or disputes concerning patents or proprietary rights, or other
events.
|
|
•
|
Transition
to Internet protocol connectivity for video at the desktop, with
increasing availability of bandwidth and quality of
service.
|
|
•
|
Obtain
from the owner of the infringed intellectual property a license to the
relevant intellectual property, which may require us to license our
intellectual property to such owner, or may not be available on reasonable
terms or at all; and
|
|
•
|
Timing,
cost and potential difficulty of adapting our system to the local language
standards in those foreign countries that do not use the English
language;
|
Exhibit Number
|
Description
|
||
10.1† |
Patent
License Agreement dated January 19, 2010 between Avistar Communications
Corporation and Springboard Group S.A.R.L.
|
||
10.2 |
Amendment
to Second Amended and Restated Revolving Credit Promissory Note issued by
Avistar Communications Corporation to JPMorgan Chase Bank, N.A. dated
February 22, 2010.
|
||
10.3 |
Reaffirmation
of Guaranty issued by Gerald J. Burnett and Marjorie J. Burnett Revocable
Trust in favor of JPMorgan Chase Bank, N.A. dated February 22,
2010.
|
||
31.1 |
Rule 13a-14(a)/15d-14(a)
Certification by the Chief Executive Officer.
|
||
31.2 |
Rule 13a-14(a)/15d-14(a)
Certification by the Chief Financial Officer.
|
||
32.1 |
Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
Portions
of the exhibit have been omitted pursuant to a request for confidential
treatment and the omitted portions have been separately filed with the
Commission.
|
|
|||
AVISTAR
COMMUNICATIONS CORPORATION |
|||
By:
|
/s/
Robert F.
Kirk
|
||
Robert
F. Kirk
|
|||
Chief
Executive Officer
|
|||
(Principal
Executive Officer)
|
|||
By:
|
/s/
Elias A.
MurrayMetzger
|
||
Elias
A. MurrayMetzger
|
|||
Chief
Financial Officer, Chief Administrative Officer and Corporate
Secretary
|
|||
(Principal
Financial and Accounting Officer)
|
|||
Exhibit Number
|
Description
|
||
10.1† |
Patent
License Agreement dated January 19, 2010 between Avistar Communications
Corporation and Springboard Group S.A.R.L.
|
||
10.2 |
Amendment
to Second Amended and Restated Revolving Credit Promissory Note issued by
Avistar Communications Corporation to JPMorgan Chase Bank, N.A. dated
February 22, 2010.
|
||
10.3 |
Reaffirmation
of Guaranty issued by Gerald J. Burnett and Marjorie J. Burnett Revocable
Trust in favor of JPMorgan Chase Bank, N.A. dated February 22,
2010.
|
||
31.1 |
Rule 13a-14(a)/15d-14(a)
Certification by the Chief Executive Officer.
|
||
31.2 |
Rule 13a-14(a)/15d-14(a)
Certification by the Chief Financial Officer.
|
||
32.1 |
Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
†
|
Portions
of the exhibit have been omitted pursuant to a request for confidential
treatment and the omitted portions have been separately filed with the
Commission.
|