PositiveID
POSITIVEID Corp (Form: 10-Q, Received: 11/12/2010 16:38:39)



UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

(Mark One)

þ

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934


For the quarterly period ended September 30, 2010

or


o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934


For the transition period from                       to                     


Commission File Number: 001-33297


POSITIVEID CORPORATION

(Exact name of registrant as specified in its charter)


DELAWARE

 

06-1637809

(State or other jurisdiction of incorporation or

 

(I.R.S. Employer Identification No.)

organization)

 

 


1690 South Congress Avenue, Suite 200

 

(561) 805-8008

Delray Beach, Florida 33445

 

(Registrant’s telephone number, including area code)

(Address of principal executive offices,

 

 

including zip code)

 

 


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 þ No o


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 (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o


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 definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.


Large accelerated filer o

 

Accelerated filer o

 

Non-accelerated filer o

 

Smaller reporting company þ

  

 

 

 

(Do not check if a smaller reporting company)

 

 


Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

Yes o No þ


The number of shares outstanding of each of the issuer’s classes of common stock as of the close of business on November 8, 2010 is as follows:


Class

 

Number of Shares

  

 

 

Common Stock: $0.01 Par Value

 

30,269,405



POSITIVEID CORPORATION


TABLE OF CONTENTS


PART I — CONDENSED FINANCIAL INFORMATION

1

 

 

Item 1. Financial Statements

1

 

 

Condensed Consolidated Balance Sheets — September 30, 2010 (unaudited) and December 31, 2009

1

 

 

Condensed Consolidated Statements Of Operations and Comprehensive Income —

Three and Nine Months Ended September 30, 2010 and 2009 — Unaudited

2

 

 

Condensed Consolidated Statement Of Stockholders’ Equity — Nine Months Ended September 30, 2010 — Unaudited

3

 

 

Condensed Consolidated Statements Of Cash Flows — Nine Months Ended September 30, 2010 and 2009 — Unaudited

4

 

 

Notes to Unaudited Condensed Consolidated Financial Statements

5

 

 

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

20

 

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

22

 

 

Item 3. Quantitative and Qualitative Disclosures About Market Risk

28

 

 

Item 4. Controls and Procedures

29

 

 

PART II — OTHER INFORMATION

30

 

 

Item 1. Legal Proceedings

30

Item 1A. Risk Factors

30

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

30

Item 5. Other Information

30

Item 6. Exhibits

31

 

 

SIGNATURE

32

 

 

Exhibit 10.1

 

Exhibit 10.2

 

Exhibit 31.1

 

Exhibit 31.2

 

Exhibit 32.1

 








PART I — FINANCIAL INFORMATION


Item 1.     Financial Statements.


POSITIVEID CORPORATION

Condensed Consolidated Balance Sheets

(In thousands, except share data and par value)


 

 

September 30,

 

 

December 31,

 

 

2010

 

 

2009

 

 

(Unaudited)

 

 

 

Assets

 

 

 

 

 

 

 

Current Assets:

 

 

 

 

 

 

 

Cash

 

$

3,301 

 

 

$

6,423 

Prepaid expenses and other current assets

 

 

292 

 

 

 

193 

 

 

 

 

 

 

Total Current Assets

 

 

3,593 

 

 

 

6,616 

 

 

 

 

 

 

Equipment, net of accumulated depreciation

 

 

126 

 

 

 

122 

Intangibles

 

 

518

 

 

 

— 

Other assets

 

 

31 

 

 

 

34 

Goodwill

 

 

2,450 

 

 

 

4,200 

 

 

 

 

 

 

 

 

$

6,718 

 

 

$

10,972 

 

 

 

 

 

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

 

 

Current Liabilities:

 

 

 

 

 

 

 

Accounts payable

 

$

818 

 

 

$

576 

Accrued expenses and other current liabilities

 

 

1,109 

 

 

 

775 

Accrued preferred stock dividend payable

 

 

­94 

 

 

 

90 

 

 

 

 

 

 

Total Current Liabilities

 

 

2,021 

 

 

 

1,441 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ Equity:

 

 

 

 

 

 

 

Preferred stock, authorized 5,000,000 shares of $.001 par value; 230 and nil Series B preferred shares issued and outstanding at September 30, 2010 and December 31, 2009, respectively (liquidation preference of $2,300 and nil at September 30, 2010 and December 31, 2009, respectively)

 

 

— 

 

 

 

— 

Common stock, authorized 70,000,000 shares of $.01 par value; issued and outstanding 30,269,405 and 21,840,433 shares at September 30, 2010 and December 31, 2009, respectively

 

 

302 

 

 

 

218 

Additional paid-in capital

 

 

72,702 

 

 

 

63,018 

Accumulated deficit

 

 

(65,202)

 

 

 

(53,705)

Notes receivable for shares issued

 

 

(3,105)

 

 

 

— 

 

 

 

 

 

 

Total Stockholders’ Equity

 

 

4,697 

 

 

 

9,531 

 

 

 

 

 

 

 

 

$

6,718 

 

 

$

10,972 

 

 

 

 

 

 




See accompanying notes to unaudited condensed consolidated financial statements.


1



POSITIVEID CORPORATION

Condensed Consolidated Statements of Operations and Comprehensive Income

(In thousands, except per share data)

(unaudited)


 

 

For the Three Months Ended

 

 

For the Nine Months Ended

 

 

 

September 30,

 

 

September 30,

 

 

 

2010

 

 

2009

 

 

2010

 

 

2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

972 

 

 

$

104

 

 

$

2,323 

 

 

$

161

 

Cost of goods sold

 

 

427 

 

 

 

35

 

 

 

853 

 

 

 

54

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross profit

 

 

545 

 

 

 

69

 

 

 

1,470 

 

 

 

107

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

 

4,156 

 

 

 

858

 

 

 

11,756 

 

 

 

3,162

 

Research and development

 

 

198 

 

 

 

 

 

 

1,229 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

 

4,354 

 

 

 

858

 

 

 

12,985 

 

 

 

3,162

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

 

(3,809)

 

 

 

(789

)

 

 

(11,515)

 

 

 

(3,055

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other income

 

 

21

 

 

 

31

 

 

 

18

 

 

 

55

 

Gain on sale of Xmark Corporation

 

 

— 

 

 

 

 

 

 

— 

 

 

 

4,385

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total other income

 

 

21

 

 

 

31

 

 

 

18

 

 

 

4,440

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

 

(3,788)

 

 

 

(758)

 

 

 

(11,497)

 

 

 

1,385

 

Preferred stock dividend

 

 

(58)

 

 

 

 

 

 

(94)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income attributable to common stockholders

 

$

(3,846)

 

 

 

(758)

 

 

$

(11,591)

 

 

 

1,385

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per common share — Basic

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income attributable to common stockholders per common share

 

$

(0.15)

 

 

$

(0.06)

 

 

$

(0.50)

 

 

$

0.11

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average number of shares outstanding

 

 

26,137 

 

 

 

12,344

 

 

 

23,292 

 

 

 

12,275

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per common share — Diluted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income  attributable to common stockholders per common share

 

$

(0.15)

 

 

$

(0.06)

 

 

$

(0.50)

 

 

$

0.11

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average number of shares outstanding

 

 

26,137 

 

 

 

12,344

 

 

 

23,292 

 

 

 

12,911

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

$

(3,788)

 

 

$

(758)

 

 

$

(11,497)

 

 

$

1,385

 

Other comprehensive income

 

 

— 

 

 

 

215

 

 

 

— 

 

 

 

238

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comprehensive (loss) income

 

$

(3,788)

 

 

$

(543)

 

 

$

(11,497)

 

 

$

1,623

 




See accompanying notes to unaudited condensed consolidated financial statements.


2



POSITIVEID CORPORATION

Condensed Consolidated Statement of Stockholders’ Equity

For the Nine Months Ended September 30, 2010

(In thousands)

(Unaudited)


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additional

 

 

 

 

 

 

Notes Receivable

 

 

Total

 

 

 

Preferred Shares

 

 

Common Shares

 

 

Paid-in

 

 

Accumulated

 

 

For

 

 

Stockholders’

 

 

 

Number

 

 

Amount

 

 

Number

 

 

Amount

 

 

Capital

 

 

Deficit

 

 

Shares Issued

 

 

Equity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance December 31, 2009

 

 

462

 

 

 

 

 

 

21,840

 

 

$

218

 

 

$

63,018

 

 

$

(53,705

)

 

$

 

 

$

9,531

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(11,497

)

 

 

 

 

 

(11,497

)

Share-based compensation

 

 

 

 

 

 

 

 

2,364

 

 

 

24

 

 

 

3,709

 

 

 

 

 

 

 

 

 

3,733

 

Issuance of shares from option exercises

 

 

 

 

 

 

 

 

719

 

 

 

7

 

 

 

352

 

 

 

 

 

 

 

 

 

359

 

Reversal of accrued dividend for Preferred Series A shares

 

 

 

 

 

 

 

 

 

 

 

 

 

 

89

 

 

 

 

 

 

 

 

 

89

 

Accrual of dividend for Preferred Series B shares

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(94

)

 

 

 

 

 

 

 

 

(94

)

Shares issued for Preferred Series A conversion

 

 

(462

 

 

 

 

 

2,700

 

 

 

27

 

 

 

(27

 

 

 

 

 

 

 

 

 

Shares issued in connection with interest expense on Preferred Series A conversion

 

 

 

 

 

 

 

 

29

 

 

 

 

 

 

35

 

 

 

0

 

 

 

 

 

 

35

 

Issuance of Preferred Series B shares, net of $110 for financing costs

 

 

230

 

 

 

 

 

 

 

 

 

 

 

 

2,190

 

 

 

 

 

 

 

 

 

2,190

 

Issuance of shares for note receivable

 

 

 

 

 

 

 

 

1,717

 

 

 

17

 

 

 

2,283

 

 

 

 

 

 

(2,300

 

 

 

Issuance of shares for note receivable upon warrant exercise

 

 

 

 

 

 

 

 

600

 

 

 

6

 

 

 

799

 

 

 

 

 

 

(805

 

 

 

Shares issued for the acquisition of Easy Check Medical Diagnostics, LLC assets

 

 

 

 

 

 

 

 

300

 

 

 

3

 

 

 

348

 

 

 

 

 

 

 

 

 

351

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance September 30, 2010

 

 

230

 

 

 

 

 

 

30,269

 

 

$

302

 

 

$

72,702

 

 

$

(65,202

)

 

$

(3,105

 

$

4,697

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




See accompanying notes to unaudited condensed consolidated financial statements.


3



POSITIVEID CORPORATION

Condensed Consolidated Statements of Cash Flows

(In thousands)

(unaudited)


 

 

For the Nine Months Ended

 

 

 

September 30,

 

 

 

2010

 

 

2009

 

 

 

 

 

 

 

 

 

 

Cash flows from operating activities:

 

 

 

 

 

 

 

 

Net loss

 

$

(11,497

)

 

$

1,385

 

Adjustments to reconcile net loss to net cash used in operating activities

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

1,256

 

 

 

21

 

Share-based compensation

 

 

3,733

 

 

 

511

 

Write-off of acquired in-process research and development

 

 

351

 

 

 

 

Gain on sale of Xmark Corporation

 

 

 

 

 

(4,385

)

Issuance of shares for settlement of litigation

 

 

 

 

 

250

 

Non cash interest income

 

 

(26

 

 

(37

)

Non cash interest expense

 

 

35

 

 

 

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

 

Increase in prepaid expenses and other current assets

 

 

(71

)

 

 

(41

)

Increase (decrease) in accounts payable and accrued expenses

 

 

576

 

 

 

(302

Net cash used in discontinued operations

 

 

 

 

 

(60

)

 

 

 

 

 

 

 

Net cash used in operating activities

 

 

(5,643

)

 

 

(2,658

)

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

 

 

 

 

Purchase of equipment

 

 

(28

)

 

 

(7

)

Sale of Xmark Corporation

 

 

 

 

 

4,434

 

Investment in note receivable

 

 

 

 

 

(500

)

 

 

 

 

 

 

 

Net cash (used in) provided by investing activities

 

 

(28

)

 

 

3,927

 

 

 

 

 

 

 

 

Cash flows from financing activities:

 

 

 

 

 

 

 

 

Equity financing, net of fees

 

 

2,190

 

 

 

 

Proceeds from exercise of stock options

 

 

359

 

 

 

 

 

 

 

 

 

 

 

Net cash provided by financing activities

 

 

2,549

 

 

 

 

 

 

 

 

 

 

 

Net (decrease) increase in cash

 

 

(3,122

)

 

 

1,269

 

Cash, beginning of period

 

 

6,423

 

 

 

3,229

 

 

 

 

 

 

 

 

Cash, end of period

 

$

3,301

 

 

$

4,498

 

 

 

 

 

 

 

 




See accompanying notes to unaudited condensed consolidated financial statements.


4



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


1. Business and Basis of Presentation

PositiveID Corporation (the “Company”) is a Delaware corporation formed in November 2001. The Company commenced operations in January 2002 as VeriChip Corporation.  In February 2007, the Company completed an initial public offering of its common stock, selling 3,100,000 shares of its common stock at a price of $6.50 per share.

The Company has historically developed, marketed and sold radio frequency identification, frequently referred to as RFID, systems used for the identification of people in the healthcare market. Beginning in the fourth quarter of 2009, with the acquisition of Steel Vault Corporation (“Steel Vault”), the Company is pursuing its strategy to provide unique health and security identification tools to protect consumers and businesses, operating in two key segments: HealthID and ID Security.

HealthID Segment

Our HealthID segment is currently focused on the development of four products: (1) the GlucoChip, a glucose-sensing microchip, based on our proprietary intellectual property which is being developed in conjunction with Receptors LLC (“Receptors”), (2) iGlucose TM , a stand-alone, self-contained unit that automatically queries a diabetic user’s date-capable glucometer for blood glucose data and sends that data via encrypted SMS text messaging to the iGlucose online database, (3) Easy Check TM , a non-invasive breath glucose detection system, based on the correlation of acetone in exhaled breath to blood glucose levels, and (4) the rapid flu detection system, also being developed in conjunction with Receptors.

Our HealthID segment also includes the VeriMed system, which uses an implantable passive RFID microchip (the “VeriChip”) that is used in patient identification applications. Each implantable microchip contains a unique verification number that is read when it is scanned by our scanner. In October 2004, the U.S. Food and Drug Administration ("FDA") cleared our VeriMed system for use in medical applications in the United States.

HealthID Segment – Recent Developments

In July 2010, we announced the completion of the design of our prototype handheld Easy Check Breath Glucose Detection Device and plan to complete the development of the prototype unit by the end of 2010. The small unit, measuring approximately 5.5 inches by 4.5 inches, utilizes a single-use capsule containing a proprietary reagent that triggers a chemical reaction that can be immediately measured and correlated to blood glucose levels.

In August 2010, we filed a provisional patent application with the U.S. Patent and Trademark Office for an insulin pen tracking and recording device. The Insulin Tracker, a microprocessor-controlled device that slides onto standard insulin pens, enables diabetes patients to automatically track and record the amount of insulin they inject, including the time and date of each injection. The data is communicated from the Insulin Tracker's memory, along with the patient's blood glucose readings from their glucometer, to the iGlucose database. The combined data provides a more complete record of blood glucose measurements, treatments and overall diabetes management and allows patients, caregivers and physicians to monitor compliance.

In September 2010, we announced that we initiated a research study with the Diabetes Research Institute ("DRI") at the University of Miami for our glucose-sensing microchip. The study will examine the biocompatibility and functionality of a semi-permeable membrane to be used in our GlucoChip. The study is the next step in our  development, which will run in parallel to our continued laboratory testing of the glucose sensor in blood and interstitial fluid.

ID Security Segment

Our ID Security segment includes our Identity Security suite of products, sold through our NationalCreditReport.com brand and our Health Link personal health record (“PHR”) business. Our NationalCreditReport.com business was acquired in conjunction with its merger with Steel Vault in November 2009. NationalCreditReport.com offers consumers a variety of identity security products and services primarily on a subscription basis. These services help consumers protect themselves against identity theft or fraud and understand and monitor their credit profiles and other personal information, which include credit reports, credit monitoring and credit scores. In the first quarter of 2010, the company re-launched its Health Link PHR business. The Company plans to focus its marketing efforts on partnering with health care providers and exchanges, physicians group, Electronic Medical Record (“EMR) system vendors, and insurers to use Health Link as PHR provided to their patients. The Company will also seek to partner with pharmaceutical companies who wish to communicate with its online community through various forms of value added content and advertising.

In September 2010, we agreed to sell our Health Link personal health record business for $1 million to Health Plexus, LLC. In November 2010, we made the decision to terminate those discussions.

We continue to focus on our HealthID and ID Security businesses, including the development of the GlucoChip, the Easy Check breath glucose detection system, the iGlucose wireless communication system, the rapid flu detection system and our operating business in identity security. We intend to continue to explore potential strategic transactions with third parties in the healthcare, identification, animal health, and other sectors.



5



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


The accompanying unaudited condensed consolidated financial statements of the Company and its subsidiaries as of September 30, 2010 and December 31, 2009 (the December 31, 2009 financial information included in this report has been extracted from the Company’s audited financial statements included in its Annual Report on Form 10-K for the year ended December 31, 2009), and for the three and nine months ended September 30, 2010 and 2009 have been prepared in accordance with United States (“U.S.”) generally accepted accounting principles (“GAAP”) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X under the Securities Exchange Act of 1934. Accordingly, they do not include all of the information and footnotes required by GAAP for complete financial statements. In the opinion of the Company’s management, all adjustments (including normal recurring adjustments) considered necessary to present fairly the unaudited condensed consolidated financial statements have been made.

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of sales and expenses during the reporting period. Actual results could differ from those estimates. Included in these estimates are assumptions about lives of long lived assets, lives of intangible assets, assumptions used in Black-Scholes valuation models, estimates of the fair value of acquired assets and assumed liabilities, the determination of whether any impairment is to be recognized on goodwill or intangibles, among others.   

The unaudited condensed consolidated statements of operations for the three and nine months ended September 30, 2010 are not necessarily indicative of the results that may be expected for the entire year. These statements should be read in conjunction with the consolidated financial statements and related notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

Revenue Recognition

The Company’s revenue recognition policy is as follows:

Product Sales

Revenue from product sales are recorded at gross amounts. As the Company is in the initial process of commercializing these systems, the level of distributor or physician returns cannot yet be reasonably estimated. Accordingly, the Company does not recognize revenues until the following criteria are met:

·

a purchase order has been received or a contract has been executed;

·

the product is shipped;

·

title has transferred;

·

the price is fixed or determinable;

·

there are no uncertainties regarding customer acceptance;

·

collection of the sales proceeds is reasonably assured; and

·

the period during which the distributor or physician has a right to return the product has elapsed.

The Company intends to recognize revenue from consignment sales, if any, when all of the criteria listed above have been met and after the receipt of notification of such product sales from the distributor’s customers (e.g., physicians). Once the level of returns can be reasonably estimated, sales, net of expected returns, will be recognized when all of the criteria above are met for either direct or consignment sales.

Data Subscription Services

The services for maintaining subscriber information on the Company’s Health Link and VeriMed databases are sold on a stand-alone contract basis, and treated according to the terms of the contractual arrangements then in effect. Revenue from the database service will be recognized over the term of the subscription period or the terms of the contractual arrangements then in effect.

With respect to the sales of products whose functionality is dependent on services (e.g., database records maintenance), the revenue recognition policy will follow the ultimate arrangements.

ID Security Services

Revenue is recognized when persuasive evidence of an arrangement exists, collectability of arrangement consideration is reasonably assured, the arrangement fees are fixed or determinable and delivery of the product or service has been completed. A significant portion of the Company’s revenue is derived from the Company’s processing of transactions related to the provision of information services to customers, in which case revenue is recognized, assuming all other revenue recognition criteria are met, when the services are provided. Another portion of the Company’s revenues relate substantially to monthly subscription fee-based credit monitoring contracts under which a customer pays a preset fee for a predetermined or unlimited number of transactions or services provided during the subscription period. Revenue related to subscription fee-based contracts having an unlimited volume is recognized ratably during the contract term.



6



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


If at the outset of an arrangement, the Company determines that collectability is not reasonably assured, revenue is deferred until the earlier of when collectability becomes probable or the receipt of payment. If there is uncertainty as to the customer’s acceptance of the Company’s deliverables, revenue is not recognized until the earlier of receipt of customer acceptance or expiration of the acceptance period. If at the outset of an arrangement, the Company determines that the arrangement fee is not fixed or determinable, revenue is deferred until the arrangement fee becomes estimable, assuming all other revenue recognition criteria have been met.

In October 2009, the Financial Accounting Standard Board (“FASB”) issued amended revenue recognition guidance for arrangements with multiple deliverables. The new guidance requires the use of management’s best estimate of selling price (BESP) for the deliverables in an arrangement when vendor specific objective evidence (VSOE), vendor objective evidence (VOE) or third party evidence (TPE) of the selling price is not available. In addition, excluding specific software revenue guidance, the residual method of allocating arrangement consideration is no longer permitted, and an entity is required to allocate arrangement consideration using the relative selling price method. In accordance with the guidance, the Company has elected to early adopt its provisions as of January 1, 2010 on a prospective basis for all new or materially modified arrangements entered into on or after that date. The adoption of this guidance did not have a material impact on the condensed consolidated financial statements.

As discussed above, effective January 1, 2010 the Company adopted, on a prospective basis for all new or materially modified arrangements entered into on or after that date, the amended accounting guidance for multiple-deliverable revenue arrangements and the amended guidance related to the scope of existing software revenue recognition guidance. The amended guidance does not generally change the units of accounting for the Company’s revenue transactions. Most of the Company’s products and services qualify as separate units of accounting.

To the extent the Company sells products that may consist of multiple deliverables the revenue recognition is subject to specific guidance. A multiple-deliverable arrangement is separated into more than one unit of accounting if the following criteria are met:

·

The delivered item(s) has value to the client on a stand-alone basis; and

·

If the arrangement includes a general right of return relative to the delivered item(s), delivery or performance of the undelivered item(s) is considered probable and substantially in the Company’s control.

If these criteria are not met, the arrangement is accounted for as one unit of accounting which would result in revenue being recognized ratably over the contract term or being deferred until the earlier of when such criteria are met or when the last undelivered element is delivered. If these criteria are met for each element and there is a relative selling price for all units of accounting in an arrangement, the arrangement consideration is allocated to the separate units of accounting based on each unit’s relative selling price.

Deferred revenue consists of amounts billed in excess of revenue recognized on sales of information services, relating generally to subscription fees.

Share-Based Compensation

Share-based compensation expenses are reflected in the Company’s consolidated statement of operations under selling, general and administrative expenses and research and development expenses.

The Company’s computation of expected life is determined based on the simplified method. The interest rate is based on the U.S. Treasury Yield curve in effect at the time of grant. The Company’s computation of expected volatility is based on the Company’s historical volatility and the average historical volatility of comparable companies.

Research and Development

Research and development costs are expensed as incurred and consist of development work associated with the Company’s existing and potential products. The Company’s research and development expenses relate primarily to share-based compensation to its project partner, Receptors, payroll costs for engineering personnel and costs associated with various projects, including testing, developing prototypes and related expenses.

Liquidity and Capital Resources

As of September 30, 2010, we had working capital of approximately $1.6 million and an accumulated deficit of $65.2 million.  During the nine months ended September 30, 2010, we used $5.6 million to fund operating activities, primarily to fund operating losses incurred in support of our HealthID products under development.



7



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


Until we are able to achieve operating profits, it is our intention to continue to access capital markets to fund the development of our HealthID products.  Specifically, we have a $4.2 million financing agreement in place with Socius under which we have issued $2.3 million of Series B preferred stock, leaving us with $1.9 million of current capacity under that agreement.  Additionally, we currently have an effective “shelf” registration statement on Form S-3 which registers up to $9.6 million of securities.  Because we are a small cap issuer we will be limited from time to time in our ability to use capacity under the shelf registration statement.

The Company believes that with its current working capital, its access to capital under the Socius financing agreement, and through either new capital raised under its shelf registration statement and/or by limiting its activities, reducing or delaying certain discretionary research, development and related activities, that it will have sufficient funds available to meet its working capital requirements over the next twelve months.   There can be no assurances that it will be successful in negotiating additional sources of equity or credit for its long-term capital needs.  The Company’s inability to have continuous access to such financing at reasonable costs could materially and adversely impact its financial condition, results of operations and cash flows.

Loss Per Common Share and Common Share Equivalent

The Company presents basic income (loss) per common share and, if applicable, diluted income (loss) per share, pursuant to the provisions of ASC 260 “Earnings Per Share.” Basic income (loss) per common share is based on the weighted average number of common shares outstanding in each period and after preferred stock dividend requirements. The calculation of diluted income (loss) per common share assumes that any dilutive convertible preferred shares outstanding at the beginning of each period or the date issued were convertible at those dates, with preferred stock dividend requirements and outstanding common shares adjusted accordingly. It also assumes that outstanding common shares were increased by shares issuable upon exercise of those stock options and warrants for which average period market price exceeds exercise price, less shares that could have been purchased by the Company with related proceeds.

The following were outstanding as of September 30, 2010 and 2009, and were not included in the computation of dilutive loss per share because the net effect would have been anti-dilutive:


 

 

For the Nine Months Ended

 

 

September 30,

 

 

2010

 

 

2009

 

 

 

 

 

 

 

 

Stock options

 

 

3,541

 

 

 

Restricted common stock

 

 

3,995

 

 

 

Warrants

 

 

454

 

 

 

 

 

 

 

 

 

 

 

 

7,990

 

 

 

 

 

 

 

 

 


Impact of Recently Issued Accounting Standards

In January 2010, the Financial Accounting Standard Board (“FASB”) issued Accounting Standards Update (“ASU”) 2010-06, Improving Disclosures about Fair Value Measurements. The ASU requires disclosing the amounts of significant transfers in and out of Level 1 and 2 fair value measurements and to describe the reasons for the transfers. The disclosures are effective for reporting periods beginning after December 15, 2009. Additionally, disclosures of the gross purchases, sales, issuances and settlements activity in Level 3 fair value measurements will be required for fiscal years beginning after December 15, 2010.  We have evaluated the potential impact of this standard and expect it will have no significant impact on our financial position or results of operations.

In January 2010, the FASB issued ASU 2010-01, Equity (Topic 505): Accounting for Distributions to Shareholders with Components of Stock and Cash (A Consensus of the FASB Emerging Issues Task Force). This amendment to Topic 505 clarifies that the stock portion of a distribution to shareholders that allows them to elect to receive cash or stock with a limit on the amount of cash that will be distributed is not a stock dividend for purposes of applying Topics 505 and 260. ASU 2010-01 is effective for interim and annual periods ending on or after December 15, 2009, and would be applied on a retrospective basis. The adoption of the provisions of ASU 2010-01 did not have a material effect on the financial position, results of operations or cash flows of the Company.

In April 2010, the FASB issued ASU No. 2010 - 17 – Revenue Recognition - Milestone Method (Topic 605): Milestone Method of Revenue Recognition . This standard provides guidance on defining a milestone and determining when it may be appropriate to apply the milestone method of revenue recognition for certain research and development transactions. Under this new standard, a company can recognize as revenue consideration that is contingent upon achievement of a milestone in the period in which it is achieved, only if the milestone meets all criteria to be considered substantive.  This standard will be effective for us on a prospective basis for periods beginning after January 1, 2011.  We have evaluated the potential impact of this standard and expect it will have no significant impact on our financial position or results of operations.



8



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


2. Principles of Consolidation

The financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant inter-company transactions and balances have been eliminated in consolidation.

3. Acquisitions

Merger with Steel Vault

On September 4, 2009, the Company, VeriChip Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Company (the “Acquisition Subsidiary”), and Steel Vault signed an Agreement and Plan of Reorganization (the “Merger Agreement”), as amended, pursuant to which the Acquisition Subsidiary was merged with and into Steel Vault on November 10, 2009, with Steel Vault surviving and becoming a wholly-owned subsidiary of the Company (the “Merger”). The Merger Agreement provided for the Company’s conversion of each outstanding share of Steel Vault’s common stock into 0.5 shares of common stock of the Company. At the time the Merger Agreement was signed, in September 2009, the value of the transaction was measured at $3.5 million.  At the time the Merger was consummated, the stock price of the Company was $1.71 per share as compared to $0.65

during September 2009 when the Merger Agreement was executed. As a result, at the time the transaction closed, in November 2009, the value of the transaction amounted to $13.7 million as compared to approximately $3.5 million at the time the Merger Agreement was signed in September 2009. The purchase price includes Steel Vault’s approximately 6,696,000 stock options and 908,000 warrants outstanding which were converted into 3,349,000 options and 454,000 warrants to acquire shares of the Company’s common stock at the effective exchange date rate, and which were measured at the fair value using the Black-Scholes model on the date the transaction closed.

Based on an assessment underlying the preliminary purchase price allocation the Company performed as of December 31, 2009, the determination was made that the estimated fair value of Steel Vault was approximately $3.5 million as of December 31, 2009. Accordingly, the Company recognized a charge attributable to the reduced carrying amount of goodwill by approximately $10.2 million. The total purchase price of the business acquired was allocated based on a final valuation as follows:


Cash

 

$

72

 

Equipment and other assets

 

 

142

 

Trademarks and domain names

 

 

500

 

Subscriber base

 

 

1,250

 

Goodwill

 

 

2,450

 

Current liabilities

 

 

(910

)

 

 

 

 

Total

 

 

3,504

 

Charge attributable to adjustment of goodwill

 

 

10,170

 

 

 

 

 

Total price paid

 

$

13,674

 

 

 

 

 


The primary reasons the purchase price of the acquisition exceeded the fair value of the net assets acquired, which resulted in the recognition of goodwill of $2.5 million at the time the agreement was executed, were to provide entry into the industry and growth opportunities from new or enhanced product offerings and the acquisition of the existing workforce that are not recognized as assets apart from goodwill. In addition, the Company identified intangible assets for trademarks and domain names of $500,000 with a life of 5 years, and a subscriber base of $1,250,000 with a life of 12 months. Amortization expense of $347,000 and $1.2 million was recorded for the three and nine months ended September 30, 2010, respectively, associated with the intangible assets.

Easy Check Asset Purchase

On February 11, 2010, the Company purchased the assets of Easy Check Medical Diagnostics, LLC, which was comprised of the intellectual property related to the Easy Check breath analysis system and the iGlucose TM wireless communication system. The Company issued 300,000 shares of common stock in connection with the purchase with a fair value of $351,000 based on a stock price of $1.17. The entire purchase price was expensed as in-process research and development as the development of these projects had not yet reached technological feasibility and had no alternative future uses.  We did not purchase any tangible assets from Easy Check Medical Diagnostics, LLC.

Proforma

The results of Steel Vault have been included in the condensed consolidated statements of operations since the date of acquisition. Unaudited pro forma results of operations for the three and nine months ended September 30, 2009 are included below. Such pro forma information assumes that the Steel Vault acquisition occurred as of January 1, 2009, and revenue is presented in accordance with the Company’s accounting policies. This summary is not necessarily indicative of what the Company’s results of operations would have been had the Company and Steel Vault been combined entities during such period, nor does it purport to represent results of operations for any future periods.



9



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


 

 

Three Months Ended

 

Nine Months Ended

 

(In thousands, except per share amounts)

 

September 30, 2009

 

September 30, 2009

 

 

 

 

 

 

 

 

Revenue

 

$

740

$

1,215

 

Net income (loss) attributable to common shareholders

 

$

(1,716)

$

(2,740

)

Net income (loss) attributable to common shareholders
per common share — basic and diluted

 

$

(0.10)

$

(0.16

)


4. Financing Agreements

Optimus

On September 29, 2009, the Company entered into a Convertible Preferred Stock Purchase Agreement (the “Purchase Agreement”) with Optimus Capital Partners LLC doing business as Optimus Technology Capital Partners, LLC ("Optimus") under which Optimus was committed to purchase up to $10 million of convertible Preferred Stock in one or more tranches. Under the terms of the Purchase Agreement, from time to time and at the Company’s sole discretion, the Company could have presented Optimus with a notice to purchase such Preferred Stock (the “Notice”).

To facilitate the transactions contemplated by the Purchase Agreement, R & R Consulting Partners, LLC (“R & R”), a company controlled by Scott R. Silverman, the Company’s chairman and chief executive officer, loaned shares of common stock to Optimus equal to 135% of the aggregate purchase price for each tranche pursuant to Stock Loan Agreements between R & R and Optimus. R & R was paid a $100,000 fee in October 2009 plus will be paid 2% interest for the fair value of the loaned shares for entering into the stock loan arrangement. The aggregate amount of shares loaned under any and all Stock Loan Agreements, together with all other shares sold by or on behalf of the Company, cannot exceed one-third of the aggregate market value of the voting and non-voting common equity held by non-affiliates of the Company in any 12 month period. R & R could demand return of some or all of the borrowed shares (or an equal number of freely tradable shares of common stock) at any time on or after the six-month anniversary date such borrowed shares were loaned to Optimus, but no such demand could be made if there were any shares of Preferred Stock then outstanding. If a permitted return demand was made, Optimus would return the borrowed shares within three trading days after such demand (or an equal number of freely tradable shares of common stock). Optimus could return the borrowed shares in whole or in part, at any time or from time to time, without penalty or premium. On September 29, 2009, October 8, 2009, and October 21, 2009, R & R loaned Optimus 1.3 million, 800,000 and 600,000 shares, respectively, of Company common stock.  

Optimus is obligated to purchase such Preferred Stock on the tenth trading day after any Notice date, subject to satisfaction of certain closing conditions, including (i) that the Company is listed for and trading on a trading market, (ii) the representations and warranties of the Company set forth in the Purchase Agreement are true and correct as if made on each tranche date, (iii) Optimus shall have received a commitment fee of $800,000 payable only on the first tranche closing date in the event the gross proceeds from the first tranche closing exceed $800,000 and (iv) that no such purchase would result in Optimus and its affiliates beneficially owning more than 9.99% of the Company’s common stock. In the event the closing bid price of the Company’s common stock during any one or more of the nine trading days following the delivery of a Notice falls below 75% of the closing bid price on the trading day prior to the Notice date and Optimus determines not to complete the tranche closing, then the Company may, at its option, proceed to issue some or all of the applicable shares, provided that the conversion price for the Preferred Stock that is issued shall reset at the lowest closing bid price for such nine trading day period.

On September 29, 2009, the Company exercised the first tranche of this financing, to issue 296 shares of Preferred Stock, for a tranche amount of approximately $3.0 million at a conversion price of $3.07 per share of common stock. In support of this tranche, R & R loaned Optimus 1.3 million shares of common stock. This tranche closed on October 13, 2009, and the Company received proceeds of approximately $3.0 million, less the fees due on the entire financing commitment of $800,000. On November 5, 2009, the Company closed the second tranche of this financing, issuing 166 shares of Preferred Stock, for a tranche amount of approximately $1.7 million at a conversion price of $1.60 per share of common stock. In support of this tranche, R & R loaned Optimus approximately 1.4 million shares of common stock. There was no beneficial conversion feature on the Preferred Stock as the stock prices were greater than the conversion prices on the dates of issuance.

On May 12, 2010, R & R demanded the return of the 2.7 million shares loaned to Optimus. On May 13, 2010, the Company converted all of the outstanding shares of Preferred Stock into 2,729,452 shares of Company common stock, which amount included the make-whole shares.  Optimus, in turn, returned these shares to R & R in repayment of the loan. Accrued dividends through the date of conversion were adjusted through additional paid-in capital as the anniversary date requiring issuance of additional shares was not reached.



10



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


Socius Financing

On April 28, 2010, the Company entered into a Preferred Stock Purchase Agreement (the “Preferred Purchase Agreement”) with Socius Capital Group, LLC doing business as Socius Technology Capital Group, LLC (“Socius Technology”) under which Socius Technology is committed to purchase up to $4.2 million in shares of non-convertible Series B Preferred Stock of the Company (the “Preferred Stock”) in one or more tranches (each a “Preferred Tranche”), at $10,000 per share of Preferred Stock. Under the terms of the Preferred Purchase Agreement, from time to time and at the Company’s sole discretion, the Company may present Socius Technology with a notice to purchase such Preferred Stock (the “Preferred Notice”). Socius Technology is obligated to purchase such Preferred Stock on the third trading day after the Preferred Notice date, subject to satisfaction of certain closing conditions, including (i) that the Company’s common stock is listed for and trading on a trading market, (ii) the representations and warranties of the Company set forth in the Preferred Purchase Agreement are true and correct as if made on each Preferred Tranche date, and (iii) Socius Technology shall have received a commitment fee of $105,000 payable on the first tranche closing date (collectively, the “Closing Conditions”).

Commencing on the date of issuance of any such shares of Preferred Stock, holders of Preferred Stock were entitled to receive dividends on each outstanding share of Preferred Stock, which accrues in shares of Preferred Stock at a rate equal to 10% per annum from the date of issuance. Accrued dividends shall be payable upon redemption of the Preferred Stock. As of September 30, 2010, the Company had accrued dividends of $94,000.

Stock Purchase Agreement

On April 28, 2010, the Company entered into a Stock Purchase Agreement (the “Agreement”) with Socius CG II, Ltd., a Bermuda exempted company (“Socius”) under which Socius is committed to purchase in connection with any Preferred Tranche, up to that number of shares of common stock equal in dollar amount to 100% of the applicable Preferred Tranche amount (the “Common Tranche”), at a per share price equal to the average of the individual daily volume weighted average price calculated over the ten trading days preceding the applicable tranche notice of the common stock on the date the Company provides notice of such tranche (the “Investment Price”). Under the Agreement, the Company has also agreed to issue in connection with any Common Tranche, two-year warrants to purchase shares of common stock equal in dollar amount to 35% of the applicable Common Tranche, at an exercise price per share equal to the Investment Price.

Socius may pay the Investment Price for the common stock, at Socius’ option, in cash or a secured promissory note. Socius may pay the warrant exercise price, at Socius’ option, in cash, a secured promissory note, or, if applicable, by cashless exercise. The promissory note bears interest at 2.0% per year calculated on a simple interest basis. The entire principal balance and interest thereon is due and payable on the fourth anniversary of the date of the promissory note, but no payments are due so long as the Company is in default under the Preferred Purchase Agreement or the warrants or if there are any shares of Preferred Stock issued or outstanding. The promissory note is secured by the borrower’s right, title and interest in all outstanding shares of the Company’s common stock and other securities with a fair market value equal to the principal amount of the promissory note. The Company’s right to deliver a tranche notice to Socius pursuant to the Agreement is subject to the Closing Conditions and also that no purchase would result in Socius and its affiliates beneficially owning more than 9.99% of the common stock. Unless the Company obtains stockholder approval or Socius obtains an opinion of counsel that stockholder approval is not required, Socius may not exercise a warrant if, as a result of such exercise, the aggregate number of shares of common stock issued upon exercise of all warrants it holds plus the aggregate number of shares of common stock issued under the Agreement would exceed 19.99% of the Company’s common stock outstanding. If at any time, upon the exercise of all warrants issued to Socius, Socius holds more than 19.99% of the Company’s outstanding common stock, the Company will be required to obtain stockholder approval of the transactions with Socius.

Certificate of Designations

On April 28, 2010, the Company filed a Certificate of Designations of Preferences, Rights and Limitations of Series B Preferred Stock (the “Certificate of Designations”) with the Secretary of State of the State of Delaware. A summary of the Certificate of Designations is set forth below:

Ranking and Voting. The Preferred Stock ranks, with respect to rights upon liquidation, winding-up or dissolution, (i) senior to the Company’s Common Stock, and any other classes of stock or series of preferred stock of the Company except as set forth in clause (ii), and (ii) junior to the Company’s Series A Preferred Stock and all existing and future indebtedness of the Company. Holders of the Preferred Stock will not have rights to vote on any matters, questions or proceedings, including, without limitation, the election of directors.

Conversion. The Preferred Stock is not convertible into Common Stock.



11



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


Dividends and Other Distributions. Commencing on the date of issuance of any such shares of Preferred Stock, holders of Preferred Stock shall be entitled to receive dividends on each outstanding share of Preferred Stock, which shall accrue in shares of Preferred Stock at a rate equal to 10% per annum from the date of issuance. Accrued dividends shall be payable upon redemption of the Preferred Stock. However, so long as any shares of Series A Preferred Stock are outstanding, no dividends or other distributions may be paid, declared or set apart with respect to the Preferred Stock.

Liquidation. Upon any liquidation, dissolution or winding up of the Company after payment or provision for payment of debts and other liabilities of the Company and any liquidation preferences to the senior securities, before any distribution or payment is made to the holders of any junior securities, the holders of Preferred Stock shall first be entitled to be paid out of the assets of the Company available for distribution to its stockholders an amount with respect to the Series B Liquidation Value, as defined below, after which any remaining assets of the Company shall be distributed among the holders of the other class or series of stock in accordance with the Company’s Certificates of Designations and Certificate of Incorporation.

Redemption . The Company may redeem, for cash or by an offset against any outstanding note payable from Socius to the Company that was issued by Socius, any or all of the Preferred Stock at any time at the redemption price per share equal to $10,000 per share of Preferred Stock (the “Series B Liquidation Value”), plus any accrued but unpaid dividends with respect to such shares of Preferred Stock (the “Redemption Price”). If the Company exercises this redemption option with respect to any Preferred Stock prior to the fourth anniversary of the issuance of such Preferred Stock, then in addition to the Redemption Price, the Company must pay to Socius a make-whole price per share equal to the following with respect to such redeemed Preferred Stock: (i) 35% of the Series B Liquidation Value if redeemed prior to the first anniversary of the issuance date, (ii) 27% of the Series B Liquidation Value if redeemed on or after the first anniversary but prior to the second anniversary of the issuance date, (iii) 18% of the Series B Liquidation Value if redeemed on or after the second anniversary but prior to the third anniversary of the issuance date, and (iv) 9% of the Series B Liquidation Value if redeemed on or after the third anniversary but prior to the fourth anniversary of the issuance date.

The Preferred Stock will not be or has not been registered under the Securities Act of 1933 and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.

Tranche Draw Down

On April 29, 2010, the Company presented Socius Technology with a Preferred Notice to purchase $2.3 million of Preferred Stock in a Preferred Tranche. Upon the closing of the Preferred Tranche, which occurred on May 4, 2010, the Company issued 230 shares of Preferred Stock. In connection with the Preferred Notice, the Company also presented Socius with a notice to purchase $2.3 million of common stock and warrants to purchase 600,746 shares of common stock. The Company issued 1,716,417 shares of common stock at an Investment Price per share of $1.34, paid in the form a secured promissory note, and a warrant to purchase 600,746 shares of common stock to Socius, at an exercise price equal to the Investment Price of $1.34, which warrant Socius exercised on April 29, 2010 and paid in the form of a secured promissory note.  There was no beneficial conversion feature as the fair value of the secured promissory notes approximated the fair value of the common stock and warrants issued on the date of issuance.

5. Stockholders’ Equity

Stock Option Plans

In April 2002, the Company’s Board of Directors approved the VeriChip Corporation 2002 Flexible Stock Plan (the “VeriChip 2002 Plan”). Under the VeriChip 2002 Plan, the number of shares for which options, SARs or performance shares may be granted is approximately 2.0 million. As of September 30, 2010, approximately 1.9 million options and restricted shares, net of forfeitures, have been granted to directors, officers and employees under the VeriChip 2002 Plan, and 0.3 million of the options or shares granted were outstanding as of September 30, 2010. All the outstanding options are fully vested and do not expire until seven to nine years from the vesting date. As of September 30, 2010, no SARs have been granted and 33,441 shares may still be granted under the VeriChip 2002 Plan.

On April 27, 2005, the Company’s Board of Directors approved the VeriChip Corporation 2005 Flexible Stock Plan (the “VeriChip 2005 Plan”). Under the VeriChip 2005 Plan, the number of shares for which options, SARs or performance shares may be granted is approximately 0.3 million. As of September 30, 2010, approximately 0.3 million options and shares have been granted under the VeriChip 2005 Plan. All of the options are fully vested and do not expire until nine years from the vesting date. As of September 30, 2010, no SARs have been granted and 832 shares may still be granted under the VeriChip 2005 Plan.

On June 17, 2007, the Company adopted the VeriChip 2007 Stock Incentive Plan, which was amended and restated on December 16, 2008 (the “VeriChip 2007 Plan”). Under the VeriChip 2007 Plan, the number of shares for which options, restricted shares, SARs or performance shares may be granted is 3.0 million. As of September 30, 2010, approximately 3.0 million options and shares have been granted under the VeriChip 2007 Plan. As of September 30, 2010, no SARs have been granted and 12,962 shares may be granted under the VeriChip 2007 Plan.



12



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


On November 10, 2009, the Company adopted the VeriChip 2009 Stock Incentive Plan (the “VeriChip 2009 Plan”). Under the VeriChip 2009 Plan, the number of shares for which options, SARs or performance shares may be granted is 5.0 million. As of September 30, 2010, approximately 3.8 million options and shares have been granted under the VeriChip 2009 Plan. As of September 30, 2010, no SARs have been granted and 1.2 million shares may be granted under the VeriChip 2009 Plan.

In addition, as of September 30, 2010, 0.3 million options to purchase the Company’s common stock have been granted outside of the Company’s plans, which remain outstanding as of September 30, 2010. These options were granted at exercise prices ranging from $0.23 to $8.55 per share, are fully vested and are exercisable for a period from seven to nine years.

At the effective time of the Merger, the Company assumed all of Steel Vault’s obligations under the SysComm International Corporation 2001 Flexible Stock Plan, as amended and restated, and each option outstanding thereunder, provided that the obligation to issue shares of the Company’s stock, as adjusted to reflect the exchange ratio set forth in the Merger Agreement, was substituted for the obligation to issue shares of Steel Vault common stock.

On November 10, 2009, pursuant to the Steel Vault Merger, approximately 6.7 million outstanding Steel Vault options were converted into 3.3 million Company options. These options were granted at exercise prices ranging from $0.36 to $2.00 per share, are fully vested and are exercisable for a period up to ten years from the vesting date.

A summary of option activity under the Company’s option plans as of September 30, 2010, and changes during the nine months then ended is presented below:


 

 

Number of Options

 

 

Weighted Average Exercise Price Per  Share

 

Outstanding on January 1, 2010

 

 

4,215

 

 

$

1.73

 

Granted

 

 

85

 

 

 

1.08

 

Exercised

 

 

(718

)

 

 

0.50

 

Forfeited

 

 

(41

)

 

 

0.28

 

 

 

 

 

 

 

 

 

Outstanding on September 30, 2010

 

 

3,541

 

 

 

1.98

 

 

 

 

 

 

 

 

 

Exercisable on September 30, 2010 (1)

 

 

3,375

 

 

 

2.05

 

 

 

 

 

 

 

 

 

Shares available on September 30, 2010 for options and common shares that may be granted

 

 

1,267

 

 

 

 

 


1      The intrinsic value of a stock option is the amount by which the fair value of the underlying stock exceeds the exercise price of the option. Based upon the Company’s closing price on the NASDAQ, the fair value of the underlying stock was $0.69 at September 30, 2010. As of September 30, 2010, the aggregate intrinsic value of all options outstanding was $0.5 million.


The 718,000 options exercised during the nine months ended September 2010 had a total intrinsic value of $663,000. Cash received from the option exercise was $359,000. There were no options exercised in the nine months ended September 30, 2009.

The following table summarizes information about stock options at September 30, 2010:


 

 

Outstanding Stock Options

 

 

Exercisable Stock Options

Range of Exercise Prices

 

Shares

 

 

Weighted Average Remaining Contractual Life (years)

 

 

Weighted Average Exercise Price Per Share

 

 

Shares

 

 

Weighted Average Exercise Price Per Share

$0.00 to $0.36

 

 

829

 

 

 

8.19

 

 

$

0.36

 

 

 

829

 

 

$

0.36

$0.37 to $0.62

 

 

1,106

 

 

 

5.35

 

 

 

0.47

 

 

 

1,000

 

 

 

0.43

$0.68 to $1.99

 

 

654

 

 

 

2.43

 

 

 

0.88

 

 

 

594

 

 

 

0.76

$2.00 to $5.75

 

 

523

 

 

 

3.99

 

 

 

4.39

 

 

 

523

 

 

 

4.39

Above $5.75

 

 

429

 

 

 

3.34

 

 

 

7.78

 

 

 

429

 

 

 

7.78

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,541

 

 

 

5.03

 

 

 

1.98

 

 

 

3,375

 

 

 

2.05

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




13



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


A summary of restricted stock outstanding as of September 30, 2010 and 2009 and changes during the nine months then ended, respectively, is presented below:


 

 

2010

 

 

2009

 

Unvested at January 1

 

 

4,192

 

 

 

1,520

 

Issued

 

 

1,980

 

 

 

250

 

Vested

 

 

(2,177)

 

 

 

(103

)

Forfeited or Expired

 

 

 

 

 

 

 

 

 

 

 

 

 

Unvested at September 30

 

 

3,995

 

 

 

1,667

 

 

 

 

 

 

 

 


There are inherent uncertainties in making estimates about forecasts of future operating results and identifying comparable companies and transactions that may be indicative of the fair value of the Company’s securities. The Company believes that the estimates of the fair value of its common stock at each option grant date were reasonable under the circumstances.

The Black-Scholes model, which the Company used to determine compensation expense, required the Company to make several key judgments including:

·

the value of the Company’s common stock;

·

the expected life of issued stock options;

·

the expected volatility of the Company’s stock price;

·

the expected dividend yield to be realized over the life of the stock option; and

·

the risk-free interest rate over the expected life of the stock options.

The Company prepared these estimates based upon its historical experience, the stock price volatility of comparable publicly-traded companies and its best estimation of future conditions.

The fair values of the options granted were estimated on the grant date using the Black-Scholes valuation model based on the following weighted-average assumptions:


 

 

2010

 

 

 

 

 

Expected dividend yield

 

 

 

Expected stock price volatility

 

 

100

%

Risk-free interest rate

 

 

1.79

%

Expected term (in years)

 

 

6.0

 


There were no options granted in the nine months ended September 30, 2009.

The Company’s computation of expected life was determined based on the simplified method. The interest rate was based on the U.S. Treasury Yield curve in effect at the time of grant. The Company’s computation of expected volatility is based on the Company’s historical volatility and the average historical volatility of comparable companies.

Warrants

On November 10, 2009, pursuant to the Steel Vault Merger, all outstanding Steel Vault warrants were converted into approximately 0.5 million Company warrants. These warrants were granted at exercise prices ranging from $0.60 to $1.16 per share, are fully vested and are exercisable for a period from five to ten years from their issuance. The expiration date of 0.2 million warrants is in December 2010, and the expiration of 0.3 million warrants is in 2014.

On April 28, 2010, in connection with the Preferred Tranche draw down, the Company issued a warrant to purchase 600,746 shares of its common stock to Socius, at an exercise price equal to the Investment Price of $1.34, which warrant Socius exercised on April 29, 2010 and paid in the form of a secured promissory note.

Share-Based Compensation

The Company’s Board of Directors believes that the use of share-based compensation is important to motivate executives, employees, consultants and other important vendors and partners of the Company.  The Company frequently uses share-based compensation in lieu of cash for both employee compensation and vendor/partner consideration.  The Board of Directors believes that the use of share-based compensation benefits the Company by conserving its working capital and aligning the interests of executives, employees and other partners with the interests of stockholders.



14



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


Share-based compensation expense is recognized using the fair-value based method for all awards granted. Compensation expense for awards granted is recognized over the requisite service period based on the grant-date fair value of those options.

Forfeitures are estimated at the time of grant and require the estimates to be revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

The Company recorded an expense, related to share-based compensation, of approximately $1.3 million and $3.7 million for the three and nine months ended September 30, 2010, and approximately $0.2 million and $0.5 million for the three and nine months ended September 30, 2009, respectively.

In December 2008, the Company authorized the grant of approximately 518,000 shares of its restricted common stock to Mr. Caragol, its then acting chief financial officer, in lieu of salary. The shares vested according to the following schedule: (i) 20% vested on the grant date, and (ii) 80% vested on January 1, 2010. Compensation expense of approximately $22,000 and $190,000 was recorded in the three and nine months ended September 30, 2009, respectively, for these shares.

In December 2008, the Company authorized the grant of approximately 602,000 shares of its restricted common stock to Mr. Silverman, its then executive chairman, in lieu of salary, which vested on January 1, 2010. Compensation expense of approximately $56,000 and $166,000 was recorded in the three and nine months ended September 30, and 2009, respectively, for these shares.

In December 2008, the Company issued 400,000 shares of its restricted common stock to members of the Board of Directors, which vested on January 1, 2010. The Company determined the value of the stock to be approximately $100,000 based on the value of its common stock on the date of grant. The value of the outstanding restricted stock was amortized as compensation expense over the vesting period. The Company recorded compensation expense of approximately $37,000 and $110,000 in the three and nine months ended September 30, 2009, respectively, associated with this restricted stock.

In January and December 2008, the Company issued options exercisable for approximately 195,000 shares of common stock: 155,000 to employees and 40,000 to a consultant.

The Company determined the fair value of the 155,000 employee options to be $37,000 on the date of grant based on an estimate of the fair value using the Black-Scholes valuation model as described above. The fair value of the grant is being recognized as compensation expense over the vesting period. Accordingly, the compensation expense recorded in connection with these options was approximately $1,500 and $4,500 for the three and nine months ended September 30, 2010, respectively, and approximately $1,500 and $4,500 was recorded in the three and nine months ended September 30, 2009, respectively.

The Company recorded compensation expense associated with the 40,000 options to the consultant using the variable accounting method which requires the Company to re-measure the compensation expense associated with these options at the end of each reporting period until the options are vested. Accordingly, the compensation expense recorded in connection with these options was approximately $(4,000)  and $3,000 for the three and nine months ended September 30, 2010, respectively, and approximately $21,000 and $22,000 was recorded in the three and nine months ended September 30, 2009, respectively.

In September and October 2009, the Company authorized the grant of approximately 350,000 shares of its restricted common stock to a research and development partner. The Company recorded research and development expense associated with the restricted stock using the variable accounting method that requires the Company to re-measure the compensation expense associated with the restricted stock at the end of each reporting period until the restricted stock is vested. Compensation expense recorded in connection with the restricted stock for the three and nine months ended September 30, 2010 was approximately nil and $162,000, respectively. The shares were fully vested as of March 31, 2010.

In November and December 2009, the Company authorized the grant of restricted stock for approximately 375,000 shares of common stock: 50,000 to an employee and 325,000 to consultants.

The Company determined the fair value of the 50,000 shares issued to the employee to be approximately $83,000 based on the closing price of the Company’s common stock on the date of grant. The fair value of the grant will be recognized as compensation expense over the vesting period. Accordingly, the Company recognized approximately $16,000 and $46,000 in compensation expense for the three and nine months ended September 30, 2010, respectively, in connection with this grant.

The Company recorded compensation expense associated with the 325,000 shares of restricted stock issued to consultants using the variable accounting method that requires the Company to re-measure the compensation expense associated with these shares at the end of each reporting period until the shares are vested. Compensation expense recorded in connection with the shares for the three and nine months ended September 30, 2010 was approximately $1,000 and 84,000, respectively.



15



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


In November 2009, the Company authorized the grant of 2.0 million shares of its restricted common stock to its executive officers which vest on a pro-rata basis through 2012. The Company determined the value of the stock to be $3.3 million based on the value of its common stock on the dates of grant. The value of the outstanding restricted stock is being amortized as compensation expense over the vesting period. The Company recorded compensation expense of approximately $560,000 and $1.7 million in the three and nine months ended September 30, 2010, respectively, associated with this restricted stock.

In January 2010, the Company authorized the grant of 50,000 shares of its common stock to a consultant. The Company determined the value of the stock to be approximately $56,000 based on the value of its common stock on the dates of grant. The Company recorded compensation expense of approximately nil and $56,000 in the three and nine months ended September 30, 2010, respectively, associated with this stock.

In January 2010, the Company authorized the grant of 100,000 shares of its common stock to an employee, 50% of which vested immediately and the other 50% of which will vest on July 1, 2010. The Company determined the value of the stock to be approximately $109,000 based on the value of its common stock on the dates of grant. The Company recorded compensation expense of approximately nil and $109,000 in the three and nine months ended September 30, 2010, respectively, associated with this restricted stock.

In January 2010, the Company authorized the grant of 385,000 shares of its common stock to members of its Board of Directors of which 370,000 shares were restricted. The Company determined the value of the stock to be approximately $420,000 based on the value of its common stock on the dates of grant. The value of the outstanding restricted stock was amortized as compensation expense over the vesting period. The Company recorded compensation expense of approximately $107,000 and $311,000 in the three and nine months ended September 30, 2010, respectively, associated with this stock.

In February and April 2010, the Company authorized the grant of approximately 290,000 shares of its restricted common stock to a research and development partner. The Company recorded research and development expense associated with the restricted stock using the variable accounting method that requires the Company to re-measure the compensation expense associated with the restricted stock at the end of each reporting period until the restricted stock is vested. Compensation expense recorded in connection with the restricted stock for the three and nine months ended September 30, 2010 was $22,000 and $310,000, respectively.

In April 2010, the Company issued options exercisable for approximately 60,000 shares of common stock to employees. The Company determined the fair value of the options to be $66,000 on the date of grant based on an estimate of the fair value using the Black-Scholes valuation model as described above. The fair value of the grant is being recognized as compensation expense over the vesting period. Accordingly, the compensation expense recorded in connection with these options was approximately $8,000 and $14,000 for the three and nine months ended September 30, 2010, respectively.

In April 2010, the Company authorized the grant of 16,000 shares of its common stock to a consultant. The Company determined the value of the stock to be approximately $23,000 based on the value of its common stock on the dates of grant. Compensation expense recorded in connection with the restricted stock for the three and nine months ended September 30, 2010 was nil and $23,000, respectively.

In April and May 2010, the Company authorized the grant of approximately 1.4 million shares of its common stock to its employees, including the Company’s chairman and chief executive officer and its President and Chief Financial Officer.  These executives agreed to receive stock based compensation in lieu of cash for salary and a portion of their incentive compensation for the remainder of 2010. The Company determined the value of the stock to be approximately $1.9 million based on the value of its common stock on the dates of grant. The value of the outstanding restricted stock was amortized as compensation expense over the vesting period. The Company recorded compensation expense of approximately $500,000 and $800,000 in the three and nine months ended September 30, 2010 associated with this stock.

In June 2010, the Company extended previously fully vested options set to expire on June 28, 2010 for one year for 175,000 shares for its chief executive officer. The Company recorded compensation expense of nil and $23,000 in the three and nine months ended September 30, 2010, respectively, related to the extension.

In July 2010, the Company authorized the grant of 50,000 shares of its common stock to an employee, 50% of which will vest in July 2011 and the other 50% of which will vest in July 2012. The Company determined the value of the stock to be approximately $51,000 based on the value of its common stock on the dates of grant. The Company recorded compensation expense of approximately $9,000 in the three and nine months ended September 30, 2010 associated with this restricted stock.

In July and September 2010, the Company authorized the grant of 123,000 shares of its common stock to several consultants. The Company determined the value of the stock to be approximately $108,000 based on the value of its common stock on the dates of grant. The Company recorded compensation expense of approximately $108,000 in the three and nine months ended September 30, 2010 associated with this stock.



16



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


NASDAQ Listing

On September 13, 2010, PositiveID received a letter from the Nasdaq indicating that PositiveID is not in compliance with the Nasdaq’s requirements for continued listing because, for the 30 consecutive business days prior to September 13, 2010, the bid price of its common stock closed below the minimum $1.00 per share price requirement for continued listing under Nasdaq Listing Rule 5550(a)(2) (the “Rule”).

The notification of noncompliance has no immediate effect on the listing or trading of PositiveID's common stock on the Nasdaq Capital Market.  PositiveID has 180 calendar days (or until March 14, 2011), to regain compliance with the bid price requirement.

If, at anytime before March 14, 2011, the bid price of PositiveID's common stock closes at $1.00 per share or more for a minimum of ten (10) consecutive business days, the Nasdaq staff will provide written notification that PositiveID has achieved compliance with the Rule. However, if PositiveID does not regain compliance with the Rule by March 14, 2011, the Nasdaq staff will provide written notification that PositiveID's securities are subject to delisting.

PositiveID may be eligible for an additional compliance period if it meets the Nasdaq Capital Market initial listing standards, except for the $1.00 per share bid price requirement. If PositiveID meets the initial listing criteria, the Staff will notify PositiveID that it has been granted an additional 180 calendar day compliance period.  If PositiveID is not eligible for an additional compliance period, the Staff will notify PositiveID that its common stock will be delisted. At that time, PositiveID may appeal to the Nasdaq Listing Qualifications Panel (the "Panel"), and PositiveID would remain listed pending the Panel's decision. PositiveID cannot provide any assurance that the Panel will allow PositiveID to remain listed in the event of any appeal.

If PositiveID’s common stock is delisted from the Nasdaq Stock Market, trading of its common stock most likely will be conducted in the over-the-counter market on an electronic bulletin board established for unlisted securities, such as the OTC Bulletin Board. Delisting would adversely affect the market liquidity of its common stock and harm PositiveID’s business and may hinder or delay its ability to consummate potential strategic transactions or investments. Such delisting could also adversely affect PositiveID’s ability to obtain financing for the continuation of its operations and could result in the loss of confidence by investors, suppliers and employees.

6. Other Comprehensive Income

Prior to the merger of the Company and Steel Vault, the Company invested $500 thousand in Steel Vault pursuant to a secured convertible promissory note.  The investment included a common stock purchase warrant given to the Company to purchase 333 thousand common shares of Steel Vault at a price of $0.30 per share.  The increase in the fair market value of $215 and $238 is recorded as other comprehensive income for the three and nine months ended September 30, 2009.  

7. Income Taxes

The Company had an effective tax rate of nil for the three and nine months ended September 30, 2010 and 2009.  The Company incurred losses before taxes for the three and nine months ended September 30, 2010, for which no tax benefit was taken due to an existing valuation allowance.  During the nine months ended September 30, 2009, the Company recognized a gain of $4.4 million related to the sale of Xmark.  However, no tax provision was recorded in 2009 because of net operating loss carry-forwards.

In January 2010, the Company received a notice from the Canadian Revenue Agency (CRA), that the CRA would be performing a review of Xmark’s Canadian tax returns for the periods 2005 through 2008. The Company plans to comply with all CRA information requests. This review will cover all periods that the Company owned Xmark.

The Company recognizes any interest accrued related to unrecognized tax benefits or exposures in interest expense and penalties in operating expenses. During the three and nine months ended September 30, 2010 and 2009, there was no such interest or penalty.

8. Legal Proceedings

The Company is a party to legal actions, as either plaintiff or defendant, arising in the ordinary course of business, none of which is expected to have a material adverse effect on its business, financial condition or results of operations. However, litigation is inherently unpredictable, and the costs and other effects of pending or future litigation, governmental investigations, legal and administrative cases and proceedings, whether civil or criminal, settlements, judgments and investigations, claims or charges in any such matters, and developments or assertions by or against the Company relating to it or to its intellectual property rights and intellectual property licenses could have a material adverse effect on the Company’s business, financial condition and operating results.

9. Related Party Transactions

Stock Ownership

As of  November 8, 2010, Mr. Silverman beneficially owned 30.2% of the Company’s outstanding common stock, including the 1,035,000 shares and 54,000 shares underlying a warrant that are directly owned by Blue Moon Energy Partners, LLC (“Blue


17



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


Moon”) and 4,785,008 shares that are directly owned by R & R.  Mr. Silverman, the Company’s chief executive officer and chairman of the Board of Directors, is a manager and controls a member of Blue Moon (i.e., R & R). William J. Caragol, the Company’s president, chief financial officer and member of the Board of Directors, is a manager and member of Blue Moon.

Optimus Financing

On September 29, 2009, the Company entered into the Purchase Agreement with Optimus, under which Optimus was committed to purchase up to $10 million of convertible Preferred Stock in one or more tranches. To facilitate the transactions contemplated by the Purchase Agreement, R & R loaned shares of common stock to Optimus equal to 135% of the aggregate purchase price for each tranche pursuant to Stock Loan Agreements between R & R and Optimus. On May 12, 2010, the Company converted all of the outstanding shares of Preferred Stock into shares of its common stock and Optimus repaid R&R in full. For more information regarding this transaction, see Note 4, “Financing Agreements,” to these condensed consolidated financial statements.

10. Segments

Since the Merger with Steel Vault on November 10, 2009, the Company operates in two business segments: HealthID and ID Security.

HealthID Segment

Our HealthID segment is currently focused on the development of four products: (1) the GlucoChip, a glucose-sensing microchip, based on our proprietary intellectual property which is being developed in conjunction with Receptors, (2) iGlucose , a stand-alone, self-contained unit that automatically queries a diabetic user’s date-capable glucometer for blood glucose data and sends that data via encrypted SMS text messaging to the iGlucose online database, (3) Easy Check, a non-invasive breath glucose detection system, based on the correlation of acetone in exhaled breath to blood glucose levels, and (4) the rapid flu detection system, also being developed in conjunction with Receptors.

Our HealthID segment also includes the VeriMed system, which uses the VeriChip in patient identification applications. Each implantable VeriChip contains a unique verification number that is read when it is scanned by our scanner. In October 2004, the FDA cleared our VeriMed system for use in medical applications in the United States.

ID Security Segment

Our ID Security segment focuses on selling a variety of identity security products and services primarily on a subscription basis through its subsidiary, NationalCreditReport.com. These services help consumers protect themselves against identity theft or fraud and understand and monitor their credit profiles and other personal information, which include credit reports, credit monitoring and credit scores. In the first quarter of 2010, the company re-launched its Health Link PHR business. The Company plans to focus its marketing efforts on partnering with health care providers and exchanges, physicians group, EMR system vendors, and insurers to use Health Link as PHR provided to their patients. The Company will also seek to partner with pharmaceutical companies who wish to communicate with its online community through various forms of value added content and advertising.

In September 2010, we agreed to sell our Health Link personal health record business for $1 million to Health Plexus, LLC.  In November 2010, we made the decision to terminate those discussions.

The accounting policies of the segments are the same as those described in the summary of significant accounting policies. The Company evaluates performance based on segment income as presented below.

The following is selected segment data as of and for the period ended:


 

 

 

 

 

 

 

 

 

 

  As of and For the Three Months Ended September 30

 

HealthID

 

 

ID Security

 

 

Total From Continuing Operations

 

  

 

 

 

 

 

 

 

 

 

 

 

 

2010

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

 

 

$

972

 

 

$

972

 

Operating loss

 

 

(2,791

)

 

 

(1,018

)

 

 

(3,809

)

Loss from continuing operations before income taxes

 

 

(2,771

)

 

 

(1,017

)

 

 

(3,788

)

 

 

 

 

 

 

 

 

 

 

 

 

 

Total assets of continuing operations

 

$

3,185

 

 

$

3,533

 

 

$

6,718

 



18



POSITIVEID CORPORATION

Notes to Unaudited Condensed Consolidated Financial Statements

(tabulated amounts in thousands of dollars, except per share amounts)


2009

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

104

 

 

$

 

 

$

104

 

Operating loss

 

 

(789

)

 

 

 

 

 

(789

)

Income from continuing operations before income taxes

 

 

(758

 

 

 

 

 

(758

)

 

 

 

 

 

 

 

 

 

 

 

 

 

Total assets of continuing operations

 

$

5,606

 

 

$

 

 

$

5,606

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  As of and For the Nine Months Ended September 30

 

HealthID

 

 

ID Security

 

 

 Total From Continuing Operations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2010

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

75

 

 

$

2,248

 

 

$

2,323

 

Operating loss

 

 

(7,741

)

 

 

(3,774

)

 

 

(11,515

)

Loss from continuing operations before income taxes

 

 

(7,727

)

 

 

(3,770

)

 

 

(11,497

)

 

 

 

 

 

 

 

 

 

 

 

 

 

Total assets of continuing operations

 

$

3,185

 

 

$

3,533

 

 

$

6,718

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2009

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

161

 

 

$

 

 

$

161

 

Operating loss

 

 

(3,055

)

 

 

 

 

 

(3,055

)

Income from continuing operations before income taxes

 

 

1,385

 

 

 

 

 

 

1,385

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total assets of continuing operations

 

$

5,606

 

 

$

 

 

$

5,606

 


11. Supplementary Cash Flow Information

In the nine months ended September 30, 2010 and 2009, the Company had the following non-cash investing and financing activities:


 

 

Nine Months Ended

 

 

 

September 30,

 

 

 

2010

 

 

2009

 

Non-cash financing and investing activities:

 

 

 

 

 

 

 

 

Accrued dividend payable

 

 

94 

 

 

 

 



19




Special Note Regarding Forward-Looking Statements

This Quarterly Report on Form 10-Q contains forward-looking statements, within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that reflect our current estimates, expectations and projections about our future results, performance, prospects and opportunities. Forward-looking statements include, without limitation, statements about our market opportunities, our business and growth strategies, our projected revenue and expense levels, possible future consolidated results of operations, the adequacy of our available cash resources, our financing plans, our competitive position and the effects of competition and the projected growth of the industries in which we operate, as well as the following statements:  

·

we believe the new interface involving glucose levels represents the next evolution in the development of an implantable glucose sensor that relies on passive RF technology to continuously monitor in vivo glucose levels over an extended period of time;

·

we are anticipating that the single-use capsule may enable us to accelerate the development of the Easy Check breath glucose detection system and produce a lab-scale prototype device during the third quarter of 2010;

·

we plan on submitting the iGlucose 510(k), including required research study and validation data, to the FDA by the end of 2010;

·

we plan to focus our marketing efforts on partnering with heath care providers and exchanges, physician groups, EMR system vendors, and insurers to use Health Link as a PHR provided to their patients;

·

we seek to partner with pharmaceutical companies who wish to communicate with their online community through various forms of value added content and advertising;

·

we intend to continue to explore potential strategic transactions with third parties in the healthcare, identification, animal health, and other sectors;

·

we intend to recognize revenue from consignment sales, if any, when all of the criteria listed under Note 1, “Revenue Recognition,” in our notes to financial statements have been met and after receipt of notification of such product sales from distributor’s customers;

·

we are a party to legal actions arising in the ordinary course of business, none of which we expect will have a material adverse effect on our business;

·

we intend to continue the development of the rapid flu detection system, and other health related products, built on our core intellectual property;

·

we expect the trend of selling, general and administrative expenses to be similar on an annualized basis;

·

we believe that with the cash we have on hand and our access to cash under current financing agreements, we will have sufficient funds available to cover our cash requirements through the next twelve months; and

·

we do not expect that recently issued accounting standards will have a material effect on our financial position, results of operations or cash flows.

This Quarterly Report on Form 10-Q also contains forward-looking statements attributed to third parties relating to their estimates regarding the size of the future market for products and systems such as our products and systems, and the assumptions underlying such estimates. Forward-looking statements include all statements that are not historical facts and can be identified by forward-looking statements such as “may,” “might,” “should,” “could,” “will,” “intends,” “estimates,” “predicts,” “projects,” “potential,” “continue,” “believes,” “anticipates,” “plans,” “expects” and similar expressions. Forward-looking statements are only predictions based on our current expectations and projections, or those of third parties, about future events and involve risks and uncertainties.

Although we believe that the expectations reflected in the forward-looking statements contained in this Quarterly Report on Form 10-Q are based upon reasonable assumptions, no assurance can be given that such expectations will be attained or that any deviations will not be material. In light of these risks, uncertainties and assumptions, the forward-looking statements, events and circumstances discussed in this Quarterly Report on Form 10-Q may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements. Important factors that could cause our actual results, level of performance or achievements to differ materially from those expressed or forecasted in, or implied by, the forward-looking statements we make in this Quarterly Report on Form 10-Q are discussed under “Item 1A. Risk Factors” and elsewhere in our Quarterly Report on Form 10-Q for the period ended March 31, 2010 and  in our Annual Report on Form 10-K for the year ended December 31, 2009 and include:

·

our ability to continue listing our common stock on the Nasdaq Stock Market (“Nasdaq”);

·

our ability to successfully consider, review, and if appropriate, implement other strategic opportunities;

·

our expectation that we will incur losses, on a consolidated basis, for the foreseeable future;

·

our ability to fund our operations and continued development of our products, including the rapid flu detection system, the glucose-sensing microchip, the Easy Check breath glucose detection system and the iGlucose wireless communication system;



20




·

our ability to complete the Phase II of the rapid flu detection system by the end of 2010 or at all and Phase II of the glucose-sensing microchip development program by the second half of 2010 or at all;

·

our ability to pursue our strategy to offer identification tools and technologies for consumers and businesses;

·

our ability to maximize the amount of capital that we will have available to pursue business opportunities in the healthcare and energy sectors;

·

our ability to successfully develop and commercialize the breath glucose detection system and the iGlucose wireless communication device and the glucose-sensing microchip, and the market acceptance of these devices and the microchip;

·

our ability to obtain patents on our products, including the Easy Check breath glucose detection system and the iGlucose wireless communication device, the validity, scope and enforceability of our patents, and the protection afforded by our patents;

·

we may become subject to costly product liability claims and claims that our products infringe the intellectual property rights of others;

·

our ability to comply with current and future regulations relating to our businesses;

·

uncertainty as to whether a market for our VeriMed system will develop and whether we will be able to generate more than a nominal level of revenue from this business;

·

the potential for patent infringement claims to be brought against us asserting that we hold no rights for the use of the implantable microchip technology and that we are violating another party’s intellectual property rights. If such a claim is successful, we could be enjoined from engaging in activities to market the systems that utilize the implantable microchip and be required to pay substantial damages;

·

our ability to provide uninterrupted, secure access to the Health Link and VeriMed databases; and

·

our ability to establish and maintain proper and effective internal accounting and financial controls.

You should not place undue reliance on any forward-looking statements. In addition, past financial or operating performance is not necessarily a reliable indicator of future performance, and you should not use our historical performance to anticipate future results or future period trends. Except as otherwise required by federal securities laws, we disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement contained in this Quarterly Report on Form 10-Q to reflect any change in our expectations or any change in events, conditions or circumstances on which any such statement is based. All forward-looking statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by the cautionary statements included in this Quarterly Report and our Quarterly Report on Form 10-Q for the period ended March 31, 2010 and under the section entitled “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2009. These are factors that could cause our actual results to differ materially from expected results. Other factors besides those listed could also adversely affect us.



21




Item 2.         Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the accompanying financial statements and related notes included in Item 1 of this Quarterly Report on Form 10-Q as well as our Annual Report on Form 10-K for the year ended December 31, 2009.

Overview

We have historically developed, marketed and sold RFID systems used for the identification of people in the healthcare market. Beginning in the fourth quarter of 2009, with the acquisition of Steel Vault, we are pursuing a strategy to provide unique health and security identification tools to protect consumers and businesses, operating in two key segments: HealthID and ID Security.

HealthID Segment

Our HealthID segment is currently focused on the development of four products: (1) the GlucoChip, a glucose-sensing microchip, based on our proprietary intellectual property which is being developed in conjunction with Receptors LLC (“Receptors”), (2) iGlucose TM , a stand-alone, self-contained unit that automatically queries a diabetic user’s date-capable glucometer for blood glucose data and sends that data via encrypted SMS text messaging to the iGlucose  online database, (3) Easy Check, a non-invasive breath glucose detection system, based on the correlation of acetone in exhaled breath to blood glucose levels, and (4) the rapid flu detection system, also being developed in conjunction with Receptors.

Our HealthID segment also includes the VeriMed system, which uses an implantable passive RFID microchip (the “VeriChip”) that is used in patient identification applications. Each implantable microchip contains a unique verification number that is read when it is scanned by our scanner. In October 2004, the U.S. Food and Drug Administration, or FDA, cleared our VeriMed system for use in medical applications in the United States.

HealthID Segment – Recent Developments

In July 2010, we announced the completion of the design of our prototype handheld Easy Check Breath Glucose Detection Device and plan to complete the development of the prototype unit by the end of 2010. The small unit, measuring approximately 5.5 inches by 4.5 inches, utilizes a single-use capsule containing a proprietary reagent that triggers a chemical reaction that can be immediately measured and correlated to blood glucose levels.

In August 2010, we filed a provisional patent application with the U.S. Patent and Trademark Office for an insulin pen tracking and recording device. The Insulin Tracker, a microprocessor-controlled device that slides onto standard insulin pens, enables diabetes patients to automatically track and record the amount of insulin they inject, including the time and date of each injection. The data is communicated from the Insulin Tracker's memory, along with the patient's blood glucose readings from their glucometer, to the iGlucose System database. The combined data provides a more complete record of blood glucose measurements, treatments and overall diabetes management and allows patients, caregivers and physicians to monitor compliance.

In August 2010, we and our development partner Receptors LLC ("Receptors") announced our plans to develop a product to capture salmonella for detection and diagnostics, and potentially other food-borne illnesses such as E.coli.

In September 2010, we announced that we initiated a research study with the Diabetes Research Institute ("DRI") at the University of Miami for our glucose-sensing microchip. The study will examine the biocompatibility and functionality of a semi-permeable membrane to be used in our GlucoChip TM . The study is the next step in the Company's development, which will run in parallel to our continued laboratory testing of the glucose sensor in blood and interstitial fluid.

ID Security Segment

Our ID Security segment includes our Identity Security suite of products, sold through our NationalCreditReport.com brand and our Health Link personal health record business. Our NationalCreditReport.com business was acquired in conjunction with our merger with Steel Vault in November 2009. NationalCredit-Report.com offers consumers a variety of identity security products and services primarily on a subscription basis. These services help consumers protect themselves against identity theft or fraud and understand and monitor their credit profiles and other personal information, which include credit reports, credit monitoring and credit scores. In the first quarter of 2010, the company re-launched its Health Link PHR business. The Company plans to focus its marketing efforts on partnering with health care providers and exchanges, physicians group, Electronic Medical Record (“EMR) system vendors, and insurers to use Health Link as PHR provided to their patients. The Company will also seek to partner with pharmaceutical companies who wish to communicate with its online community through various forms of value added content and advertising.

In September 2010, we agreed to sell our Health Link personal health record business for $1 million to Health Plexus, LLC. In November 2010, we made the decision to terminate those discussions.



22




We continue to focus on our HealthID and ID Security businesses, including the development of the GlucoChip, the Easy Check breath glucose detection system, the iGlucose wireless communication system, the rapid flu detection system, and our operating business in identity security. We intend to continue to explore potential strategic transactions with third parties in the healthcare, identification, animal health, and other sectors.

Results of Operations

With the acquisition of Steel Vault in November 2009, the Company operates in two key segments: HealthID and ID Security.

The following are the segment results for the three months ended September 30:


  2010

 

HealthID

 

 

ID Security

 

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

 

 

$

972

 

 

 

972

 

Cost of sales

 

 

 

 

 

427

 

 

 

427

 

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

 

 

 

 

545

 

 

 

545

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

 

2,593

 

 

 

1,563

 

 

 

4,156

 

Research and development

 

 

198

 

 

 

 

 

 

198

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

 

2,791

 

 

 

1,563

 

 

 

4,354

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

 

(2,791

)

 

 

(1,018

)

 

 

(3,809

)

 

 

 

 

 

 

 

 

 

 

(Interest expense) / other income, net

 

 

20

 

 

 

1

 

 

 

21

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(2,771

)

 

$

(1,017

)

 

 

(3,788

)

 

 

 

 

 

 

 

 

 

 


  2009

 

HealthID

 

 

ID Security

 

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

104

 

 

$

 

 

 

104

 

Cost of sales

 

 

35

 

 

 

 

 

 

35

 

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

 

69

 

 

 

 

 

 

69

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

 

858

 

 

 

 

 

 

858

 

Research and development

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

 

858

 

 

 

 

 

 

858

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

 

(789

)

 

 

 

 

 

(789

)

 

 

 

 

 

 

 

 

 

 

Interest / other income, net

 

 

31

 

 

 

 

 

 

31

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(758

 

$

 

 

 

(758




23




The following are the segment results for the nine months ended September 30:


  2010

 

HealthID

 

 

ID Security

 

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

75

 

 

$

2,248

 

 

 

2,323

 

Cost of sales

 

 

45

 

 

 

808

 

 

 

853

 

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

 

30

 

 

 

1,440

 

 

 

1,470

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

 

6,542

 

 

 

5,214

 

 

 

11,756

 

Research and development

 

 

1,229

 

 

 

 

 

 

1,229

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

 

7,771

 

 

 

5,214

 

 

 

12,985

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

 

(7,741

)

 

 

(3,774

)

 

 

(11,515

)

 

 

 

 

 

 

 

 

 

 

Other income

 

 

14

 

 

 

4

 

 

 

18

 

 

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(7,727

)

 

$

(3,770

)

 

 

(11,497

)

 

 

 

 

 

 

 

 

 

 


  2009

 

HealthID

 

 

ID Security

 

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenue

 

$

161

 

 

$

 

 

 

161

 

Cost of sales

 

 

54

 

 

 

 

 

 

54

 

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

 

107

 

 

 

 

 

 

107

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

 

3,162

 

 

 

 

 

 

3,162

 

Research and development

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total operating expenses

 

 

3,162

 

 

 

 

 

 

3,162

 

 

 

 

 

 

 

 

 

 

 

Operating loss

 

 

(3,055

)

 

 

 

 

 

(3,055

)

 

 

 

 

 

 

 

 

 

 

Interest / other income, net

 

 

4,440

 

 

 

 

 

 

4,440

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

1,385

 

 

$

 

 

 

1,385

 



Three Months Ended September 30, 2010 Compared to Three Months Ended September 30, 2009

HealthID Segment

Revenue

Revenue was nil for the three months ended September 30, 2010 compared to $104,000 for the three months ended September 30, 2009. The 2009 revenue was attributable primarily to sales of the Company’s VeriTrace systems. Each of the four products in the HealthID segment are currently in development.  The Company does not anticipate that any on these products will achieve material commercial revenues prior to the second half of 2011.

Gross Profit and Gross Profit Margin

Our cost of sales consists of finished goods and inventory valuation charges. The microchips used in our VeriMed system as well as our new 8 millimeter microchips are purchased as finished goods under the terms of our former agreement with Digital Angel Corporation.

We had a gross profit of nil in 2010 compared to a gross profit of $69,000 in 2009. The 2009 gross profit was attributable primarily to the sale of the Company’s VeriTrace systems.



24




Selling, General and Administrative Expense

Selling, general and administrative expense consists primarily of compensation for employees in executive, sales, marketing and operational functions, including finance and accounting, and corporate development. Other significant costs include depreciation and amortization, professional fees for accounting and legal services, consulting fees and facilities costs.

Selling, general and administrative expense increased by $1.7 million to $2.6 million for the three months ended September 30, 2010 compared to $0.9 million for the three months ended September 30, 2009. This increase was primarily a result of the increase of $1.1 million in share-based compensation, and legal costs in 2010 of approximately $0.2 million related to the Socius financing.

Research and Development

Our research and development expense consists primarily of costs associated with various projects, including testing, developing prototypes and related expenses. Research and development expense was $0.2 million for the three months ended September 30, 2010 compared to nil for the three months ended September 30, 2009. Our research and development costs represent payments to our project partner and acquisition of in process research and development.

ID Security Segment

The ID Security segment reflects the results of National Credit Report.com from the acquisition of Steel Vault on November 10, 2009.

Revenue

Revenue of $1.0 million for the three months ended September 30, 2010 resulted from sales of our identity security products through our National Credit Report.com subsidiary. At September 30, 2010, we had approximately 22,000 subscribers for its credit monitoring services compared to approximately 9,000 subscribers at November 10, 2009, the date of the Steel Vault Merger.  The Company does not plan to grow the subscriber base at the same rate that it did between 2009 and 2010.

Gross Profit and Gross Profit Margin

Cost of sales consists primarily of the costs related to purchasing the data, reporting and monitoring services from our supplier in order to provide services to our customers.

We had a gross profit of $0.5 million for the three months ended September 2010 from our identity security products through National Credit Report.com.

Selling, General and Administrative Expense

Selling, general and administrative expense consists primarily of compensation for employees in sales, marketing and operational functions, including finance and accounting. Other significant costs include professional fees for accounting and legal services, and consulting fees.

Selling, general and administrative expense for the three months ended September 30, 2010 was $1.5 million. Selling costs in the ID Security segment are primarily variable costs driven by the cost of customer acquisition and depreciation and amortization expense of approximately $0.3 million.

Nine Months Ended September 30, 2010 Compared to Nine Months Ended September 30, 2009

HealthID Segment

Revenue

Revenue was $75,000 for the nine months ended September 30, 2010 compared to $161,000 for the nine months ended September 30, 2009. In 2010, revenue was attributable primarily to the sale of our new 8 millimeter microchips to a medical device partner. In 2009, revenue was attributable primarily to sales of our VeriTrace systems to state and local government.

Gross Profit and Gross Profit Margin

Our cost of sales consists of finished goods and inventory valuation charges.

We had a gross profit of $30,000 in 2010 compared to a gross profit of $107,000 in 2009. In 2010, gross profit was attributable primarily to the sale of our new 8 millimeter microchips to a medical device partner. In 2009, gross profit was attributable primarily to the sale of our VeriTrace systems to state and local government.

Selling, General and Administrative Expense

Selling, general and administrative expense consists primarily of compensation for employees in executive, sales, marketing and operational functions, including finance and accounting, and corporate development. Other significant costs include depreciation and amortization, professional fees for accounting and legal services, consulting fees and facilities costs.



25




Selling, general and administrative expense increased by $3.3 million to $6.5 million for the nine months ended September 30, 2010 compared to $3.2 million for the nine months ended September 30, 2009. This increase was primarily a result of the increase in share-based compensation from $0.5 million in the nine months ended September 30, 2009 to $3.7 million in the nine months ended September 30, 2010.

Research and Development

Our research and development expense consists primarily of costs associated with various projects, including testing, developing product prototypes and related expenses. Research and development expense was $1.2 million for the nine months ended September 30, 2010 compared to nil for the nine months ended September 30, 2009. Our research and development costs represent payments to our project partner and acquisition of in process research and development.

ID Security Segment

The ID Security segment reflects the results of National Credit Report.com from the acquisition of Steel Vault on November 10, 2009.

Revenue

Revenue of $2.2 million for the nine months ended September 30, 2010 resulted from sales of our identity security products through our National Credit Report.com subsidiary. At September 30, 2010, we had approximately 22,000 subscribers for its credit monitoring services compared to approximately 9,000 subscribers at November 10, 2009, the date of the Steel Vault Merger.  The Company does not plan to grow the subscriber base at the same rate that it did between 2009 and 2010.

Gross Profit and Gross Profit Margin

Cost of sales consists primarily of the costs related to purchasing the data, reporting and monitoring services from our supplier in order to provide services to our customers.

We had a gross profit of $1.4 million for the nine months ended 2010 from our identity security products through National Credit Report.com.

Selling, General and Administrative Expense

Selling, general and administrative expense consists primarily of compensation for employees in sales, marketing and operational functions, including finance and accounting. Other significant costs include professional fees for accounting and legal services, and consulting fees.

Selling, general and administrative expense for the nine months ended September 30, 2010 was $5.2 million. Selling costs in the ID Security segment are primarily variable costs driven by the cost of customer acquisition and depreciation and amortization expense of approximately $1.2 million for the nine months ended September 30, 2010.

Liquidity and Capital Resources

As of September 30, 2010, unrestricted cash totaled approximately $3.3 million compared to unrestricted cash of approximately $6.4 million at December 31, 2009.

Cash Flows Used in Operating Activities

Net cash used in operating activities totaled $5.6 million and $2.7 million during the nine months ended September 30, 2010 and 2009, respectively. In 2010, cash was used primarily to fund operating losses. In 2009, cash was primarily used to fund operating losses and payments of accounts payable and accrued expenses.

Cash Flows from Investing Activities

Investing activities used cash of $28,000 and provided cash of $3.9 million during the nine months ended September 30, 2010 and 2009, respectively.   During 2010, cash was used to purchase equipment. Cash provided by investing activities included proceeds from the sale of Xmark of $4.4 million in 2009. In 2009, $0.5 million was also used to purchase a secured convertible promissory note from Steel Vault.

Cash Flows from Financing Activities

Financing activities provided cash of $2.5 million and nil during the nine months ended September 30, 2010 and 2009, respectively. In 2010, $2.3 million was provided by the Socius equity financing further discussed below and $0.4 million was provided from the issuance of common shares from option exercises.



26




Preferred Stock Purchase Agreement

On April 28, 2010, we entered into the Preferred Purchase Agreement with Socius Technology under which Socius Technology is committed to purchase up to $4.2 million in shares of our Preferred Stock in one or more Preferred Tranches, at $10,000 per share of Preferred Stock. Under the terms of the Preferred Purchase Agreement, from time to time and at our sole discretion, we may present Socius Technology with a Preferred Notice. Socius Technology is obligated to purchase such Preferred Stock on the third trading day after the Preferred Notice date, subject to satisfaction of the Closing Conditions.

Stock Purchase Agreement

On April 28, 2010, we entered into the Purchase Agreement with Socius under which Socius is committed to purchase in connection with any Preferred Tranche, up to that number of shares of common stock equal in dollar amount to the Common Tranche, at a per share price equal to the Investment Price. Under the Purchase Agreement, we also agreed to issue in connection with any Common Tranche, two-year warrants to purchase shares of common stock equal in dollar amount to 35% of the applicable Common Tranche, at an exercise price per share equal to the Investment Price.

Socius may pay the Investment Price for the common stock, at Socius’ option, in cash or a secured promissory note. Socius may pay the warrant exercise price, at Socius’ option, in cash, a secured promissory note, or, if applicable, by cashless exercise. The promissory note bears interest at 2.0% per year calculated on a simple interest basis. The entire principal balance and interest thereon is due and payable on the fourth anniversary of the date of the promissory note, but no payments are due so long as we are in default under the Preferred Purchase Agreement or the warrants or if there are any shares of Preferred Stock issued or outstanding. The promissory note is secured by the borrower’s right, title and interest in all outstanding shares of our common stock and other securities with a fair market value equal to the principal amount of the promissory note. Our right to deliver a tranche notice to Socius pursuant to the Purchase Agreement is subject to the Closing Conditions and also that no purchase would result in Socius and its affiliates beneficially owning more than 9.99% of the common stock. Unless we obtain stockholder approval or Socius obtains an opinion of counsel that stockholder approval is not required, Socius may not exercise a warrant if, as a result of such exercise, the aggregate number of shares of common stock issued upon exercise of all warrants it holds plus the aggregate number of shares of common stock issued under the Purchase Agreement would exceed 19.99% of our common stock outstanding. If at any time, upon the exercise of all warrants issued to Socius, Socius holds more than 19.99% of our outstanding common stock, we will be required to obtain stockholder approval of the transactions with Socius.

Tranche Draw Down

On April 29, 2010, we presented Socius Technology with a Preferred Notice to purchase $2.3 million of Preferred Stock in a Preferred Tranche. Upon the closing of the Preferred Tranche, which occurred on May 4, 2010, we issued 230 shares of Preferred Stock. In connection with the Preferred Notice, we also presented Socius with a notice to purchase $2.3 million of common stock and warrants to purchase 600,746 shares of common stock. We issued 1,716,417 shares of common stock at an Investment Price per share of $1.34, paid in the form a secured promissory note, and a warrant to purchase 600,746 shares of common stock to Socius, at an exercise price equal to the Investment Price of $1.34, which warrant Socius exercised on April 29, 2010 and paid in the form of a secured promissory note.

Financial Condition

As of September 30, 2010, we had working capital of approximately $1.6 million and an accumulated deficit of $65.2 million compared to a working capital of approximately $5.2 million and an accumulated deficit of approximately $53.7 million as of December 31, 2009. The decrease in working capital was primarily due to the operating losses described above.

Until we are able to achieve operating profits, it is our intention to continue to access capital markets to fund the development of our HealthID products.  Specifically, we have a $4.2 million financing agreement in place with Socius under which we have issued $2.3 million of Series B preferred stock, leaving us with $1.9 million of current capacity under that agreement.  Additionally, we currently have an effective “shelf” registration statement on Form S-3 which registers up to $9.6 million of securities.  Because we are a small cap issuer we will be limited from time to time in our ability to use capacity under the shelf registration statement.

The Company believes that with its current working capital, its access to capital under the Socius financing agreement, and through either new capital raised under its shelf registration statement, and/or reducing and delaying certain research, development and related activities, that it will have sufficient funds available to meet its working capital requirements over the next twelve months. There can be no assurances that it will be successful in negotiating additional sources of equity or credit for its long-term capital needs.  The Company’s inability to have continuous access to such financing at reasonable costs could materially and adversely impact its financial condition, results of operations and cash flows.



27




NASDAQ Listing

On September 13, 2010, PositiveID received a letter from the Nasdaq indicating that PositiveID is not in compliance with the Nasdaq’s requirements for continued listing because, for the 30 consecutive business days prior to September 13, 2010, the bid price of its common stock closed below the minimum $1.00 per share price requirement for continued listing under Nasdaq Listing Rule 5550(a)(2) (the “Rule”).

The notification of noncompliance has no immediate effect on the listing or trading of PositiveID's common stock on the Nasdaq Capital Market.  PositiveID has 180 calendar days (or until March 14, 2011), to regain compliance with the bid price requirement.

If, at anytime before March 14, 2011, the bid price of PositiveID's common stock closes at $1.00 per share or more for a minimum of ten (10) consecutive business days, the Nasdaq staff will provide written notification that PositiveID has achieved compliance with the Rule. However, if PositiveID does not regain compliance with the Rule by March 14, 2011, the Nasdaq staff will provide written notification that PositiveID's securities are subject to delisting.

PositiveID may be eligible for an additional compliance period if it meets the Nasdaq Capital Market initial listing standards, except for the $1.00 per share bid price requirement. If PositiveID meets the initial listing criteria, the Staff will notify PositiveID that it has been granted an additional 180 calendar day compliance period.  If PositiveID is not eligible for an additional compliance period, the Staff will notify PositiveID that its common stock will be delisted. At that time, PositiveID may appeal to the Nasdaq Listing Qualifications Panel (the "Panel"), and PositiveID would remain listed pending the Panel's decision. PositiveID cannot provide any assurance that the Panel will allow PositiveID to remain listed in the event of any appeal.

If PositiveID’s common stock is delisted from the Nasdaq Stock Market, trading of its common stock most likely will be conducted in the over-the-counter market on an electronic bulletin board established for unlisted securities, such as the OTC Bulletin Board. Delisting would adversely affect the market liquidity of its common stock and harm PositiveID’s business and may hinder or delay its ability to consummate potential strategic transactions or investments. Such delisting could also adversely affect PositiveID’s ability to obtain financing for the continuation of its operations and could result in the loss of confidence by investors, suppliers and employees.

Impact of Recently Issued Accounting Standards

In January 2010, the Financial Accounting Standard Board (“FASB”) issued Accounting Standards Update (“ASU”) 2010-06, Improving Disclosures about Fair Value Measurements. The ASU requires disclosing the amounts of significant transfers in and out of Level 1 and 2 fair value measurements and to describe the reasons for the transfers. The disclosures are effective for reporting periods beginning after December 15, 2009. Additionally, disclosures of the gross purchases, sales, issuances and settlements activity in Level 3 fair value measurements will be required for fiscal years beginning after December 15, 2010.  We have evaluated the potential impact of this standard and expect it will have no significant impact on our financial position or results of operations.

In January 2010, the FASB issued ASU 2010-01, Equity (Topic 505): Accounting for Distributions to Shareholders with Components of Stock and Cash (A Consensus of the FASB Emerging Issues Task Force). This amendment to Topic 505 clarifies that the stock portion of a distribution to shareholders that allows them to elect to receive cash or stock with a limit on the amount of cash that will be distributed is not a stock dividend for purposes of applying Topics 505 and 260. ASU 2010-01 is effective for interim and annual periods ending on or after December 15, 2009, and would be applied on a retrospective basis. The adoption of the provisions of ASU 2010-01 did not have a material effect on the financial position, results of operations or cash flows of the Company.

In April 2010, the FASB issued ASU No. 2010 - 17 – Revenue Recognition - Milestone Method (Topic 605): Milestone Method of Revenue Recognition . This standard provides guidance on defining a milestone and determining when it may be appropriate to apply the milestone method of revenue recognition for certain research and development transactions. Under this new standard, a company can recognize as revenue consideration that is contingent upon achievement of a milestone in the period in which it is achieved, only if the milestone meets all criteria to be considered substantive.  This standard will be effective for us on a prospective basis for periods beginning after January 1, 2011.  We have evaluated the potential impact of this standard and expect it will have no significant impact on our financial position or results of operations.

Item 3.     Quantitative and Qualitative Disclosures About Market Risk.

As a “Smaller Reporting Company,” we are not required to provide the information required by this item.



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Item 4.     Controls and Procedures.

Disclosure Controls and Procedures

Evaluation of Disclosure Controls . We evaluated the effectiveness of the design and operation of our “disclosure controls and procedures” as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as of September 30, 2010. This evaluation (the “disclosure controls evaluation”) was done under the supervision and with the participation of management, including our chief executive officer (“CEO”) and chief financial officer (“CFO”). Rules adopted by the SEC require that in this section of our Quarterly Report on Form 10-Q we present the conclusions of the CEO and CFO about the effectiveness of our disclosure controls and procedures as of September 30, 2010 based on the disclosure controls evaluation.

Objective of Controls. Our disclosure controls and procedures are designed so that information required to be disclosed in our reports filed under the Exchange Act, such as this Quarterly Report on Form 10-Q, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Our disclosure controls and procedures are also intended to ensure that such information is accumulated and communicated to our management, including the CEO and CFO, as appropriate to allow timely decisions regarding required disclosure. There are inherent limitations to the effectiveness of any system of disclosure controls and procedures, including the possibility of human error and the circumvention or overriding of the controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable assurance of achieving their control objectives, and management necessarily is required to use its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures.

Conclusion . Based upon the disclosure controls evaluation, our CEO and CFO have concluded that, as of September 30, 2010, our disclosure controls and procedures were effective to provide reasonable assurance that the foregoing objectives are achieved.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting identified in connection with the evaluation required by paragraph (d) of Rule 13a-15 under the Exchange Act that occurred during the quarter ended September 30, 2010 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.



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PART II — OTHER INFORMATION

Item 1.     Legal Proceedings.

The information set forth in Note 8 to the Condensed Consolidated Financial Statements in Part I, Item I of this Form 10-Q is incorporated herein by reference.

Item 1A.     Risk Factors.

Item 1A to Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2009 and Item 1A to Part II of our Quarterly Report on Form 10-Q for the period ended March 31, 2010  include a detailed discussion of other risk factors that could materially affect our business, financial condition or future results.

During the quarter ending September 30, 2010, PositiveID failed to meet applicable Nasdaq Stock Market requirements. If in the future PositiveID were to fail to meet one of these requirements, its stock could be delisted by the Nasdaq Stock Market. If delisting occurs, it would adversely affect the market liquidity of its common stock and harm its businesses.

On September 13, 2010, PositiveID received a letter from the Nasdaq indicating that PositiveID is not in compliance with the Nasdaq’s requirements for continued listing because, for the 30 consecutive business days prior to September 13, 2010, the bid price of its common stock closed below the minimum $1.00 per share price requirement for continued listing under Nasdaq Listing Rule 5550(a)(2) (the “Rule”).

The notification of noncompliance has no immediate effect on the listing or trading of PositiveID's common stock on the Nasdaq Capital Market.  PositiveID has 180 calendar days (or until March 14, 2011), to regain compliance with the bid price requirement.

If, at anytime before March 14, 2011, the bid price of PositiveID's common stock closes at $1.00 per share or more for a minimum of ten (10) consecutive business days, the Nasdaq staff will provide written notification that PositiveID has achieved compliance with the Rule. However, if PositiveID does not regain compliance with the Rule by March 14, 2011, the Nasdaq staff will provide written notification that PositiveID's securities are subject to delisting.

PositiveID may be eligible for an additional compliance period if it meets the Nasdaq Capital Market initial listing standards, except for the $1.00 per share bid price requirement. If PositiveID meets the initial listing criteria, the Staff will notify PositiveID that it has been granted an additional 180 calendar day compliance period.  If PositiveID is not eligible for an additional compliance period, the Staff will notify PositiveID that its common stock will be delisted. At that time, PositiveID may appeal to the Nasdaq Listing Qualifications Panel (the "Panel"), and PositiveID would remain listed pending the Panel's decision. PositiveID cannot provide any assurance that the Panel will allow PositiveID to remain listed in the event of any appeal.

If PositiveID’s common stock is delisted from the Nasdaq Stock Market, trading of its common stock most likely will be conducted in the over-the-counter market on an electronic bulletin board established for unlisted securities, such as the OTC Bulletin Board. Delisting would adversely affect the market liquidity of its common stock and harm PositiveID’s business and may hinder or delay its ability to consummate potential strategic transactions or investments. Such delisting could also adversely affect PositiveID’s ability to obtain financing for the continuation of its operations and could result in the loss of confidence by investors, suppliers and employees.

Item 2.     Unregistered Sale of Equity Securities .

During the three months ended September 30, 2010, we issued the following shares of our common stock that were not registered under the Securities Act of 1933, as amended:

On September 20, 2010, we issued 12,500 shares of our common stock to an advisor, in connection with the execution of a consulting agreement.

The shares of common stock described in this Item 2 were issued without registration in reliance upon the exemption provided, among others, by Section 4(2) of the Securities Act of 1933, as amended, as a transaction not involving any public offering.

Item 5.     Other Information.

Executive Employment and Non-Compete Agreements

On November 10, 2010, the Company’s compensation committee (the “Compensation Committee”) approved a five year employment and non-compete agreement for Scott R. Silverman, our Chairman of the Board and Chief Executive Officer, and a five year employment and non-compete agreement for William J. Caragol, our President and Chief Financial Officer. Beginning in 2011, Mr. Silverman and Mr. Caragol will receive a base salary of $375,000 and $225,000, respectively.  Each executive's base salary will



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increase a minimum of 5% per annum during each calendar year of the term.  During the term, each executive shall receive a minimum annual bonus for each calendar year of the term in an amount equal to a minimum of one (1) times such executive’s base salary.  Additionally, the Compensation Committee has the authority to approve a discretionary bonus for each year of the term. Each of Mr. Silverman and Mr. Caragol will receive 1,000,000 and 750,000 shares of restricted stock, respectively, under the PositiveID Corporation 2009 Stock Incentive Plan. These restricted shares will vest according to the following schedule: (i) 50% vest on January 1, 2012; and (ii) 50% vest on January 1, 2013. Mr. Silverman’s and Mr. Caragol’s rights and interests in the unvested portion of the restricted stock are subject to forfeiture in the event they resign prior to January 1, 2013 or are terminated for cause prior to January 1, 2013, with said cause being defined as a conviction of a felony or such person being prevented from providing services to the Company as a result of such person’s violation of any law, regulation and/or rule. Mr. Silverman and Mr. Caragol are entitled to Company-paid health insurance and disability insurance, non-allocable expenses of $45,000 and $25,000, respectively, and each are entitled to use of an automobile leased by the Company and other automobile expenses, including insurance, gasoline and maintenance costs.  If Mr. Silverman’s or Mr. Caragol’s employment is terminated prior to the expiration of the term of their respective employment agreements, certain significant payments become due to such executives. The amount of such significant payments depends on the nature of the termination. In addition, the employment agreements contain a change of control provision that provides for the payment of five times the then current base salary and five times the average bonus paid to Mr. Silverman for the three full calendar years immediately prior to the change of control and three times the then current base salary and three times the average bonus paid to Mr. Caragol for the three full calendar years immediately prior to the change of control.  Any outstanding stock options or restricted shares held by such executive as of the date of his termination or a change of control become vested and exercisable as of such date, and remain exercisable during the remaining life of the option.  Upon a change of control, the Company shall continue to pay all leases payments on the vehicle then used by executive. The employment agreements also contain non-compete and confidentiality provisions which are effective from the date of employment through two years from the date the employment agreements are terminated.   

Item 6.        Exhibits.

We have listed the exhibits by numbers corresponding to the Exhibit Table of Item 601 in Regulation S-K on the Exhibit list attached to this report.




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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 thereunto duly authorized.


 

POSITIVEID CORPORATION

(Registrant)

 

 

 

Date: November 12, 2010 

By:  

/s/ William J. Caragol  

 

 

William J. Caragol 

 

 

President and Chief Financial Officer

(Duly Authorized Officer and Principal Financial Officer) 




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Exhibit Index


Exhibit

 

 

Number

 

Description

 

3.1

 

 

Second Amended and Restated Certificate of Incorporation of PositiveID Corporation filed with the Secretary of State of Delaware on December 18, 2006, as amended on November 10, 2009 (1)

 

3.2

 

 

Amended and Restated By-laws of PositiveID Corporation adopted as of December 12, 2005, as amended on March 16, 2010 (2)

 

3.3

 

 

Certificate of Elimination to Eliminate the Series A Preferred Stock of PositiveID Corporation (3)

 

 

 

 

 

 

4.1

 

 

Form of Specimen Common Stock Certificate (2)

 

10.1*

 

 

PositiveID Corporation Employment and Non-Compete Agreement between the Company and Scott R. Silverman dated November 11, 2010

 

10.2*

 

 

PositiveID Corporation Employment and Non-Compete Agreement between the Company and William J. Caragol dated November 11, 2010

 

 

 

 

 

 

31.1

*

 

Certification by Chief Executive Officer, pursuant to Exchange Act Rules 13A-14(a) and 15d-14(a)

 

31.2

*

 

Certification by Chief Financial Officer, pursuant to Exchange Act Rules 13A-14(a) and 15d-14(a)

 

32.1

*

 

Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002


*

 

Filed herewith.

(1)

 

Incorporated by reference to the Form 10-Q previously filed by PositiveID Corporation on May 6, 2010.

(2)

 

Incorporated by reference to the Form 10-K previously filed by PositiveID Corporation on March 19, 2010.

(3)

 

Incorporated by reference to the Form 8-K previously filed by PositiveID Corporation on October 15, 2010.




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Exhibit 10.1


POSITIVE ID CORPORATION

EMPLOYMENT AND NON-COMPETE AGREEMENT


AGREEMENT made this 11th day of November, 2010 and effective as of January 1, 2011 (the “Effective Date”), by and between the parties to this Agreement (hereinafter individually referred to as “Party” and collectively referred to as “Parties”), POSITIVEID CORPORATION , a Delaware Business Corporation (hereinafter referred to as “PSID”), and SCOTT R. SILVERMAN (hereinafter referred to as “Executive”).

WHEREAS , PSID is a leader in innovative healthcare products and applications and also has operations focused on identity security solutions (the “Business”); and

WHEREAS , Executive has contributed meaningfully in his capacity as Chairman and CEO of PSID, f/k/a VeriChip Corporation (“VeriChip”) and other predecessor companies; and

WHEREAS , PSID finds it is in its best interest to enhance Executive’s contribution to the Business, to protect its technologies and business relationships, and to continue engage Executive’s services as Chairman and Chief Executive Officer of PSID; and

WHEREAS , Executive is willing to continue the fulltime role as PSID’s Chairman and Chief Executive Officer.

NOW THEREFORE , in consideration of the promises and the mutual obligations set

forth in this Agreement, the Parties agree as follows:

1.

Employment .  PSID agrees to continue to employ Executive, and Executive agrees to continue such employment by PSID, pursuant to the terms and conditions set forth in this Agreement.

2.

Position and Responsibilities .  During the term of this Agreement, as defined below, Executive shall serve as Chairman and Chief Executive Officer of PSID and will perform such duties and exercise such supervision with regard to the business of PSID as are associated with such positions, as well as such additional duties as may be reasonably prescribed from time to time by PSID’s Board of Directors (the “Board”).  Executive agrees to render services to the best of Executive’s ability for and on behalf of PSID.  Executive agrees to devote his full business time to rendering such services on behalf of PSID.  

3.

Term .  Except as otherwise provided in this Section 3 or Section 8(c) of this Agreement, the term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue in force thereafter for a period of five (5) years from the Effective Date.  Notwithstanding the foregoing, upon the happening of any of the following events, this Agreement shall terminate (unless otherwise provided herein for a termination after a period of time) and Executive shall cease to be an employee of PSID:

(a)

Executive’s resignation upon sixty (60) days advance written notice;

(b)

Executive’s Total Disability upon PSID’s election.  For purposes of this Agreement, “Total Disability” shall be defined as Executive’s inability, due to illness, accident or any other physical or mental incapacity, to perform Executive’s usual responsibilities performed by Executive for PSID prior to the onset of such disability, for one hundred eighty (180) consecutive days during the Term.  PSID may elect, by written notice to Executive, within thirty (30) days of the end of such period of Total Disability defined above, to terminate Executive’s employment herein;

(c)

the death of Executive;

(d)

Executive’s Constructive Termination.  For purposes of this Agreement, “Constructive Termination” shall be defined as a material breach by PSID of its obligations under this Agreement (including but not limited to any reduction of Executive’s Base Salary, bonuses or incentive compensation as provided herein).  If Executive chooses to treat such material breach as a Constructive Termination, Executive shall provide PSID with written notice describing the circumstances being relied upon by Executive for such termination with respect to this Agreement within thirty (30) days after the event giving rise to the Constructive Termination.  PSID shall have thirty (30) days after receipt of such notice to remedy the situation prior to the Constructive Termination being deemed final; or

(e)

PSID terminates this Agreement for cause, with said cause being defined as a conviction of a felony or Executive being prevented from providing services hereunder as a result of Executive’s violation of any law, regulation and/or rule.





(f)

Nothing in this Agreement is intended to limit the rights of PSID to terminate this Agreement under applicable bankruptcy laws in the event that PSID files for protection under the United States Bankruptcy Code.

4.

Annual Compensation .  (a)

During the Term, Executive shall be entitled to compensation for all services performed by Executive pursuant to this Agreement (“Compensation”) as follows:

(1)

Executive shall be entitled to a base salary (the “Base Salary”) equal to that of Executive’s base salary for the 2010 calendar year (THREE HUNDRED SEVENTY-FIVE THOUSAND ($375,000.00) DOLLARS) for the 2011 calendar year, payable according to the customary payroll practices of PSID for the then current period.  The Base Salary shall increase a minimum of five percent (5%) per annum during each calendar year during the Term or in such greater amount  (but not decreased) as may be determined in the reasonable discretion of the Compensation Committee appointed  by the Board (the “Compensation Committee”).  The “Base Salary” shall, for all purposes of this Agreement, mean the Base Salary then being paid by PSID to Executive.

(2)

During the Term, Executive shall be receive an annual bonus for each calendar year of an amount equal to a minimum of one (1) times the Base Salary, or such other greater multiple as reasonably determined in the discretion of the Compensation Committee, which shall consider bonuses paid by similarly situated employers to similarly situated employees and Executive’s prior annual bonuses received from PSID and VeriChip.

(3)

During the Term, in addition to the bonus in the preceding section (2), Executive shall be eligible for discretionary incentive bonus compensation for each calendar year, to be reasonably determined by the Compensation Committee, which shall consider bonuses paid by similarly situated employers to similarly situated employees and Executive’s prior discretionary incentive bonus compensation received from PSID and VeriChip.

(b)

PSID shall deduct from the Compensation all taxes and other deductions which are required to be deducted or withheld under any provision of any federal, state, or local law now in effect or which may become effective at any time during the Term.

5.

Fringe Benefits .  During the Term, Executive shall be entitled to all fringe benefits (the “Fringe Benefits”) provided to senior executive employees of PSID, as reasonably determined by the Compensation Committee.  The Fringe Benefits shall specifically include executive health benefits which shall entitle Executive to full reimbursement for all physical examinations and other related services and use of an automobile leased by PSID for use by Executive.  In addition, PSID shall utilize its commercially reasonable efforts to obtain and maintain, at its sole cost and expense, disability insurance coverage that shall provide Executive with up to TWENTY-TWO THOUSAND SEVEN HUNDRED FIFTY ($22,750.00) DOLLARS in monthly salary continuation payments, subject to applicable limitation periods and the availability of such coverage, in the event of the disability of Executive.

6.

Business and Other Expenses .  PSID will reimburse Executive for all reasonable travel, entertainment and other expenses incurred by Executive in connection with the performance of his duties and obligations under this Agreement.  Executive will comply with all reasonable reporting requirements with respect to business expenses as may be established by PSID from time to time.  In addition, PSID shall pay to Executive FORTY-FIVE THOUSAND ($45,000.00) DOLLARS per year during the Term, payable in TWENTY-TWO THOUSAND FIVE HUNDRED ($22,500.00) DOLLAR installments on or before January 15 and July 15, representing non-allocable expenses that shall be deemed additional compensation to Executive.

7.

Additional Benefits .  (a)  Executive will be entitled to participate in all other compensation or employee benefit plans or programs and receive all benefits for which salaried employees of PSID generally are eligible under any plan or program now or later established by PSID on the same basis as similarly situated senior executives of PSID.  Executive will participate to the extent permissible under the terms and provisions of such plans or programs, in accordance with program provisions.

(b)

PSID shall issue 1,000,000 shares (the “Shares”) of restricted stock in PSID to Executive on the later to occur of: (i) stockholder approval of the amended and restated PSID 2009 Stock Incentive Plan, or (ii) the filing of the Form S-8, as amended, to reflect the amended and restated PSID 2009 Stock Incentive Plan, fifty (50%) percent of which shall vest on January 1, 2012 and fifty (50%) percent of which shall vest on January 1, 2013, provided that the Compensation Committee may, in its sole discretion, cause the Shares to vest on December 31, 2011 and December 31, 2012, respectively.  The Shares will be registered as soon as practicable, which is anticipated to be approximately six (6) months from the date of issuance of the Shares.  The Shares shall be subject to a substantial risk of forfeiture in the event that this Agreement is terminated on or before December 31, 2012 pursuant to subparagraphs (a) or (e) of Section 3 of this Agreement in which event the Shares shall immediately be forfeited.  



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8.

Payment Upon Termination of Agreement .  (a)  In the event this Agreement is terminated by Executive’s resignation pursuant to subparagraph (a) or (e) of Section 3 of this Agreement, PSID will pay to Executive any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination.  PSID shall pay such amounts due Executive within thirty (30) days of Executive’s last day of service.  In addition, any outstanding stock options held by Executive on Executive’s last day of service shall remain exercisable for the life of the option.  Further, Executive may, at his sole option, assume all obligations for the leased vehicle then used by Executive, which vehicle is being leased by PSID for use by Executive.

(b)

(i)

Subject to the provisions of Section 8(c)(iv) below, in the event this Agreement is terminated pursuant to any of subparagraphs (b) through (d) of Section 3 of this Agreement, or if PSID terminates this Agreement without cause, PSID will, in addition to maintaining the Fringe Benefits through December 31, 2015, pay to Executive the sum of (i) any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination; (ii) the greater of (A) the Base Salary from the date of termination through December 31, 2015, or (B) two (2) times the Base Salary; and (iii) the average bonus paid by PSID to Executive for the last three (3) full calendar years (or such lesser time period if the Agreement is terminated less than three (3) years from the Effective Date) immediately prior to the date of termination, (collectively, the “Termination Compensation”).

(ii)

The Termination Compensation shall be paid within sixty (60) days of Executive’s last day of service.  In addition, any outstanding stock options  and unvested restricted shares held by Executive on Executive’s last day of service pursuant to such termination shall become vested and exercisable as of such date of termination, and will remain exercisable for the life of the option.  Further, PSID shall continue to pay all monthly payments on the vehicle then owned and financed by Executive, which vehicle is being leased by PSID for use by Executive.  In addition, PSID shall maintain Executive on its group medical plan on the same conditions as if he were to remain employed by PSID, until Executive is eligible to be covered under another comparable group medical plan.

(c)

(i)

To the extent that during the Term there shall be Change in Control, as hereinafter defined, notwithstanding any term to the contrary in this Agreement, this Agreement shall terminate in which event, the Executive shall be entitled to receive the Change in Control Compensation, as hereafter defined.

(ii)

For all purposes of this Agreement, a Change in Control shall have the same definition as in the PSID 2009 Stock Incentive Plan, approved by the stockholders on November 10, 2009; provided, however, that in no event shall there be a Change of Control if there is a merger or consolidation in which PSID and Digital Angel Corporation are the sole parties to such merger or consolidation.

(iii)

For all purposes of this Agreement, the Term Change in Control Compensation shall mean the sum of (A) any and all earned but unpaid Base Salary and earned but unpaid bonus compensation as of the date of the Change in Control; (B) five (5) times the Base Salary; and (C) five (5) times the average bonus paid by PSID and/or VeriChip to Executive for the three (3) full calendar years immediately prior to the Change in Control.  The Change in Control Compensation shall be paid to Executive within ten (10) days of the Change in Control.  In addition, any outstanding stock options and unvested restricted stock held by Executive as of the Change in Control shall become vested and exercisable as of such date, and shall remain exercisable as of the life of the option.  Further, PSID shall continue to pay all lease payments on the vehicle then used by Executive, which vehicle is being leased by PSID for use by Executive.

(iv)

For avoidance of confusion, in the event of a Change of Control, the Executive shall be entitled to the Change of Control Compensation and not the Termination Compensation.

9.

Confidential Information .  (a)  Executive recognizes and acknowledges that all information pertaining to this Agreement or to the affairs; business; results of operations; accounting methods, practices and procedures; shareholders; acquisition candidates; financial condition; clients; customers or other relationships of PSID or any of its affiliates (“Information”) is confidential and is a unique and valuable asset of PSID or any of its affiliates.  Access to and knowledge of the Information is essential to the performance of Executive’s duties under this Agreement.  Executive will not, during the Term or thereafter, except to the extent reasonably necessary in performance of his duties under this Agreement, give to any person, firm, association, corporation, or governmental agency any Information, except as may be required by law.  Executive will not make use of the Information for his own purposes or for the benefit of any person or organization other than PSID or any of its affiliates.  Executive will also use his best efforts to prevent the disclosure of this Information by others.  All records, memoranda, etc. relating to the business of PSID or its affiliates, whether made by Executive or otherwise coming into his possession, are confidential and will remain the property of PSID or its affiliates.

(b)

Executive will, with reasonable notice during or after the Term, furnish information as may be in his possession and fully cooperate with PSID and its affiliates as may be required in connection with any claims or legal action in which PSID or any of its affiliates is or may become a party.



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10.

Restrictions .  (a)  During the Term, and only to the extent that Executive submits his resignation in accordance with Section 3(a), thereafter for a two (2) year period (the “Restriction Period”), Executive agrees that, without the prior express written approval from the Board, he shall not compete with PSID and its affiliates by directly or indirectly engaging in the Business, either directly or indirectly, as an individual, partner, member, corporation, limited liability company, limited liability partnership, officer of a corporation or in any other capacity whatsoever at any location at which PSID or its affiliates conducts business and/or provides any services.

(b)

Executive acknowledges that the restrictions contained in this Section 10 of this Agreement, in view of the nature of the activities in which PSID and its affiliates are engaged, are reasonable and necessary in order to protect the legitimate interests of PSID and its affiliates, and that any violation thereof would result in irreparable injuries to PSID and/or its affiliate(s), as the case may be.  Executive, therefore, acknowledges that, in the event of the violation of any of these restrictions, PSID shall be entitled to obtain from any Court of competent jurisdiction preliminary and permanent injunctive relief, as well as attorneys fees and costs, damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative, and in addition to any other rights or remedies to which PSID may be entitled.  

(c)

Executive agrees that the restrictions contained in this Section 10 of this Agreement are an essential element of Executive’s compensation that Executive is granted hereunder and, but for Executive’s agreement to comply with such restrictions, PSID would not have entered into this Agreement.

(d)

If any of the restrictions set forth in this Section 10 should, for any reason, be adjudged invalid or unreasonable in any proceeding, then the validity or enforceability of the remainder of such restrictions shall not be adversely affected.  If the Restriction Period or the area specified in this Section 10 of this Agreement shall be adjudged unreasonable in any proceeding, then the Restriction Period shall be reduced by such number of months, or the area shall be reduced by the elimination of such portion thereof or both, so that such restrictions may be enforced in such area and for such period of time as is adjudged to be reasonable.  If Executive violates any of the restrictions contained in this Section 10, the Restriction Period shall not run in favor of Executive from the time of commencement of any such violation until such time as such violation shall be cured by Executive to the satisfaction of PSID.

(e)

The terms of this Section 10 shall survive the termination of this Agreement. Executive acknowledges that he can be gainfully employed and still comply with the terms of this Section 10 and that it is not unduly inconvenient to him.

11.

Indemnification; Litigation .  (a)  PSID will indemnify Executive to the fullest extent permitted by the laws of the State of Florida in effect at that time, or the certificate of incorporation and by-laws of PSID, whichever affords the greater protection to Executive.  Executive will be entitled to any insurance policies PSID may elect to maintain generally for the benefit of its officers and directors against all costs, charges and expenses incurred in connection with any action, suit or proceeding to which he may be made a party by reason of being an officer of PSID.

(b)

In the event of any litigation or other proceeding between PSID and Executive with respect to the subject matter of this Agreement, PSID will reimburse Executive for all costs and expenses related to the litigation or proceedings, including attorney’s fees and expenses, providing that the litigation or proceedings results in either a settlement requiring PSID to make a payment to Executive or judgment in favor of Executive.

12.

Mitigation .  Executive will not be required to mitigate the amount of any payment provided for hereunder by seeking other employment or otherwise, nor will the amount of any such payment be reduced by any compensation earned by Executive as the result of employment by another employer after the date Executive’s employment hereunder terminates.

13.

Remedies .  (a)  In the event of a breach of this Agreement, the nonbreaching Party may maintain an action for specific performance against the Party who is alleged to have breached any of the terms of this Agreement.  This subparagraph (a) of this Section 13 of this Agreement will not be construed to limit in any manner any other rights or remedies an aggrieved Party may have by virtue of any breach of this Agreement.

(b)

Each of the Parties has the right to waive compliance with any obligation of this Agreement, but a waiver by any Party of any obligation will not be deemed a waiver of compliance with any other obligation or of its right to seek redress for any breach of any obligation on any subsequent occasion, nor will any waiver be deemed effective unless in writing and signed by the Party so waiving.

14.

Attorney's Representations .  Executive acknowledges that PSID’s counsel, COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A., prepared this Agreement on behalf of and in the course of its representation of PSID, and that:

(a)

Executive has been advised to seek the advice of independent counsel; and

(b)

Executive has had the opportunity to seek and has, in fact, received the advice of independent counsel of his choosing.



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15.

Notices .  Any notices required or permitted by this Agreement or by law to be served on, or delivered to, any Party to this Agreement, shall be in writing and shall be signed by the Party giving or delivering it and sent by courier that guarantees overnight delivery, or by registered or certified mail, return receipt requested, addressed to the Party to whom any communication under this Agreement is to be made.  Notice given as provided herein shall be deemed to have been given on the mailing date and, unless otherwise provided herein, shall be effective from that date.  Notice shall be sent to the respective Party at the address set forth below.  Any Party may change its address for purposes of receiving notices by furnishing notice of such change in the manner set forth above.

If to PSID:

Positive ID Corporation

1690 South Congress Avenue- Suite 200

Delray Beach, Florida  33445


If to Executive:

Scott R. Silverman

955 Iris Drive

Delray Beach, Florida  33483


16.

Invalid Provisions .  The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and the Agreement shall be construed in all respects as though such invalid or unenforceable provisions were omitted.

17.

Assignment .  This Agreement shall inure to the benefit of and be binding upon PSID, its successors and assigns, and Executive.  This Agreement, being for the personal services of Executive, shall not be assignable or subject to anticipation by Executive.

18.

Amendments .  The terms and provisions of this Agreement may not be modified except by written instrument duly executed by the Parties.

19.

Entire Agreement .  This Agreement supersedes all other oral and written agreements between the Parties with respect to the matters contained in this Agreement and, except as otherwise provided herein, this Agreement contains all of the covenants and agreements between the Parties with respect to those matters.

20.

Law Governing Agreement .  This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.  Any terms and conditions of this Agreement which apply to Executive and/or govern Executive’s behavior after Executive’s termination of employment and/or after the termination of this Agreement shall automatically survive the termination of this Agreement.  

21.

Consent to Jurisdiction and Venue .  The Parties hereby consent and submit to the jurisdiction and venue of any state or federal court within the State of Florida, Palm Beach County in any litigation arising out of this Agreement.

22.

Captions and Gender .   The headings contained in this Agreement are inserted for convenience and reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provisions hereof, and shall not affect in any way the meaning or interpretation of this Agreement or any provisions hereof.  All personal pronouns used in this Agreement shall include the other genders whether used in the masculine or feminine or neuter gender, and the singular shall include the plural and vice versa whenever and as often as may be appropriate.

23.

Counterpart Execution .  This Agreement may be executed in two or more counterparts either by facsimile or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.



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IN WITNESS WHEREOF , the Parties hereto have set their hands and seals as of the date set forth on the first page of this Agreement.



ATTEST:

POSITIVE ID CORPORATION



/s/ Allison Tomek

 

/s/ William J. Caragol

Allison Tomek, Secretary

 

By:  William J. Caragol, President

 

 

 

 

 

 

WITNESS:

 

EXECUTIVE:

 

 

 

 

 

 

/s/ Courtney Cady

 

/s/ Scott R. Silverman

Courtney Cady

 

SCOTT R. SILVERMAN





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Exhibit 10.2


POSITIVE ID CORPORATION

EMPLOYMENT AND NON-COMPETE AGREEMENT


AGREEMENT made this 11th day of November, 2010 and effective as of January 1, 2011 (the “Effective Date”), by and between the parties to this Agreement (hereinafter individually referred to as “Party” and collectively referred to as “Parties”), POSITIVEID CORPORATION , a Delaware Business Corporation (hereinafter referred to as “PSID”), and WILLIAM J. CARAGOL (hereinafter referred to as “Executive”).

WHEREAS , PSID is a leader in innovative healthcare products and applications and also has operations focused on identity security solutions (the “Business”); and

WHEREAS , Executive has contributed meaningfully in his capacity as President, Chief Financial Officer and Director of PSID, f/k/a VeriChip Corporation (“VeriChip”) and other predecessor companies; and

WHEREAS , PSID finds it is in its best interest to enhance Executive’s contribution to the Business, to protect its technologies and business relationships, and to continue engage Executive’s services as President, Chief Financial Officer and Director of PSID; and

WHEREAS , Executive is willing to continue the fulltime role as PSID’s President, Chief Financial Officer and Director.

NOW THEREFORE , in consideration of the promises and the mutual obligations set

forth in this Agreement, the Parties agree as follows:

1.

Employment .  PSID agrees to continue to employ Executive, and Executive agrees to continue such employment by PSID, pursuant to the terms and conditions set forth in this Agreement.

2.

Position and Responsibilities .  During the term of this Agreement, as defined below, Executive shall serve as President, Chief Financial Officer and Director of PSID and will perform such duties and exercise such supervision with regard to the business of PSID as are associated with such positions, as well as such additional duties as may be reasonably prescribed from time to time by PSID’s Board of Directors (the “Board”).  Executive agrees to render services to the best of Executive’s ability for and on behalf of PSID.  Executive agrees to devote his full business time to rendering such services on behalf of PSID.  

3.

Term .  Except as otherwise provided in this Section 3 or Section 8(c) of this Agreement, the term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue in force thereafter for a period of five (5) years from the Effective Date.  Notwithstanding the foregoing, upon the happening of any of the following events, this Agreement shall terminate (unless otherwise provided herein for a termination after a period of time) and Executive shall cease to be an employee of PSID:

(a)

Executive’s resignation upon sixty (60) days advance written notice;

(b)

Executive’s Total Disability upon PSID’s election.  For purposes of this Agreement, “Total Disability” shall be defined as Executive’s inability, due to illness, accident or any other physical or mental incapacity, to perform Executive’s usual responsibilities performed by Executive for PSID prior to the onset of such disability, for one hundred eighty (180) consecutive days during the Term.  PSID may elect, by written notice to Executive, within thirty (30) days of the end of such period of Total Disability defined above, to terminate Executive’s employment herein;

(c)

the death of Executive;

(d)

Executive’s Constructive Termination.  For purposes of this Agreement, “Constructive Termination” shall be defined as a material breach by PSID of its obligations under this Agreement (including but not limited to any reduction of Executive’s Base Salary, bonuses or incentive compensation as provided herein).  If Executive chooses to treat such material breach as a Constructive Termination, Executive shall provide PSID with written notice describing the circumstances being relied upon by Executive for such termination with respect to this Agreement within thirty (30) days after the event giving rise to the Constructive Termination.  PSID shall have thirty (30) days after receipt of such notice to remedy the situation prior to the Constructive Termination being deemed final; or

(e)

PSID terminates this Agreement for cause, with said cause being defined as a conviction of a felony or Executive being prevented from providing services hereunder as a result of Executive’s violation of any law, regulation and/or rule.





(f)

Nothing in this Agreement is intended to limit the rights of PSID to terminate this Agreement under applicable bankruptcy laws in the event that PSID files for protection under the United States Bankruptcy Code.

4.

Annual Compensation .  (a)

During the Term, Executive shall be entitled to compensation for all services performed by Executive pursuant to this Agreement (“Compensation”) as follows:

(1)

Executive shall be entitled to a base salary (the “Base Salary”) equal to that of Executive’s base salary for the 2010 calendar year (TWO HUNDRED TWENTY-FIVE THOUSAND ($225,000.00) DOLLARS) for the 2011 calendar year, payable according to the customary payroll practices of PSID for the then current period.  The Base Salary shall increase a minimum of five percent (5%) per annum during each calendar year during the Term or in such greater amount  (but not decreased) as may be determined in the reasonable discretion of the Compensation Committee appointed  by the Board (the “Compensation Committee”).  The “Base Salary” shall, for all purposes of this Agreement, mean the Base Salary then being paid by PSID to Executive.

(2)

During the Term, Executive shall be receive an annual bonus for each calendar year of an amount equal to a minimum of one (1) times the Base Salary, or such other greater multiple as reasonably determined in the discretion of the Compensation Committee, which shall consider bonuses paid by similarly situated employers to similarly situated employees and Executive’s prior annual bonuses received from PSID and VeriChip.

(3)

During the Term, in addition to the bonus in the preceding section (2), Executive shall be eligible for discretionary incentive bonus compensation for each calendar year, to be reasonably determined by the Compensation Committee, which shall consider bonuses paid by similarly situated employers to similarly situated employees and Executive’s prior discretionary incentive bonus compensation received from PSID and VeriChip.

(b)

PSID shall deduct from the Compensation all taxes and other deductions which are required to be deducted or withheld under any provision of any federal, state, or local law now in effect or which may become effective at any time during the Term.

5.

Fringe Benefits .  During the Term, Executive shall be entitled to all fringe benefits (the “Fringe Benefits”) provided to senior executive employees of PSID, as reasonably determined by the Compensation Committee.  The Fringe Benefits shall specifically include executive health benefits which shall entitle Executive to full reimbursement for all physical examinations and other related services and use of an automobile leased by PSID for use by Executive.  In addition, PSID shall utilize its commercially reasonable efforts to obtain and maintain, at its sole cost and expense, disability insurance coverage that shall provide Executive with up to SEVENTEEN THOUSAND FIVE HUNDRED ($17,500.00) DOLLARS in monthly salary continuation payments, subject to applicable limitation periods and the availability of such coverage, in the event of the disability of Executive.

6.

Business and Other Expenses .  PSID will reimburse Executive for all reasonable travel, entertainment and other expenses incurred by Executive in connection with the performance of his duties and obligations under this Agreement.  Executive will comply with all reasonable reporting requirements with respect to business expenses as may be established by PSID from time to time.  In addition, PSID shall pay to Executive TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS per year during the Term, payable in TWELVE THOUSAND FIVE HUNDRED ($12,500.00) DOLLAR installments on or before January 15 and July 15, representing non-allocable expenses that shall be deemed additional compensation to Executive.

7.

Additional Benefits .  (a)  Executive will be entitled to participate in all other compensation or employee benefit plans or programs and receive all benefits for which salaried employees of PSID generally are eligible under any plan or program now or later established by PSID on the same basis as similarly situated senior executives of PSID.  Executive will participate to the extent permissible under the terms and provisions of such plans or programs, in accordance with program provisions.

(b)

PSID shall issue 750,000 shares (the “Shares”) of restricted stock in PSID to Executive on the later to occur of: (i) stockholder approval of the amended and restated PSID 2009 Stock Incentive Plan, or (ii) the filing of the Form S-8, as amended, to reflect the amended and restated PSID 2009 Stock Incentive Plan, fifty (50%) percent of which shall vest on January 1, 2012 and fifty (50%) percent of which shall vest on January 1, 2013, provided that the Compensation Committee may, in its sole discretion, cause the Shares to vest on December 31, 2011 and December 31, 2012, respectively.  The Shares will be registered as soon as practicable, which is anticipated to be approximately six (6) months from the date of issuance of the Shares.  The Shares shall be subject to a substantial risk of forfeiture in the event that this Agreement is terminated on or before December 31, 2012 pursuant to subparagraphs (a) or (e) of Section 3 of this Agreement in which event the Shares shall immediately be forfeited.  



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8.

Payment Upon Termination of Agreement .  (a)  In the event this Agreement is terminated by Executive’s resignation pursuant to subparagraph (a) or (e) of Section 3 of this Agreement, PSID will pay to Executive any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination.  PSID shall pay such amounts due Executive within thirty (30) days of Executive’s last day of service.  In addition, any outstanding stock options held by Executive on Executive’s last day of service shall remain exercisable for the life of the option.  Further, Executive may, at his sole option, assume all obligations for the leased vehicle then used by Executive, which vehicle is being leased by PSID for use by Executive.

(b)

(i)

Subject to the provisions of Section 8(c)(iv) below, in the event this Agreement is terminated pursuant to any of subparagraphs (b) through (d) of Section 3 of this Agreement, or if PSID terminates this Agreement without cause, PSID will, in addition to maintaining the Fringe Benefits through December 31, 2015, pay to Executive the sum of (i) any and all earned but unpaid Base Salary and earned but unpaid incentive bonus compensation as of the date of termination; (ii) the greater of (A) the Base Salary from the date of termination through December 31, 2015, or (B) two (2) times the Base Salary; and (iii) the average bonus paid by PSID to Executive for the last three (3) full calendar years (or such lesser time period if the Agreement is terminated less than three (3) years from the Effective Date) immediately prior to the date of termination (collectively, the “Termination Compensation”).

(ii)

The Termination Compensation shall be paid within sixty (60) days of Executive’s last day of service.  In addition, any outstanding stock options  and unvested restricted shares held by Executive on Executive’s last day of service pursuant to such termination shall become vested and exercisable as of such date of termination, and will remain exercisable for the life of the option.  Further, PSID shall continue to pay all monthly payments on the vehicle then owned and financed by Executive, which vehicle is being leased by PSID for use by Executive.  In addition, PSID shall maintain Executive on its group medical plan on the same conditions as if he were to remain employed by PSID, until Executive is eligible to be covered under another comparable group medical plan.

(c)

(i)

To the extent that during the Term there shall be Change in Control, as hereinafter defined, notwithstanding any term to the contrary in this Agreement, this Agreement shall terminate in which event, the Executive shall be entitled to receive the Change in Control Compensation, as hereafter defined.

(ii)

For all purposes of this Agreement, a Change in Control shall have the same definition as in the PSID 2009 Stock Incentive Plan, approved by the stockholders on November 10, 2009; provided, however, that in no event shall there be a Change of Control if there is a merger or consolidation in which PSID and Digital Angel Corporation are the sole parties to such merger or consolidation.

(iii)

For all purposes of this Agreement, the Term Change in Control Compensation shall mean the sum of (A) any and all earned but unpaid Base Salary and earned but unpaid bonus compensation as of the date of the Change in Control; (B) three (3) times the Base Salary; and (C) three (3) times the average bonus paid by PSID and/or VeriChip to Executive for the three (3) full calendar years immediately prior to the Change in Control.  The Change in Control Compensation shall be paid to Executive within ten (10) days of the Change in Control.  In addition, any outstanding stock options and unvested restricted stock held by Executive as of the Change in Control shall become vested and exercisable as of such date, and shall remain exercisable as of the life of the option.  Further, PSID shall continue to pay all lease payments on the vehicle then used by Executive, which vehicle is being leased by PSID for use by Executive.

(iv)

For avoidance of confusion, in the event of a Change of Control, the Executive shall be entitled to the Change of Control Compensation and not the Termination Compensation.

9.

Confidential Information .  (a)  Executive recognizes and acknowledges that all information pertaining to this Agreement or to the affairs; business; results of operations; accounting methods, practices and procedures; shareholders; acquisition candidates; financial condition; clients; customers or other relationships of PSID or any of its affiliates (“Information”) is confidential and is a unique and valuable asset of PSID or any of its affiliates.  Access to and knowledge of the Information is essential to the performance of Executive’s duties under this Agreement.  Executive will not, during the Term or thereafter, except to the extent reasonably necessary in performance of his duties under this Agreement, give to any person, firm, association, corporation, or governmental agency any Information, except as may be required by law.  Executive will not make use of the Information for his own purposes or for the benefit of any person or organization other than PSID or any of its affiliates.  Executive will also use his best efforts to prevent the disclosure of this Information by others.  All records, memoranda, etc. relating to the business of PSID or its affiliates, whether made by Executive or otherwise coming into his possession, are confidential and will remain the property of PSID or its affiliates.

(b)

Executive will, with reasonable notice during or after the Term, furnish information as may be in his possession and fully cooperate with PSID and its affiliates as may be required in connection with any claims or legal action in which PSID or any of its affiliates is or may become a party.



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10.

Restrictions .  (a)  During the Term, and only to the extent that Executive submits his resignation in accordance with Section 3(a), thereafter for a two (2) year period (the “Restriction Period”), Executive agrees that, without the prior express written approval from the Board, he shall not compete with PSID and its affiliates by directly or indirectly engaging in the Business, either directly or indirectly, as an individual, partner, member, corporation, limited liability company, limited liability partnership, officer of a corporation or in any other capacity whatsoever at any location at which PSID or its affiliates conducts business and/or provides any services.

(b)

Executive acknowledges that the restrictions contained in this Section 10 of this Agreement, in view of the nature of the activities in which PSID and its affiliates are engaged, are reasonable and necessary in order to protect the legitimate interests of PSID and its affiliates, and that any violation thereof would result in irreparable injuries to PSID and/or its affiliate(s), as the case may be.  Executive, therefore, acknowledges that, in the event of the violation of any of these restrictions, PSID shall be entitled to obtain from any Court of competent jurisdiction preliminary and permanent injunctive relief, as well as attorneys fees and costs, damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative, and in addition to any other rights or remedies to which PSID may be entitled.  

(c)

Executive agrees that the restrictions contained in this Section 10 of this Agreement are an essential element of Executive’s compensation that Executive is granted hereunder and, but for Executive’s agreement to comply with such restrictions, PSID would not have entered into this Agreement.

(d)

If any of the restrictions set forth in this Section 10 should, for any reason, be adjudged invalid or unreasonable in any proceeding, then the validity or enforceability of the remainder of such restrictions shall not be adversely affected.  If the Restriction Period or the area specified in this Section 10 of this Agreement shall be adjudged unreasonable in any proceeding, then the Restriction Period shall be reduced by such number of months, or the area shall be reduced by the elimination of such portion thereof or both, so that such restrictions may be enforced in such area and for such period of time as is adjudged to be reasonable.  If Executive violates any of the restrictions contained in this Section 10, the Restriction Period shall not run in favor of Executive from the time of commencement of any such violation until such time as such violation shall be cured by Executive to the satisfaction of PSID.

(e)

The terms of this Section 10 shall survive the termination of this Agreement. Executive acknowledges that he can be gainfully employed and still comply with the terms of this Section 10 and that it is not unduly inconvenient to him.

11.

Indemnification; Litigation .  (a)  PSID will indemnify Executive to the fullest extent permitted by the laws of the State of Florida in effect at that time, or the certificate of incorporation and by-laws of PSID, whichever affords the greater protection to Executive.  Executive will be entitled to any insurance policies PSID may elect to maintain generally for the benefit of its officers and directors against all costs, charges and expenses incurred in connection with any action, suit or proceeding to which he may be made a party by reason of being an officer of PSID.

(b)

In the event of any litigation or other proceeding between PSID and Executive with respect to the subject matter of this Agreement, PSID will reimburse Executive for all costs and expenses related to the litigation or proceedings, including attorney’s fees and expenses, providing that the litigation or proceedings results in either a settlement requiring PSID to make a payment to Executive or judgment in favor of Executive.

12.

Mitigation .  Executive will not be required to mitigate the amount of any payment provided for hereunder by seeking other employment or otherwise, nor will the amount of any such payment be reduced by any compensation earned by Executive as the result of employment by another employer after the date Executive’s employment hereunder terminates.

13.

Remedies .  (a)  In the event of a breach of this Agreement, the nonbreaching Party may maintain an action for specific performance against the Party who is alleged to have breached any of the terms of this Agreement.  This subparagraph (a) of this Section 13 of this Agreement will not be construed to limit in any manner any other rights or remedies an aggrieved Party may have by virtue of any breach of this Agreement.

(b)

Each of the Parties has the right to waive compliance with any obligation of this Agreement, but a waiver by any Party of any obligation will not be deemed a waiver of compliance with any other obligation or of its right to seek redress for any breach of any obligation on any subsequent occasion, nor will any waiver be deemed effective unless in writing and signed by the Party so waiving.

14.

Attorney's Representations .  Executive acknowledges that PSID’s counsel, COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A., prepared this Agreement on behalf of and in the course of its representation of PSID, and that:

(a)

Executive has been advised to seek the advice of independent counsel; and

(b)

Executive has had the opportunity to seek and has, in fact, received the advice of independent counsel of his choosing.



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15.

Notices .  Any notices required or permitted by this Agreement or by law to be served on, or delivered to, any Party to this Agreement, shall be in writing and shall be signed by the Party giving or delivering it and sent by courier that guarantees overnight delivery, or by registered or certified mail, return receipt requested, addressed to the Party to whom any communication under this Agreement is to be made.  Notice given as provided herein shall be deemed to have been given on the mailing date and, unless otherwise provided herein, shall be effective from that date.  Notice shall be sent to the respective Party at the address set forth below.  Any Party may change its address for purposes of receiving notices by furnishing notice of such change in the manner set forth above.

If to PSID:

Positive ID Corporation

1690 South Congress Avenue- Suite 200

Delray Beach, Florida  33445


If to Executive:

William J. Caragol

6357 NW 33 rd Avenue

Boca Raton, Florida  33496


16.

Invalid Provisions .  The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and the Agreement shall be construed in all respects as though such invalid or unenforceable provisions were omitted.

17.

Assignment .  This Agreement shall inure to the benefit of and be binding upon PSID, its successors and assigns, and Executive.  This Agreement, being for the personal services of Executive, shall not be assignable or subject to anticipation by Executive.

18.

Amendments .  The terms and provisions of this Agreement may not be modified except by written instrument duly executed by the Parties.

19.

Entire Agreement .  This Agreement supersedes all other oral and written agreements between the Parties with respect to the matters contained in this Agreement and, except as otherwise provided herein, this Agreement contains all of the covenants and agreements between the Parties with respect to those matters.

20.

Law Governing Agreement .  This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.  Any terms and conditions of this Agreement which apply to Executive and/or govern Executive’s behavior after Executive’s termination of employment and/or after the termination of this Agreement shall automatically survive the termination of this Agreement.  

21.

Consent to Jurisdiction and Venue .  The Parties hereby consent and submit to the jurisdiction and venue of any state or federal court within the State of Florida, Palm Beach County in any litigation arising out of this Agreement.

22.

Captions and Gender .   The headings contained in this Agreement are inserted for convenience and reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provisions hereof, and shall not affect in any way the meaning or interpretation of this Agreement or any provisions hereof.  All personal pronouns used in this Agreement shall include the other genders whether used in the masculine or feminine or neuter gender, and the singular shall include the plural and vice versa whenever and as often as may be appropriate.

23.

Counterpart Execution .  This Agreement may be executed in two or more counterparts either by facsimile or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Remainder Left Blank]



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IN WITNESS WHEREOF , the Parties hereto have set their hands and seals as of the date set forth on the first page of this Agreement.



ATTEST:

POSITIVE ID CORPORATION



/s/ Allison Tomek

 

/s/ Scott R. Silverman

Allison Tomek, Secretary

 

By:  Scott R. Silverman, CEO

 

 

 

 

 

 

WITNESS:

 

EXECUTIVE:

 

 

 

 

 

 

/s/ Courtney Cady

 

/s/ William J. Caragol

Courtney Cady

 

WILLIAM J. CARAGOL





-6-


Exhibit 31.1

Certification of the Chief Executive Officer Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002

I, Scott R. Silverman, certify that:

1.

 

I have reviewed this Quarterly Report on Form 10-Q of PositiveID Corporation;

 

 

 

2.

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

 

3.

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

 

4.

 

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:

 

a)

 

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

 

 

 

b)

 

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

 

 

 

c)

 

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

 

 

 

d)

 

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and


5.

 

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a)

 

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

 

 

 

b)

 

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


 

 

 

 

 

 

 

 

Date: November 12, 2010 

/s/ Scott R. Silverman  

 

 

Scott R. Silverman 

 

 

Chief Executive Officer
(Principal Executive Officer) 

 


Exhibit 31.2

Certification of the Chief Financial Officer Pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002


I, William J. Caragol, certify that:

1.

 

I have reviewed this Quarterly Report on Form 10-Q of PositiveID Corporation;

 

 

 

2.

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

 

3.

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

 

4.

 

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:

 

a)

 

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

 

 

 

b)

 

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

 

 

 

c)

 

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

 

 

 

d)

 

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

 

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a)

 

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

 

 

 

 

b)

 

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


 

 

 

 

 

 

 

 

Date: November 12, 2010 

/s/ William J. Caragol  

 

 

William J. Caragol 

 

 

President and Chief Financial Officer (Principal Financial Officer) 

 


Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of PositiveID Corporation (the “Company”) on Form 10-Q for the period ending September 30, 2010 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Scott R. Silverman, Chief Executive Officer of the Company, and I, William J. Caragol, President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

(1)

 

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

 

 

(2)

 

The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.

 

 

 

/s/ Scott R. Silverman

 

Scott R. Silverman

 

 

Chief Executive Officer

 

 

Date: November 12, 2010

 

 

 

 

 

/s/ William J. Caragol

 

 

  

 

 

William J. Caragol

 

 

President and Chief Financial Officer

 

 

Date: November 12, 2010


A signed original of this written statement required by Section 906 has been provided to PositiveID Corporation and will be retained by PositiveID Corporation and furnished to the Securities and Exchange Commission or its staff upon request.