UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
☒ Annual Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the fiscal year ended December 31, 2022
OR
☐ Transition Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Securities Exchange Act of 1934
For the fiscal year ended December 31, 2022
Commission file number 000-21129
AWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
(State or Other Jurisdiction ofc
Incorporation or Organization)
04-2911026
(I.R.S. Employer Identification No.)
76 Blanchard Road, Burlington, Massachusetts 01803
(Address of Principal Executive Offices)
(Zip Code)
(781) 687-0300
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Common Stock, $0.01 par value per share
Trading Symbol
AWRE
Name of Each Exchange on Which Registered
The Nasdaq Global Market
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ☐ No ☒
Securities registered pursuant to Section 12(g) of the Act: None
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 ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of
"large accelerated filer”, “accelerated filer", “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.:
Large Accelerated Filer___ Accelerated Filer_ Non-Accelerated Filer_X_ Smaller Reporting Company_X_ Emerging Growth Company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. [ ]
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the
Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously
issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during
the relevant recovery period pursuant to §240.10D-1(b).
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of June 30, 2022, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant, based on the closing sale price as reported on the Nasdaq Global Market, was
approximately $32,068,865.
The number of shares outstanding of the registrant’s common stock as of March 1, 2023 was 20,993,870.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive Proxy Statement to be delivered to shareholders in connection with the registrant’s Annual Meeting of Shareholders to be held on June 7, 2023 are incorporated by
reference into Part III of this Annual Report on Form 10-K.
AWARE, INC.
FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2022
TABLE OF CONTENTS
PART I
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
PART II
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Reserved
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
PART III
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
PART IV
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
Item 7.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 9C.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Exhibits and Financial Statement Schedule
Signatures
3
8
15
15
15
15
16
16
17
25
54
54
54
54
54
54
54
55
55
56
58
ITEM 1. BUSINESS
Company Overview
Aware, Inc. (“Aware”, “we”, “us”, “our”, or the “Company”) is a leading, global authentication company that validates and secures identities using proven
and trusted adaptive biometrics. Aware’s software offerings address the growing challenges that government and commercial enterprises face in knowing,
authenticating and securing individuals through frictionless and highly secure user experiences. Aware’s algorithms are based on the most diverse data sets
in the world and can be tailored to the unique security and requirements of each customer. Our portfolio enables government agencies and commercial
entities to enroll, identify, authenticate and enable using biometrics, which comprise physiological characteristics, such as fingerprints, faces, irises and
voices.
•
•
•
•
Enroll: Register biometric identities into an organization’s secure database
Identify: Utilize an organization’s secure database to accurately identify individuals using biometric data
Authenticate: Provide frictionless multi-factor, passwordless access to secured accounts and databases with biometric verification
Enable: Manage the lifecycle of secure identities through optimized biometric interchanges
We have been engaged in this business since 1993. Our comprehensive portfolio of biometric solutions is based on innovative, robust products designed
explicitly for ease of integration, including customer-managed and integration ready biometric frameworks, platforms, Software Development Kits
(“SDKs”) and services. Principal government applications of biometrics systems include border control, visa applicant screening, law enforcement,
national defense, intelligence, secure credentialing, access control, and background checks. Principal commercial applications include mobile enrollment,
user authentication, identity proofing, and secure transaction enablement.
Our products span multiple biometric modalities, including fingerprint, face, iris and voice, and provide interoperable, standards-compliant, field-proven
biometric functionality. Our products are used to capture, verify, format, compress and decompress biometric images as well as aggregate, analyze,
process, match and transport those images and templates within biometric systems. For large deployments, we may provide project management and
software engineering services. We sell our biometrics software products and services globally through a multifaceted distribution strategy using systems
integrators, Original Equipment Manufacturers (“OEMs”), value added resellers (“VARs”), partners, and directly to end user customers.
Aware was incorporated in Massachusetts in 1986. We are headquartered at 76 Blanchard Road in Burlington, Massachusetts, and our telephone number at
this address is (781) 687-0300. Our website address is www.aware.com. The information on our website is not part of this Form 10-K, unless expressly
noted. Our stock is traded on the Nasdaq Global Market under the symbol AWRE.
Principal Products & Services
We sell a broad range of biometrics software products and solutions that perform functions to address our customers’ desired use cases where they are
addressing improved security, data protection, compliance and improved ROI and efficiencies including:
1.
2.
3.
4.
5.
Enrollment of their workforce for benefits and background checks
Enrollment of their customers for a better experience or improved customer service and security
Law enforcement processing and forensic analysis
Trusted remote enrollment where travel or direct contact is not viable
Trusted transactions and authentication that enable physical and logical access control
Our biometrics software solutions are built upon robust componentized products that are customer configurable to give them control so they can uniquely
address their specific customers’ expectations. These solutions and services facilitate customers with an opportunity for a faster go-to-market process to
help reduce their development times and exposure to software support and maintenance risks. Our solutions and services are described below.
3
Integrated Framework and Platform Solutions and Services
Knomi® Mobile Framework
The Knomi mobile biometric authentication framework is built on our hardened biometric SDK components, which are optimized to operate on mobile
devices, and a server that together enable strong, multi-factor, password-free authentication from a mobile device using biometrics. Knomi offers multiple
biometric modality options, including facial recognition, and voice authentication as means to enroll, onboard or authenticate. Knomi software components
can be used in different combinations and configurations to enable either a server-centric architecture, a web-based or a device-centric implementation.
Knomi has primarily been sold as a fixed term license that is priced on a subscription-based model and is also available as a perpetual license .
AwareABIS™ Platform
AwareABIS is an Automated Biometric Identification System (“ABIS”) used for large-scale biometric identification and deduplication using fingerprint,
face, and iris recognition. Leveraging Aware’s Astra™ and BioSP™ products, AwareABIS is a highly scalable platform that performs one-to-many search
or one-to-one match against large stores of biometrics and other identity data. Utilizing highly distributed computing, AwareABIS also enables complex
filtering, and linking operations critical to data preparation and quality assurance functions, such as identity resolution and data deduplication of massive
biometric databases (tens of millions of records). The platform is built upon several mature, high-performance, field-proven applications and algorithms
from Aware. AwareABIS has primarily been sold as perpetual license and is also available as a fixed term license that is priced on a subscription-based
model or the size of the biometric system.
AFIX Suite of Products
Aware’s AFIX suite of products is used for small-scale law enforcement focused biometric identification. AFIX Tracker™ supports fingerprint, palmprint
and latent print identification, designed to serve between 15,000 and 2 million identities. AFIX Tracker is ideal for crime scene investigation applications
in low to moderate sized community populations. The product provides minutiae-based search capability and can be configured as either a standalone
system, or for use with centralized, server-based data stores. AFIX Tracker has primarily been sold as a perpetual license and is also available as a fixed
term license that is priced on a subscription-based model or the size of the biometric system.
BioSP™ - Biometric Services Platform
BioSP is a service-oriented platform used to enable a biometric system with advanced biometric data processing and management functionality in a web
services architecture. It provides workflow, data management and formatting, and other important utilities for large-scale fingerprint recognition, face
recognition, and iris recognition systems. BioSP is well suited for applications that require the collection of biometrics throughout a distributed network,
and subsequent aggregation, analysis, processing, distribution, matching, and sharing of data with other system components. BioSP is modular,
programmable, scalable, and secure, capable of managing all aspects of transaction workflow, including messaging, submissions, responses, and logging.
BioSP has primarily been sold as a perpetual license and is also available as a fixed term license that is priced on users, transactions, or enterprise wide.
BioSP™ Biometric Services Platform - WebEnroll
WebEnroll is a browser-based biometric enrollment and data management solution available as an enhanced version of BioSP™ that utilizes
BioComponents™ for capture of biographic data, fingerprints and facial images in a browser. Each BioComponent performs advanced biometric image
autocapture as well as capture device hardware abstraction. Once images are captured, they are submitted to BioSP, where configurable workflows and
modular software applications are used for processing, routing, and storage of each transaction. WebEnroll has primarily been sold as a perpetual license
and is also available as a fixed term license that is priced on users, transactions, or enterprise wide.
AwareID™
AwareID™ is our new Software-as-a-Service (“SaaS) offering that is used for Aware’s adaptive authentication platform of cloud-based biometric application
programming interfaces (“APIs”) and turnkey services. AwareID provides biometric face and voice analysis for liveness-verification, and document
validation. The platform uses proprietary Adaptive Authentication technology in cloud-based bundles which can be pre-configured and configured by the
4
customer to provide comprehensive authentication functionality with situational awareness for onboarding, access control/management, and authentication
of transactions. These services can be used discretely to enhance investments already in place or combined to provide higher functionality. The AwareID
platform is built on open architecture and interfaces to maximize interoperability and connection to other biometric and/or digital identity applications and
platforms. AwareID is provided as a SaaS offering with usage-based pricing. This wider SaaS offering includes the solutions formerly referred to as
Indigo™ and FortressID™.
Software products
We sell a broad range of software components, or “building blocks”, such as SDKs, APIs, and applications that customers use to streamline or develop their
systems into more effective solutions. These building blocks enable important functions including:
1. Matching of biometric samples against biometric databases.
2.
3.
Enrollment, analysis, and processing of biometric images and identity data on workstations.
Image compression
BioComponents™ bundles our offerings as applications with a user interface. We also license our software unbundled as building blocks and have
primarily sold these offerings as a perpetual license.
Historically, we sold our software products under perpetual or fixed-term licenses. With the introduction of AwareID, we have incorporated SaaS offerings
into our product line-up. While we did not recognize material revenues from our SaaS offerings during 2022, we expect SaaS to become a significant
product offering moving forward.
Building Blocks: SDKs, APIs, Applications, and Subsystems
Biometric Search & Matching SDKs
Our SDKs consist of: i) multiple software libraries; ii) sample applications that show customers how to use the libraries; and iii) documentation.
Customers use our SDKs to design and develop biometrics applications. Nexa™ is our line of biometric search and match SDKs, including
Nexa|Fingerprint™, Nexa|Face™, Nexa|Iris™ and Nexa|Voice™. These products provide high-performance biometric algorithms for fingerprint, facial,
iris and voice identification or authentication. The algorithms in these products convert images into biometric templates, which can then be compared to
templates stored in databases to find matches.
In addition to the Nexa line, we also offer AwareXM™, an interoperable fingerprint matching SDK that provides MINEX-certified, INCITS 378-compliant
fingerprint minutiae extraction, template generation, and fingerprint authentication.
Biometric Enrollment SDKs and APIs
Our suite of enrollment SDKs and APIs performs functions that are critical to biometric enrollment, including (i) image capture and hardware abstraction,
(ii) image quality assurance, (iii) image compression, (iv) mobile enrollment, matching and liveness verification, and (v) fingerprint card processing.
Imaging products
In addition to our biometrics software products, we also sell products used in applications involving medical and advanced imaging. Our principal imaging
product is Aware JPEG 2000, which is based on the JPEG2000 standard. The JPEG2000 standard is an image compression standard and coding system that
was created by the Joint Photographic Experts Group committee in 2000. Our JPEG2000 product is used to compress, store, and display images. Those
images are typically medical images.
Software maintenance
We also provide and sell software maintenance to many of our customers who purchase our software products and solutions. Software maintenance has
historically been made available by contracts that typically have a one-year term during which customers have the right to receive technical support and
software updates for a fixed fee, if and when
5
they become available. Software maintenance is also available as part of a subscription-based solution offering under which customers receive standard
software maintenance plus access to upgrades and product enhancements.
Services
We provide a variety of program management and software engineering services, including: i) project planning and management; ii) system and
architecture design; iii) software design, development, customization, configuration, and testing; and iv) software integration and installation. Services are
sold in conjunction with our products and solutions and are provided for a fixed fee.
Service engagement deliverables may include: i) complete customer software solutions; ii) one or more subsystems comprised of software products that are
integrated within a larger system; iii) custom-configured versions of existing software products; or iv) custom-designed software products. In some cases,
the software resulting from service engagements may form the basis for new or improved Aware software solutions and/or products.
Our customers for services include: i) government agencies; ii) large multinational systems integrators; iii) smaller systems integrators with a particular
market, technology or geographic focus; and iv) commercial partners or providers of products, solutions, and services for themselves or to their end
customers. We provide services directly to end-users or indirectly to end-users through systems integrators or commercial entities or partners. When we
provide services to systems integrators, they are often engaged with the end-user as a prime contractor and are responsible for delivery of a complete
solution, in which case we typically serve as a subcontractor assigned a subset of the total scope of work.
The scope of our services projects varies. A small project might involve configuration and testing of a single software product, taking a small team one
month or less. A large project might involve delivery of a more complex solution comprised of multiple products and subsystems, requiring a larger team
to conduct program and project management, system design, software customization and integration, and taking up to one year or more. Some projects are
followed by subsequent follow-on projects that serve to change or extend the features and functionality of the initial system.
Distribution Methods
We sell our products, solutions and services through three principal channels of distribution:
i)
Systems integrator channel – we sell to systems integrators that incorporate our software products and solutions into biometric systems that are
delivered primarily to government end users.
ii) Direct channel – we sell directly to government and as well as commercial customers.
iii) OEM and VAR channel – we sell to hardware and software solution providers that incorporate our software products into their products for
resale or use in their solution offerings or integrated software products.
Major Customers
All of our revenue in 2022 and 2021 was derived from unaffiliated customers. No customer represented 10% or more of total revenue in either 2022 or
2021. As of December 31, 2022 and 2021, two customers combined for 37% and 32%, respectively, of our net accounts receivable and unbilled
receivables.
Competitive Business Conditions
A significant number of established companies have developed or are developing and marketing software and hardware for biometrics products and
applications that currently compete with or will compete directly with our offerings. We believe that additional competitors will enter the biometrics
market and become significant long-term competitors, and that, as a result, competition will increase. Companies competing with us may introduce
solutions that are competitively priced, have increased performance or functionality or incorporate technological advances we have not yet developed or
implemented. Our current principal competitors include:
•
Diversified technology providers that offer integrated biometrics solutions to governments, law enforcement agencies and other organizations.
This group of competitors includes companies such as Idemia, Thales, and NEC.
6
•
Component providers that offer biometrics software and hardware components for fingerprint, facial, iris and voice biometric identification.
This group of competitors includes companies such as FaceTec, iProov, and Innovatrics.
We expect competition to intensify in the near term in the biometrics market. Many current and potential competitors have substantially greater financial,
marketing, and research resources than we have. Moreover, low-cost foreign competitors have demonstrated a willingness to sell their products at
significantly reduced prices. To compete effectively in this environment, we must continually develop and market new and enhanced solutions and
technologies at competitive prices and must have the resources available to invest in significant research and development activities. Our failure to compete
successfully could cause our revenues and market share to decline.
Intellectual Property
We rely on a combination of nondisclosure agreements and other contractual provisions, as well as patent, trademark, trade secret and copyright law to
protect our proprietary rights. We have an active program to protect our proprietary technology through the filing of patents. As of December 31, 2022, we
had approximately 79 U.S. and foreign patents and approximately 8 pending patent applications. Our patents and patent applications pertain primarily to
biometrics and imaging compression. We have let certain patents expire that are not aligned with our business and are not relevant to our current or future
activities.
Although we have patented certain aspects of our technology, we rely primarily on trade secrets to protect our intellectual property. We attempt to protect
our trade secrets and other proprietary information through agreements with our customers, suppliers, employees and consultants, and through security
measures. Each of our employees is required to sign a non-disclosure agreement. Although we intend to protect our rights vigorously, we cannot guarantee
that these measures will be successful. In addition, effective intellectual property protection may be unavailable or limited in certain foreign countries.
Third parties may assert exclusive patent, copyright and other intellectual property rights to technologies that are important to us. We may receive claims
from third parties suggesting that we may be obligated to license such intellectual property rights. If we were found to have infringed any third party’s
patents, we could be subject to substantial damages or an injunction preventing us from conducting our business.
Employees
As of December 31, 2022, we employed 82 people, all based in the U.S, including 46 in engineering and research, 24 in sales and marketing, and 12 in
finance and administration. Of these employees, 64 were based in Massachusetts and 18 were based outside of Massachusetts. None of our employees are
represented by a labor union. We consider our employee relations to be good.
We believe that our future success will depend in large part on the service of our technical, sales, marketing and senior management personnel and upon our
ability to retain highly qualified technical, sales and marketing and managerial personnel. We cannot guarantee that we will be able to retain our key
managers and employees or that we will be able to attract and retain additional highly qualified personnel in the future.
Available Information
Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, proxy statements, and amendments to reports filed
pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended, are made available free of charge on or through our website at
www.aware.com as soon as reasonably practicable after such reports are filed with, or furnished to, the Securities and Exchange Commission (“the SEC”).
The SEC also maintains a website, www.sec.gov, that contains reports and other information regarding issuers that file electronically with the SEC.
Copies of our (i) Corporate Governance Principles, (ii) charters for the Audit Committee, Compensation Committee, and Nominating Committee, and (iii)
Code of Ethics are available in the Investor Relations section of our website at www.aware.com.
7
ITEM 1A. RISK FACTORS
Actual or threatened public health emergencies could harm our business.
Our business and operations could be adversely affected by health epidemics, including the current COVID-19 pandemic, impacting the markets and
communities in which we, our partners and clients operate. The COVID-19 pandemic has caused significant disruption to the business and financial
markets, and there remains uncertainty about the duration of this disruption on both a nationwide and global level, as well as the ongoing effect on our
business. The full extent to which the COVID-19 pandemic will directly or indirectly impact our business, results of operations and financial condition will
depend on future developments that are uncertain and unpredictable. We continue to monitor the COVID-19 situation and potential effects on our business
and operations. While the spread and impact of COVID-19 has stabilized, there is no guarantee that a future outbreak of this or any other widespread
epidemics will not occur.
Our operating results may fluctuate significantly from period-to-period and are difficult to predict.
Individual orders can represent a meaningful percentage of our revenues and operating results in any single period and the timing of the receipt of those
orders is difficult to predict. The failure to close an order or the deferral or cancellation of an order can result in revenue and net income shortfalls for that
quarter. We base our current and future expense levels on our internal operating plans and sales forecasts, and our operating costs are to a large extent fixed.
As a result, we may not be able to sufficiently reduce our costs in any quarter to adequately compensate for an unexpected near-term shortfall in revenues,
and even a small shortfall could disproportionately and adversely affect our financial results for that quarter.
Our financial results may be negatively affected by a number of factors, including the following:
•
•
•
•
•
•
•
•
•
•
any lack or reduction of government funding and the political, budgetary and purchasing constraints of government customers who purchase
products and services directly or indirectly from us;
the terms of customer contracts that affect the timing of revenue recognition;
the size and timing of our receipt of customer orders;
significant fluctuations in demand for our products and services;
any loss of a key customer or one of its key customers;
new competitors entering our markets, or the introduction of enhanced solutions from new or existing competitors;
competitive pressures on selling prices;
any cancellations, or delays of orders or contract amendments by government customers;
higher than expected costs, asset write-offs, and other one-time financial charges; and
general economic trends and other factors.
As a result of these factors, we believe that period-to-period comparisons of our revenue levels and operating results are not necessarily meaningful. You
should not rely on our quarterly revenue and operating results to predict our future performance.
We derive a significant portion of our revenue directly or indirectly from government customers, and our business may be adversely affected by
changes in the contracting or fiscal policies of those governmental entities.
We derive a significant portion of our revenue directly or indirectly from federal, international, state and local governments. We believe that the success
and growth of our business will continue to depend on government customers purchasing our products and services either directly from us or indirectly
through our channel partners. Changes in government contracting policies or government budgetary constraints may adversely affect our financial
performance. Among the factors that could adversely affect our business are:
8
•
•
•
•
•
•
•
•
changes in fiscal policies or decreases in available government funding,
changes in government funding priorities;
changes in government programs or applicable requirements;
the adoption of new laws or regulations or changes to existing laws or regulations relating to the provision of biometrics services or the use of
biometric data;
changes in political or social attitudes with respect to security and defense issues;
changes in audit policies and procedures of government entities;
potential delays or changes in the government appropriations process; and
delays in the payment of our invoices by government payment offices.
These and other factors could cause government customers or our channel partners to reduce purchases of products and services from us which would have
a material adverse effect on our business, financial condition and operating results.
We derive a significant portion of our revenue from third party channel partners.
Our future results depend upon the continued successful distribution of our products through a channel of systems integrators and OEM partners. Systems
integrators, including VARs, use our software products as a component of the biometrics systems they deliver to their customers. OEMs embed our
software products in their technology devices or software products. These channel partners typically sell their products and services to government
customers.
Our failure to effectively manage our relationships with these third parties could impair the success of our sales, marketing and support activities.
Moreover, the activities of these third parties are not within our direct control. The occurrence of any of the following events could have a material adverse
effect on our business, financial condition and operating results:
•
•
•
•
•
•
a reduction in sales efforts by our partners;
the failure of our partners to win government awards in which our products are used;
a reduction in technical capabilities or financial viability of our partners;
a misalignment of interest between us and any of our partners;
the termination of our relationship with a major systems integrator or OEM; or
any adverse effect on a partner’s business related to competition, pricing or other factors.
A significant commercial market for biometrics technology may not develop, and, even if it does, there can be no assurance our biometrics technology
will be successful.
A component of our strategy to grow our revenue includes expansion into commercial markets. To date, biometrics technology has received only limited
acceptance and slow adoption in these markets. Although the recent appearance of biometric readers on popular consumer products, such as smartphones,
has increased interest in biometrics as a means of authenticating and/or identifying individuals, commercial markets for biometrics technology are still
developing and evolving. Biometrics-based solutions compete with more traditional security methods including keys, cards, personal identification
numbers, passwords and security personnel. Acceptance of biometrics as an alternative to such traditional methods depends upon a number of factors
including: i) the performance and reliability of biometric solutions; ii) costs involved in adopting and integrating biometric solutions; iii) public concerns
regarding privacy; and iv) potential privacy legislation.
For these reasons, we are uncertain whether there will be significant demand for biometrics technology from commercial markets. Moreover, even if there
is significant demand, there can be no assurance that our biometrics products will achieve market acceptance.
9
If the biometrics market does not experience significant growth or if our products do not achieve broad acceptance both domestically and
internationally, we may not be able to grow our business.
Our revenues are derived primarily from sales of biometrics products and services. Our expectations regarding the future growth rate or the size of the
biometrics market may not be accurate. The expansion of the biometrics market and the market for our biometrics products and services depends on a
number of factors, such as:
•
•
•
•
•
•
•
•
the cost, performance and reliability of our products and services and the products and services offered by our competitors;
the continued growth in demand for biometrics solutions within the government and law enforcement markets, as well as the development and
growth of demand for biometric solutions in markets outside of government and law enforcement;
customers’ perceptions regarding the benefits of biometrics solutions;
public perceptions regarding the intrusiveness of these solutions and the manner in which organizations use the biometric information collected;
public perceptions regarding the confidentiality of private information;
proposed or enacted legislation related to privacy of biometric information;
customers’ satisfaction with biometrics solutions; and
marketing efforts and publicity regarding biometrics solutions.
Even if biometrics solutions gain wide market acceptance, our solutions may not adequately address market requirements and may not continue to gain
market acceptance. If biometrics solutions generally or our solutions specifically do not gain wide market acceptance, we may not be able to achieve our
anticipated level of growth and our revenues, and our results of operations would be adversely affected.
We face intense competition from other biometrics solutions providers.
A significant number of established companies have developed or are developing and marketing software and hardware for biometrics products and
applications that currently compete with or will compete directly with our offerings. We believe that additional competitors will enter the biometrics
market and become significant long-term competitors, and that, as a result, competition will increase. Companies competing with us may introduce
solutions that are competitively priced, have increased performance or functionality or incorporate technological advances we have not yet developed or
implemented. Our current principal competitors include:
•
•
Diversified technology providers that offer integrated biometrics solutions to governments, law enforcement agencies and other organizations.
This group of competitors includes companies such as Idemia, Thales, and NEC.
Component providers that offer biometrics software and hardware components for fingerprint, facial, iris and voice biometric identification.
This group of competitors includes companies such as FaceTec, iProov, and Innovatrics.
We expect competition to intensify in the near term in the biometrics market. Many current and potential competitors have substantially greater financial,
marketing, and research resources than we have. Moreover, low-cost foreign competitors from developing economies and other countries have
demonstrated a willingness to sell their products at significantly reduced prices. To compete effectively in this environment, we must continually develop
and market new and enhanced solutions and technologies at competitive prices and must have the resources available to invest in significant research and
development activities. Our failure to compete successfully could cause our revenues and market share to decline.
The biometrics industry is characterized by rapid technological change and evolving industry standards, which could render our existing products
obsolete.
Our future success will depend upon our ability to develop and introduce a variety of new capabilities and enhancements to our existing products in order
to address the changing and sophisticated needs of the marketplace. Frequently, technical development programs in the biometrics industry require
assessments to be made of the future
10
direction of technology, which is inherently difficult to predict. Delays in introducing new products and enhancements, the failure to choose correctly
among technical alternatives or the failure to offer innovative products or enhancements at competitive prices may cause customers to forego purchases of
our products and purchase our competitors’ products. We may not have adequate resources available to us or may not adequately keep pace with
appropriate requirements in order to effectively compete in the marketplace.
Our software products may have errors, defects or bugs, which could result in delayed or lost revenue, expensive correction, liability to our customers,
and claims against us.
Despite testing, complex software products such as ours may contain errors, defects, or bugs, which may only be discovered after they have been installed
and used by our customers. Defects in the products that we develop and sell to our customers could require expensive corrections and result in delayed or
lost revenue, adverse customer reaction and negative publicity about us or our products and services. Customers who are not satisfied with any of our
products may also bring claims against us for damages, which, even if unsuccessful, would likely be time-consuming to defend, and could result in costly
litigation and payment of damages. Such claims could harm our reputation, financial results and competitive position.
Our business may be adversely affected by our use of open-source software.
The software industry is making increasing use of open-source software in the development of products. We also license and integrate certain open-source
software components from third parties into our software. Open-source software license agreements may require that the software code in these
components or the software into which they are integrated be freely accessible under open-source terms. Many features we may wish to add to our products
in the future may be available as open-source software and our development team may wish to make use of this software to reduce development costs and
speed up the development process. While we carefully monitor the use of all open-source software and try to ensure that no open-source software is used in
such a way as to require us to disclose the source code to the related product, such use could inadvertently occur. If we were required to make our software
freely available, our business could be seriously harmed.
We rely on third-party software to develop and provide our solutions and significant defects in third-party software could harm our business.
We rely on software licensed from third parties to develop and offer some of our solutions. In addition, we may need to obtain future licenses from third
parties to use software or other intellectual property associated with our solutions. We cannot assure you that these licenses will be available to us on
acceptable terms, without significant price increases or at all. Any loss of the right to use any such software or other intellectual property required for the
development and maintenance of our solutions could result in delays in the provision of our solutions until equivalent technology is either developed by us
or, if available from others, is identified, obtained, and integrated, which could harm our business. Any errors or defects in third-party software could result
in errors or a failure of our solutions, which could harm our business.
We rely on third-party relationships.
We have a number of relationships with third parties that are significant to our sales, marketing, support, and product development efforts, including
hosting facilities for our cloud-based services. We rely on software and hardware vendors, large system integrators, and technology consulting firms to
supply marketing and sales opportunities for our direct sales force and to strengthen our offerings using industry-standard tools and utilities. We also have
relationships with third parties that distribute our products. There can be no assurance that these companies, many of which have far greater financial and
marketing resources than us, will not develop or market offerings that compete with ours in the future or will not otherwise end or limit their relationships
with us. Further, the use of third-party hosting facilities requires us to rely on the functionality and availability of the third parties’ services, as well as their
data security, which despite our due diligence, may be or become inadequate.
Part of our future business is dependent on market demand for, and acceptance of, the cloud-based model for the use of software.
We expect to derive a growing percentage of our revenue from the sale of cloud-based services. As a result, widespread acceptance and use of the cloud-
based business model is critical to our future growth and success. Under the perpetual or fixed term license model for software procurement, users of the
software typically run applications on their hardware. Because companies are generally predisposed to maintaining control of their IT systems and
infrastructure,
11
there may be resistance to the concept of accessing the functionality that software provides as a service through a third party. If the market for cloud-based,
software solutions ceases to grow or grows slower than we currently anticipate, demand for our services could be negatively affected.
Our operational systems, networks and products are subject to continually evolving cybersecurity or other technological risks, which could result in the
disclosure of our or our customers' confidential information, damage to our reputation, additional costs, regulatory penalties and financial losses.
Our products, services and systems may be used in critical company, customer or third-party operations, or involve the storage, processing and transmission
of sensitive data, including valuable intellectual property, other proprietary or confidential data, regulated data, and personal information of employees,
customers and others. Successful breaches, employee malfeasance, or human or technological error could result in, for example, unauthorized access to,
disclosure, modification, misuse, loss, or destruction of company, customer, or other third party data or systems; theft of sensitive, regulated, or confidential
data including personal information and intellectual property; the loss of access to critical data or systems through ransomware, destructive attacks or other
means; and business delays, service or system disruptions or denials of service.
If we or third parties with which we do business were to fall victim to successful cyber-attacks or experience other cybersecurity incidents, including the
loss of individually identifiable customer or other sensitive data, we may incur substantial costs and suffer other negative consequences, which may include
remediation costs, such as liability for stolen assets or information, repairs of system damage, and incentives to customers or business partners in an effort
to maintain relationships after an attack as well as litigation and legal risks, including regulatory actions by state and federal regulators.
Our intellectual property is subject to limited protection.
Because we are a technology provider, our ability to protect our intellectual property and to operate without infringing the intellectual property rights of
others is critical to our success. We regard our technology as proprietary. We rely on a combination of U.S. and worldwide patent, trade secret, copyright,
and trademark law as well as confidentiality agreements to protect our proprietary technology. We cannot assure you that we will be able to enforce the
patents we own against third parties. Some foreign countries do not currently provide effective legal protection for intellectual property and our ability to
prevent the unauthorized use of our products in those countries is therefore limited. Despite our efforts, these measures can only provide limited protection.
Unauthorized third parties may try to copy or reverse engineer portions of our products or otherwise obtain and use our intellectual property. If we fail to
protect our intellectual property rights adequately, our competitors may gain access to our technology, and our business would thus be harmed.
In the future, we may be involved in legal action to enforce our intellectual property rights relating to our patents, copyrights or trade secrets. Any such
litigation could be costly and time-consuming for us, even if we were to prevail. Moreover, even if we are successful in protecting our proprietary
information, our competitors may independently develop technologies substantially equivalent or superior to our technology. Accordingly, despite our
efforts, we may be unable to prevent third parties from infringing upon or misappropriating our intellectual property or otherwise gaining access to our
technology. The misappropriation of our technology or the development of competitive technology could seriously harm our business.
We may be sued by third parties for alleged infringement of their proprietary rights.
We may be subject to claims that our technology and products infringe the intellectual property rights of others. A large and increasing number of
participants in the technology industry, including companies known as non-practicing entities, have applied for or obtained patents. Some of these patent
holders have demonstrated a readiness to commence litigation based on allegations of patent infringement. Third parties have asserted against us in the
past and may assert against us in the future patent, copyright and other intellectual property rights to technologies that are important to our business.
Intellectual property rights can be uncertain and involve complex legal and factual questions. Moreover, intellectual property claims, with or without merit,
can be time-consuming and expensive to litigate or settle, and could divert management attention away from the execution of our business plan. If we were
found to have infringed the proprietary rights of others, we could be subject to substantial damages or an injunction preventing us from conducting our
business.
12
If we are unable to attract and retain key personnel, our business could be harmed.
If any of our key employees were to leave, we could face substantial difficulty in hiring qualified successors and could experience a loss in productivity
while any successor obtains the necessary training and experience. Our employment relationships are at-will and we have had key employees leave in the
past. We cannot assure you that one or more key employees will not leave in the future. We intend to continue to hire additional highly qualified personnel,
including software engineers and sales personnel, but may not be able to attract, assimilate or retain qualified personnel in the future. Any failure to attract,
integrate, motivate and retain these employees could harm our business.
Our business may be affected by government laws and regulations.
Extensive regulation under federal, state, and foreign law has adversely affected us and could further adversely affect us in ways that are difficult for us to
predict. More specifically, we are subject to regulatory environment changes regarding privacy and data protection that could have a material impact on our
results of operations. These regulatory changes may potentially involve new regulatory issues/requirements such as the EU General Data Protection
Regulation (“GDPR”), the California Privacy Rights Act (“CPRA”) and other comprehensive state privacy laws, the Illinois Biometric Privacy Act, Texas
Statute on the Capture or Use of Biometric Identifier, State of Washington H.B. 1493, Brazil’s General Data Protection Law (“LGPD”) and any other state,
federal or foreign regulations governing the collection, use and storage of biometric data. The potential costs of compliance with or imposed by
new/existing regulations and policies that are applicable to us, or fines and penalties to which we may become subject if we fail to comply with those
regulations and polices, may affect the use of our products and services and could have a material adverse impact on our results of operations.
In addition, our business may also be adversely affected by: i) the imposition of tariffs, duties and other import restrictions on goods and services we
purchase from non-domestic suppliers; or ii) the imposition of economic sanctions on existing or potential customers or suppliers, or iii) by the imposition
of export restrictions on products we sell internationally. Changes in current or future laws or regulations, in the United States or elsewhere, could seriously
harm our business.
Adverse economic conditions could harm our business.
Unfavorable changes in economic conditions, including recessions, inflation, turmoil in financial markets, changes caused by global crisis such as the
COVID-19 pandemic, the ongoing conflict between Russia and Ukraine and resulting economic sanctions, the Taliban’s takeover of Afghanistan, or other
changes in economic conditions, could harm our business, results of operations, and financial conditions as a result of:
•
•
•
•
•
•
reduced demand for our products;
increased risk of order cancellations or delays;
increased pressure on the prices for our products;
greater difficulty in collecting accounts receivable;
risks to our liquidity, including the possibility that we might not have access to our cash when needed; and
rising interest rates, recessionary cycles, and inflationary pressures, that could make our products more expensive or could increase our costs.
We are unable to predict whether or when any such adverse economic conditions could occur in the U.S. or other countries; and if they do occur, we cannot
predict the timing, duration, or severity.
We may not realize the anticipated benefits of our acquisitions.
We may make acquisitions of companies that offer complementary products, services, and technologies such as our acquisitions of FortressID in December
of 2021 and AFIX in November of 2020. The ultimate success of our acquisitions depends, in part, on our ability to realize the anticipated synergies, cost
savings and growth opportunities from integrating acquired businesses or assets into our existing businesses. However, the acquisition and successful
integration of independent businesses or assets is a complex, costly and time-consuming process, and the benefits we realize may not exceed the costs of
the acquisition. The risk and difficulties associated with acquiring and integrating companies and other assets include, among others, difficulties
assimilating the operations and personnel of acquired
13
companies, challenges in realizing the value of the acquired assets relative to the price paid, distraction of management from our ongoing businesses and
potential product disruptions associated with the sale of the acquired company’s products. These factors could have a material adverse effect on our
business, financial condition, operating results and cash flows. Additionally, our acquisitions have provided, in the case of Fortress ID, and may in the
future provide for future contingent acquisition payments, based on the achievement of performance targets or milestones. These arrangements can impact
or restrict integration of acquired businesses and can result in disputes, including litigation. Additionally, regardless of the form of consideration we pay,
acquisitions and investments could negatively impact our net income and earnings per share.
We may have additional tax liabilities.
We are subject to income taxes in the United States. Significant judgments are required in determining our provisions for income taxes. In the course of
preparing our tax provisions and returns, we must make calculations where the ultimate tax determination may be uncertain. Our tax returns are subject to
examination by the Internal Revenue Service (“IRS”) and state tax authorities. There can be no assurance as to the outcome of these examinations. If the
ultimate determination of taxes owed is for an amount in excess of amounts previously accrued, our operating results, cash flows, and financial condition
could be adversely affected.
The market price of our common stock has been and may continue to be subject to wide fluctuations, and this may make it difficult for shareholders to
resell the common stock when they want or at prices they find attractive.
The market price of our common stock, like that of other technology companies, is volatile and is subject to wide fluctuations in response to a variety of
factors, including:
•
•
•
•
•
•
•
variations in operating results;
announcements of technological innovations or new products by us or our competitors,
changes in customer relationships, such as the loss of a key customer;
recruitment or departure of key personnel;
trading volume of our common stock;
price and volume fluctuation in the overall stock market;
corporate actions we may initiate, such as acquisitions, stock sales or repurchases, dividend declarations, or corporate reorganizations.
Our stock price may also be affected by broader market trends unrelated to our performance. As a result, purchasers of our common stock may be unable at
any given time to sell their shares at or above the price they paid for them. Moreover, companies that have experienced volatility in the market price of their
stock often are subject to securities class action litigation. If we were the subject of such litigation, it could result in substantial costs and divert
management's attention and resources.
If we are unable to maintain effective internal controls over financial reporting, investors could lose confidence in the reliability of our financial
statements, which could result in a decline in the price of our common stock.
As a public company, we are required to enhance and test our financial, internal and management control systems to meet obligations imposed by the
Sarbanes-Oxley Act of 2002. Consistent with the Sarbanes-Oxley Act and the rules and regulations of the SEC, management's assessment of our internal
controls over financial reporting is required in connection with our filing of our Annual Report on Form 10-K. If we are unable to identify, implement and
conclude that we have effective internal controls over financial reporting, investors could lose confidence in the reliability of our financial statements,
which could result in a decrease in the value of our common stock. Our assessment of our internal controls over financial reporting may also uncover
weaknesses or other issues with these controls that could also result in adverse investor reaction.
We must make judgments in the process of preparing our financial statements.
We prepare our financial statements in accordance with generally accepted accounting principles and certain critical accounting policies that are relevant to
our business. The application of these principles and policies requires us to make significant judgments and estimates. The most significant estimates
included in the financial statements pertain
14
to revenue recognition, reserves for doubtful accounts, valuation of acquired assets and assumed liabilities in business combinations, valuation of
contingent acquisition payments, valuation of investment in note receivable, goodwill and long-lived asset impairment and valuation allowance for deferred
income tax assets. Actual results could differ from those estimates. In the event that our judgments and estimates differ from actual results, we may have
to change them, which could materially affect our financial position and results of operations.
Moreover, accounting standards have been subject to rapid change and evolving interpretations by accounting standards setting organizations over the past
few years. The implementation of new accounting standards requires us to interpret and apply them appropriately. If our current interpretations or
applications are later found to be incorrect, we may have to restate our financial statements and the price of our stock could decline.
Our officers, directors and holders of 5% of outstanding shares together beneficially own a significant portion of our common stock and, as a result,
can exercise control over stockholder and corporate actions.
Our officers and directors and the holders of at least 5% of our outstanding shares currently beneficially own approximately 48% of our outstanding
common stock, and 60% on a fully diluted basis assuming the exercise of both vested and unvested options. As such, they have a significant influence over
most matters requiring approval by stockholders, including the election of directors and approval of significant corporate transactions. This concentration
of ownership may also have the effect of delaying or preventing a change in control, which in turn could have a material adverse effect on the market price
of our common stock or prevent stockholders from realizing a premium over the market price for their shares.
ITEM 1B. UNRESOLVED STAFF COMMENTS
Not applicable.
ITEM 2. PROPERTIES
We lease approximately 20,730 rentable square feet in Burlington, Massachusetts, which we use as our headquarters. We believe that this facility is
adequate for our current needs and for the foreseeable future. See Note 10 to our audited financial statements included elsewhere in this Annual Report on
Form 10-K for more information regarding our leases.
ITEM 3. LEGAL PROCEEDINGS
From time to time, we are involved in litigation incidental to the conduct of our business. We are not party to any lawsuit or proceeding that, in our
opinion, is likely to materially impact us or our business.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
15
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES
Our common stock is the only class of stock we have outstanding, and it trades on the Nasdaq Global Market under the symbol AWRE.
As of March 1, 2023, we had approximately 75 shareholders of record. This number does not include shareholders who hold our shares in a “nominee” or
“street” name. We paid no dividends in 2022 or 2021. We anticipate that we will continue to reinvest any earnings to finance our future operations
although we may also pay special cash dividends if our board of directors deems it appropriate.
Period
October 1 through 31, 2022
November 1 through 30, 2022
December 1 through 31, 2022
Total
Issuer Purchases of Equity Securities
(a) Total
Number
of Shares
Purchased
(b) Average
Price Paid
per Share
(c) Total Number of Shares
Purchased as Part of Publicly
Announced Plans or Programs
(1)
(d) Maximum Number (or Approximate
Dollar Value) of Shares That May Yet
Be Purchased Under the Plans or
Programs
90,144 $
397,671 $
140,825 $
628,640 $
1.82
1.81
1.90
1.83
90,144
397,671
140,825 $
628,640
9,571,921
9,407,859
8,688,074
On March 3, 2022, we announced that our board of directors had approved the repurchase of up to $10,000,000 of our common stock from time to time through December
31, 2023.
ITEM 6. [RESERVED]
16
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth, for the years indicated, certain line items from our consolidated statements of operations stated as a percentage of total
revenue:
Revenue:
Software licenses
Software maintenance
Services and other
Total revenue
Costs and expenses:
Cost of services and other
Research and development
Selling and marketing
General and administrative
Gain on sale of fixed assets
Total costs and expenses
Operating loss
Interest and other income
Loss before provision for (benefit from) income taxes
Provision for (benefit from) income taxes
Net loss
Year ended
December 31,
2022
2021
46 %
45
9
100
8
58
43
40
(35 )
114
(14 )
3
(11 )
0
(11 %)
47 %
40
13
100
7
55
38
37
-
137
(37 )
-
(37 )
(2 )
(35 %)
Summary of Operations
We are primarily engaged in the development and sale of biometrics products, solutions and services. Our software products are used in government and
commercial systems and applications and fulfill a broad range of functions critical to secure biometric enrollment, authentication, identification and
transactions. Principal government applications of biometrics systems include border control, visa applicant screening, law enforcement, national defense,
intelligence, secure credentialing, access control, and background checks. Principal commercial applications include: i) user enrollment and authentication
used for login to mobile devices, computers, networks, and software programs; ii) user authentication for financial transactions and purchases (online and
in-person); iii) physical access control to buildings; and iv) identity proofing of prospective employees and customers. We sell our biometrics software
products and services globally through a multifaceted distribution strategy using systems integrators, OEMs, VARs, partners, and directly to end user
customers. We also derive a portion of our revenue from the sale of imaging software licenses to OEMs and systems integrators that incorporate our
software into medical imaging products and medical systems.
Summary of Financial Results
We used revenue and operating loss to summarize financial results over the past two years as we believe these measurements are the most meaningful way
to understand our operating performance.
2022 compared to 2021
Revenue and operating loss in 2022 were $16.0 million and $2.2 million, respectively, which compared to revenue and operating loss in 2021 of $16.9
million and $6.1 million, respectively.
Lower revenue in 2022 as compared to 2021 was primarily due to decreases in revenue from our perpetual software licenses of $0.8 million and services
and other of $0.7 million, which was partially offset by increases in software maintenance revenue of $0.4 million and revenue from subscription-based
licenses of $0.2 million. Lower operating loss in 2022 as compared 2021 was primarily due to a $5.7 million gain we recorded related to the sale of our
corporate office, which was partially offset by a decrease in revenue of $0.8 million, increased sales and marketing expense of $0.6 million and increased
general and administrative expense of $0.3 million.
17
Software License Revenue
Software license revenue consists of revenue from the sale of biometrics and imaging software products. Sales of software products depend on our ability
to win proposals to supply software for biometrics systems projects either directly to end user customers or indirectly through channel partners.
Software license revenue decreased 7% from $8.0 million in 2021 to $7.4 million in 2022. As a percentage of total revenue, software license revenue
decreased from 47% in 2021 to 46% in 2022. The $0.6 million decrease in software license revenue was due primarily to a $0.8 million decrease in
perpetual licenses sales, which was partially offset by a $0.2 million increase in subscription-based license sales. For the years ended December 31, 2022
and 2021, we generated a de minimis amount of revenue from SaaS contracts.
Software Maintenance Revenue
Software maintenance revenue consists of revenue from the sale of software maintenance contracts. Software maintenance contracts entitle customers to
receive software support and software updates, if and when they become available, during the term of the contract.
Software maintenance revenue increased 6% from $6.7 million in 2021 to $7.1 million in 2022. As a percentage of total revenue, software maintenance
revenue increased from 40% in 2021 to 44% in 2022. The dollar increase in software maintenance revenue was primarily due to software maintenance
renewals related to perpetual license sales.
A majority of our customers purchase software maintenance contracts when they initially purchase software licenses. Since our software is used in active
biometrics systems, many of our customers continue to renew their maintenance contracts in subsequent years while systems remain operational.
Services and Other Revenue
Services revenue consists of fees we charge to perform software development, integration, installation, and customization services. Similar to software
license revenue, services revenue depends on our ability to win biometrics systems projects either directly with end user customers or in conjunction with
channel partners. Other revenue consists of hardware fees that are included with some of our software license. Services and other revenue fluctuate when
we commence new projects and/or when we complete projects that were started in previous periods.
Services and other revenue decreased 31% from $2.2 million in 2021 to $1.5 million in 2022. As a percentage of total revenue, services and other revenue
decreased from 13% in 2021 to 9% in 2022. The dollar decrease in services and other revenue was primarily due to fewer active contracts with services
during the period.
Cost of Services and Other Revenue
Cost of services and other revenue consists primarily of engineering costs to perform customer services projects. Such costs primarily include: i)
engineering salaries, stock-based compensation, fringe benefits, and facilities; ii) engineering consultants and contractors; iii) software license fees; and iv)
hardware costs.
Cost of services and other revenue increased 4% from $1.2 million in 2021 to $1.3 million in 2022. When compared to services and other revenue, cost of
services and other revenue as a percentage increased from 55% in 2021 to 83% in 2022, which resulted in gross margins decreasing from 45% in 2021 to
17% in 2022. The dollar increase in cost of services and other revenue was primarily due to due to higher payroll related costs.
Gross margins on services and other revenue are a function of: i) the nature of the projects; ii) the level of engineering difficulty and labor hours required to
complete project tasks; and iii) how much we were able to charge. Gross margins in these years reflect the profitability mix of customer projects. We
expect that gross margins on services and other revenue will continue to fluctuate in future periods based on the nature, complexity, and pricing of future
projects.
Research and Development Expense
Research and development expense consists of costs for: i) engineering personnel, including salaries, stock-based compensation, fringe benefits, and
facilities; ii) engineering consultants and contractors, and iii) other engineering expenses such as supplies, equipment depreciation, dues and memberships
and travel. Engineering costs incurred to develop our technology and products are classified as research and development expense. As described in the cost
of services section, engineering costs incurred to provide engineering services for customer projects are classified as cost of services and are not included in
research and development expense.
18
The classification of total engineering costs to research and development expense and cost of services for the years ended December 31, 2022 and 2021
was (in thousands):
Research and development expense
Cost of services and other
Total engineering costs
Years ended
December 31,
2022
2021
$
$
9,234 $
1,260
10,494 $
9,259
1,210
10,469
Total engineering costs were $10.5 million in both 2021 and 2022. As a percentage of total revenue, total engineering costs increased from 62% in 2021 to
66% in 2022.
Our engineering headcount decreased slightly from 49 in 2021 to 46 in 2022. We believe our engineering organization was adequately staffed as of
December 31, 2022.
As we described in the Part I—Business of this Form 10-K, we intend to introduce new products that will allow us to offer more complete biometrics
solutions. We believe this strategy will allow us to sell more software into biometrics systems projects in order to grow our revenue. Our preference is to
develop such products internally, however to the extent we are unable to do that, we may purchase or license technologies from third parties. We anticipate
that we will continue to focus our future research and development activities on enhancing existing products and developing new products. We expect
research and development expenses to increase in absolute dollars, but to decrease as a percentage of net revenues.
Selling and Marketing Expense
Selling and marketing expense primarily consists of costs for: i) sales and marketing personnel, including salaries, sales commissions, stock-based
compensation, fringe benefits, travel, and facilities; and ii) advertising and promotion expenses.
Selling and marketing expense increased 10% from $6.3 million in 2021 to $7.0 million in 2022. As a percentage of total revenue, selling and marketing
expense increased from 38% in 2021 to 43% in 2022. The dollar increase in selling and marketing expense was primarily due to $0.3 million in severance
costs related to the termination of our Chief Commercial Officer position in August 2022 and $0.3 million in increased costs related to marketing
promotions. We expect to expand our sales and marketing force to pursue future opportunities.
General and Administrative Expense
General and administrative expense consists primarily of costs for: i) officers, directors and administrative personnel, including salaries, bonuses, director
compensation, stock-based compensation, fringe benefits, and facilities; ii) professional fees, including legal and audit fees; iii) public company expenses;
and iv) other administrative expenses, such as insurance costs and bad debt provisions.
General and administrative expense increased by 5% from $6.2 million in 2021 to $6.4 million in 2022. As a percentage of total revenue, general and
administrative expense increased from 37% in 2021 to 40% in 2022. The increase in general and administrative expense in 2022 was primarily due to bad
debt expense increases of $0.4 million. Fluctuations of general and administrative expenses are expected depending on specific activities in a period. We
expect general and administrative expenses to increase in absolute dollars, but to decrease as a percentage of total revenue.
Gain on sale of fixed assets
In July 2022, we sold our corporate headquarters in Bedford, MA for total proceeds of $8.9 million less a brokerage commission of $0.3 million. At the
time of the sale, we disposed of all building and land related assets. The net
19
book value of all assets disposed of was $2.9 million. We recorded a net gain on the sale of fixed assets of $5.7 million for the year ended December 31,
2022.
Interest Income
Interest income increased from four thousand dollars in 2021 to $0.5 million in 2022. The dollar increase in interest income was primarily due to higher
interest rates related to our marketable securities of U.S Treasury notes and bonds and corporate bonds as well as higher interest rates within our money
market accounts.
Income Taxes
We are subject to income taxes in the United States and we use estimates in determining our provisions for income taxes. We account for income taxes
using the asset and liability method for accounting and reporting income taxes. Deferred tax assets and liabilities are recognized based on temporary
differences between the financial reporting and income tax bases of assets and liabilities using statutory rates.
A discussion of income taxes for the years ended December 31, 2022 and 2021 follows:
Year ended December 31, 2022. Total income tax expense for the year ended December 31, 2022 was $49 thousand. The income tax expense for 2022
relates to the limitations on the usage of net operating loss carryforwards generated in years beginning after December 31, 2017.
Year ended December 31, 2021. Total income tax benefit for the year ended December 31, 2021 was $0.3 million. The income tax benefit for 2021 relates
to a release of our valuation allowance as a result of deferred taxes recorded as part of the FortressID acquisition.
LIQUIDITY AND CAPITAL RESOURCES
In recent years, we have financed the company with our cash and cash equivalent balances. Cash flows from operating, investing and financing activities
are described below.
Cash flows from operating activities
A discussion of cash flow from operating activities for each of the last two years is as follows:
Year ended December 31, 2022. Cash used in operating activities was $5.0 million in 2022. Cash used by operations was primarily the result of $1.7
million of net loss plus the impact of a $5.7 million gain on the sale of fixed assets, which was partially offset by the add back of $1.7 million of non-cash
stock-based compensation and $0.8 million for non-cash depreciation and amortization.
Year ended December 31, 2021. Cash used in operating activities was $6.2 million in 2021. Cash used by operations was primarily the result of $5.8
million of net loss plus the impact of $2.3 million of changes in assets and liabilities, partially offset by the add back of $1.6 million of non-cash stock-
based compensation and $0.7 million for non-cash depreciation and amortization.
Cash flows from investing activities
A discussion of cash flow from investing activities for each of the last two years is as follows:
Year ended December 31, 2022. Investing activity cash used of $12.0 million was primarily the result of $17.3 million net purchases of marketable
securities, a $2.5 million investment in a note receivable, and $0.7 million of purchases of property and equipment, partially offset by $8.5 million in
proceeds from the sale of our former corporate headquarters.
Year ended December 31, 2021. Investing activity cash usage of $2.5 million was primarily the result of $2.5 million used in connection with our
acquisition of FortressID.
Cash flows from financing activities
A discussion of cash flow from financing activities for each of the last two years is as follows:
20
Year ended December 31, 2022. Financing activity cash used of $1.2 million was primarily the result of $1.3 million used to buy back stock under our
stock repurchase program and $26 thousand used to pay income taxes for employees who surrendered shares of common stock in connection with stock
grants, which were partially offset by $0.2 million of proceeds from the issuance of common stock from stock grants.
Year ended December 31, 2021. Financing activity cash provided of $0.1 million was primarily the result of the issuance of common stock from stock
grants which was partially offset by cash used to pay income taxes for employees who surrendered shares in connection with stock grants.
At December 31, 2022, we had cash, cash equivalents, and marketable securities of $29.0 million. While we cannot assure you that we will not require
additional financing, or that if needed such financing will be available to us, we believe that our cash and cash equivalents will be sufficient to fund our
operations for at least the next twelve months from the filing date of this Annual Report on Form 10-K and to meet our known long-term cash
requirements. Whether these resources are adequate to meet our liquidity needs beyond that period will depend on our future growth, operating results, and
the investments needed to support our operations. If we require additional capital resources, we may utilize available funds or seek additional external
financing.
As of December 31, 2022, our material cash requirements from known contractual and other obligations consisted of payments under the operating lease
for our corporate headquarters, which we estimate will be approximately $0.5 million in 2023 and $0.7 million in each of 2024, 2025, 2026 and 2027, and
$4.2 million thereafter. See Note 10 to our consolidated financial statements included elsewhere in this Annual Report on Form 10-K for more information
on our operating lease.
We enter into agreements in the ordinary course of business that require us: i) to perform under the terms of the contracts, ii) to protect the confidentiality
of our customers’ intellectual property, and iii) to indemnify customers, including indemnification against third party claims alleging infringement of
intellectual property rights. We also have agreements with each of our directors and executive officers to indemnify such directors or executive officers, to
the extent legally permissible, against all liabilities reasonably incurred in connection with any action in which such individual may be involved by reason
of such individual being or having been a director or officer of the Company.
Given the nature of the above obligations and agreements, we are unable to make a reasonable estimate of the maximum potential amount that we could be
required to pay. Historically, we have not made any significant payments on the above guarantees and indemnifications and no amount has been accrued in
the audited financial statements included elsewhere in this Annual Report on Form 10-K with respect to these guarantees and indemnifications.
To date, inflation has not had a material impact on our financial results. There can be no assurance, however, that inflation will not adversely affect our
financial results in the future.
OFF-BALANCE SHEET ARRANGEMENTS
We do not currently have any arrangements with unconsolidated entities, such as entities often referred to as structured finance, special purpose entities, or
variable interest entities which are often established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited
purposes. Accordingly, we are not exposed to any financing, liquidity, market or credit risk.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our significant accounting policies are discussed in Note 2, Summary of Significant Accounting Policies, to our financial statements, included elsewhere in
this Annual Report. We have identified the following as our significant accounting policies and estimates, which are defined as those that are reflective of
significant judgments and uncertainties, are the most pervasive and important to the presentation of our financial condition and results of operations and
could potentially result in materially different results under different assumptions, judgments or conditions.
Revenue recognition. In accordance with Accounting Standards Codification (“ASC”), Topic 606, Revenue from Contracts with Customers (“ASC 606”),
revenue is recognized when a customer obtains control of promised goods and services. The amount of revenue recognized reflects the consideration to
which we expect to be entitled to receive in exchange for these goods and services. In addition, ASC 606 requires disclosures of the nature, amount, timing,
and uncertainty of revenue and cash flows arising from contracts with customers.
21
The core principle of the standard is that we should recognize revenue to depict the transfer of promised goods or services to customers in an amount that
reflects the consideration to which we expect to be entitled in exchange for those goods or services. To achieve that core principle, we apply the following
five step model:
1.
2.
Identify the contract with the customer;
Identify the performance obligations in the contract;
3. Determine the transaction price;
4. Allocate the transaction price to the performance obligations in the contract; and
5. Recognize revenue when (or as) each performance obligation is satisfied.
We categorize revenue as software licenses, software maintenance, or services and other revenue. Revenue from software licenses is recognized at a point
in time upon delivery, provided all other revenue recognition criteria are met. We recognize software maintenance revenue over time on a straight-line basis
over the contract period. Services revenue is recognized over time as the services are delivered using an input method (i.e., labor hours incurred as a
percentage of total labor hours budgeted), provided all other revenue recognition criteria are met.
In addition to selling software licenses, software maintenance and software services on a standalone basis, a significant portion of our contracts include
multiple performance obligations, which require an allocation of the transaction price to each distinct performance obligation based on a relative standalone
selling price (“SSP”) basis. The SSP is the price at which we would sell a promised good or service separately to a customer. The best estimate of SSP is
the observable price of a good or service when we sell that good or service separately. A contractually stated price or a list price for a good or service may
be the SSP of that good or service. We use a range of amounts to estimate SSP when we sell each of the goods and services separately and need to
determine whether there is a discount that needs to be allocated based on the relative SSP of the various goods and services. In instances where SSP is not
directly observable, such as when we do not sell the product or service separately, we typically determine the SSP using an adjusted market assessment
approach using information that may include market conditions and other observable inputs. We typically have more than one SSP for individual goods and
services due to the stratification of those goods and services by customers and circumstances. In these instances, we may use information such as the nature
of the customer and distribution channel in determining the SSP.
When software licenses and significant customization engineering services are sold together, they are accounted for as a combined performance obligation,
as the software licenses are generally highly dependent on, and interrelated with, the associated customization services and therefore are not distinct
performance obligations. Revenue for the combined performance obligation is recognized over time as the services are delivered using an input method
(i.e., labor hours incurred as a percentage of total labor hours budgeted).
When subscription-based software is sold, the software license and software maintenance are generally considered distinct performance obligations. The
transaction price is allocated to the software license and the software maintenance based on relative SSP. We sell our software subscription license for a
fixed fee or a subscription-based royalty fee, sometimes subject to a minimum guarantee. When the amount is in the form of a fixed fee, including the
guaranteed minimum usage-based royalty, revenue allocated to the software license is recognized at a point in time upon delivery, provided all other
revenue recognition criteria are met. Any royalties not subject to the guaranteed minimum or earned in excess of the minimum amount are recognized as
revenue when the subsequent usage occurs. Revenue allocated to the software maintenance is recognized over the contract term.
Also, with the delivery of our current products in a hosted environment with AwareID, we recognize revenue from our SaaS arrangements ratably over the
subscription period.
Our arrangements can include variable fees, such as the option to purchase additional usage of a previously delivered software license. We may also
provide pricing concessions to clients, a business practice that also gives rise to variable fees in contracts. For variable fees arising from the client’s
purchase of additional usage of a previously delivered software license, we apply the sales and usage-based royalties guidance related to a license of
intellectual property and recognizes the revenue in the period the underlying sale or usage occurs. We include variable fees in the determination of total
transaction price if it is not probable that a future significant reversal of revenue will occur. We use the expected value or most likely value amount,
whichever is more appropriate for specific circumstances, to estimate variable consideration, and the estimates are based on the level of historical price
concessions offered to clients.
22
The amount of consideration is not adjusted for a significant financing component if the time between payment and the transfer of the related good or
service is expected to be one year or less under the practical expedient in ASC 606-10-32-18. Our revenue arrangements are typically accounted for under
such expedient, as payment is typically due within 30 to 60 days. As of December 31, 2022 and 2021, none of our contracts contained a significant
financing component.
Goodwill and intangible assets impairment. Our goodwill and intangible assets result from our previous business acquisitions. Goodwill and intangible
assets with indefinite useful lives are not amortized but are tested for impairment at least annually or as circumstances indicate their value may no longer be
recoverable. We do not carry any intangible assets with indefinite useful lives other than goodwill. We perform our annual goodwill impairment test in the
fourth quarter. To assess if goodwill is impaired, we first review qualitative factors to determine whether further impairment testing is necessary. If based
on the qualitative assessment, we consider it more-likely-than-not that our reporting units fair value is less than its carrying amount, we perform a
quantitative impairment test. An excess of carrying value over fair value would indicate that goodwill may be impaired.
We periodically reevaluate our business and have determined that we have one operating segment and one reporting unit. If our assumptions change in the
future, we may be required to record impairment charges to reduce our goodwill carrying value.
If indicators of impairment are present, we compare the estimated undiscounted cash flows that the asset is expected to generate to the carrying value. The
key assumptions of the cash flow model involve significant subjectivity. If such assets are impaired, an impairment is measured by the amount by which the
carrying amount of the asset exceeds its fair value.
As of December 31, 2022, we had $3.1 million of goodwill and $2.8 million of intangible assets. Impairment in the valuation of long-lived assets could
materially impact our operating results and financial position. To date, there have been no impairments of goodwill or intangible assets.
Stock-Based Compensation. We grant stock and stock options to our employees and directors. We measure stock-based compensation cost at the grant
date based on the fair value of the award and recognize it as expense over the applicable vesting period of the award on a straight-line basis.
For stock awards, we determine the fair value of the award by using the fair market value of our stock on the date of grant; provided the number of shares
in the grant is fixed on the grant date.
For stock options, we use the Black-Scholes valuation model to estimate the fair value of the award. This valuation model takes into account the exercise
price of the award, as well as a variety of significant assumptions. The assumptions used to estimate the fair value of stock options include the expected
term, the expected volatility of our stock over the expected term, the risk-free interest rate over the expected term, and our expected annual dividend yield.
Income taxes. As part of the process of preparing our consolidated financial statements we are required to estimate our actual current tax expense. We
must also estimate temporary and permanent differences that result from differing treatment of certain items for tax and accounting purposes. These
differences result in deferred tax assets and liabilities, which are included in our consolidated balance sheet. We must then assess the likelihood that our
deferred tax assets will be recovered from future taxable income and to the extent we believe recovery is not likely, we must establish a valuation
allowance.
The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020. The Act contained specific relief and
stimulus measures including allowing net operating losses originating in 2018 through 2020 to be carried back five years to offset taxable income in the
carryback period.
Significant management judgment is required in determining our provision for income taxes, our deferred tax assets, and any valuation allowance recorded
against our net deferred tax assets. Our deferred tax assets primarily relate to: i) research and development tax credit carryforwards; ii) net operating loss
carryforwards; and iii) temporary differences that result from differing treatment of certain items for tax and accounting purposes. As of December 31,
2022, we had a total of $11.1 million of deferred tax assets for which we have recorded a $11.1 million valuation allowance.
23
We will continue to assess the level of valuation allowance required in future periods. Should evidence regarding the realizability of tax assets change at a
future point in time, the valuation allowance will be adjusted accordingly.
Allowance for doubtful accounts. We make judgments as to our ability to collect outstanding and unbilled receivables and provide allowances for
receivables when collection becomes doubtful. Provisions are made based upon a specific review of all significant outstanding receivables. If the
judgments we make to determine the allowance for doubtful accounts do not reflect the future ability to collect outstanding receivables, additional
provisions for doubtful accounts may be required.
RECENT ACCOUNTING PRONOUNCEMENTS
Recent Accounting Pronouncements. In October 2021, the Financial Accounting Standards Board (“FASB”) issued Accounting Standard Update
(“ASU”) No. 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. The
ASU requires contract assets and contracts liabilities to be accounted for as if they (“the acquirer”) entered into the original contract at the same time and
same date as the acquiree. The guidance is to be effective for reporting periods beginning after December 15, 2022, with early adoption permitted. We are
continuing to assess the impact of the standard on our consolidated financial statements.
In June 2016, the FASB issued ASU 2016-13, Financial Instruments – Credit Losses (Topic 326): Measurement of Credit Losses of Financial Instruments,
which changes the methodology for measuring credit losses on financial instruments and the timing of when such losses are recorded. This guidance was
to be effective for reporting periods beginning after December 15, 2019, with early adoption permitted. In November 2019, the FASB issued ASU 2019-10,
Financial Instruments – Credit Losses (Topic 326), and Derivatives and Hedging (Topic 815) effective Dates, which deferred the effective dates for us, as a
smaller reporting company, until fiscal year 2023. We are continuing to assess the impact of the standard on our consolidated financial statements.
24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Aware, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Aware, Inc. and its subsidiaries (the Company) as of December 31, 2022
and 2021, the related consolidated statements of operations and comprehensive loss, stockholders’ equity, and cash flows for each of the
two years in the period ended December 31, 2022, and the related notes to the consolidated financial statements (collectively, the financial
statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of
December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the two years in the period ended December
31, 2022, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the
Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting
Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal
securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the auditing standards of the PCAOB and in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor
were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an
understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the
Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or
fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the
amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant
estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits
provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were
communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the
financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit
matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical
audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Revenue Recognition
As described in Note 2 to the financial statements, the Company recognizes revenue when a customer obtains control of promised goods
and services. The amount of revenue recognized reflects the consideration which the Company expects to be entitled to receive in exchange
for these goods and services. The Company offers customers the ability to purchase combinations of software licenses, software
maintenance, and related professional services together in one arrangement. The Company must determine which promises are distinct
performance obligations and allocate the revenue to the
25
performance obligations that are considered distinct based upon their relative Stand-alone Selling Price (SSP). Revenue allocated to
software licenses is typically recognized at a point in time upon delivery and revenue allocated to the software maintenance and professional
services is recognized over time, provided all other revenue recognition criteria are met. Management applies significant judgment in
determining the revenue recognition for these contracts including the identification of and accounting for all performance obligations and the
calculation of the SSP for each identified performance obligation. The Company’s identification of performance obligations and estimate of
SSP for each performance obligation identified within these customer contracts requires management to consider many factors, including:
•
•
Determination of whether products and services are considered distinct performance obligations that should be accounted for
separately versus together, such as software maintenance or professional services that are sold with software licenses.
Determination of stand-alone selling prices for each distinct performance obligation.
Given these factors, the related audit effort in evaluating management's judgments in identifying performance obligations and estimating
SSP’s for these customer agreements was extensive and required a high degree of auditor judgment.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the
financial statements. Our procedures related to the Company's identification of performance obligations and estimation of SSP’s for these
customer agreements included, among others:
•
•
•
•
We evaluated management's significant accounting policies related to these customer agreements for reasonableness.
We obtained and read revenue contracts and evaluated the completeness of the performance obligations identified by
management, and performed an evaluation of whether these performance obligations were distinct and capable of being
distinct.
We tested management’s process used to determine the SSP’s by evaluating the models, including testing the accuracy and
completeness of data used, and reasonableness of assumptions applied by management.
For each contract with multiple performance obligations, we also tested the allocation of the transaction price to each
performance obligation based upon the SSP.
Contingent Acquisition Payments
As disclosed in Note 5 to the financial statements, during 2021, the Company completed the acquisition of FortressID for a total aggregate
purchase price of $3.4 million. The transaction was accounted for as a business combination. The total aggregate purchase price included
$2.5 million of cash consideration plus the fair value of the contingent acquisition payments which was originally estimated to be $0.9 million.
The contingent acquisition payments required cash payments of up to $2.0 million by achieving revenue targets during 2022 and up to
another $2.0 million for revenue targets reached during 2023. The Company determines the fair value of contingent acquisition payments as
part of the initial purchase price allocation and on an ongoing basis each reporting period until the contingent acquisition payments period is
settled. As of December 31, 2022, the liability recorded for future estimated contingent acquisition payments was $0.8 million, which
represents a Level 3 estimate in the fair value hierarchy due to the significant unobservable inputs used in determining the fair value and the
use of management judgment about the assumptions that market participants would use in pricing these liabilities.
Auditing the Company’s accounting for its contingent acquisition payments was complex due to the significant estimation required by
management to determine the fair value of the contingent acquisition payments. The significance of the estimations used by management to
determine the fair value of contingent acquisition payments was primarily due to the sensitivity of the fair value to the underlying
assumptions. The significant assumptions include estimation of the probability and timing of payments, future sales forecasts, as well as the
appropriate discount rate based on the estimated timing of payments. These significant assumptions are forward looking and could be
affected by future economic and market conditions.
26
Given these factors, the related audit effort in evaluating management's judgments in determining the fair value of the contingent acquisition
payments was extensive and required a high degree of auditor judgment.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the
financial statements. Our procedures related to the Company's contingent acquisition payments included, among others:
•
•
•
•
We evaluated the Company’s use of the multi-scenario model and testing the significant assumptions used in the model which
include but are not limited to future sales forecasts and the discount rate.
We obtained and read the terms of the contingent acquisition payments and the conditions that must be met for the amounts to
become payable.
We tested the reasonableness of management’s underlying sales forecasts used in the valuation model by comparing the
projections to historical results and certain peer companies.
With the assistance of our valuation specialists, we evaluated the reasonableness of the valuation methodology and discount
rates utilized by management by:
o
o
Testing the source information underlying the determination of the discount rate and evaluating the appropriateness of the
methodology used by management’s valuation specialist.
Testing the mathematical accuracy of the calculations and comparing those to the discount rate selected by management.
/s/ RSM US LLP
We have served as the Company's auditor since 2012.
Boston, Massachusetts
March 15, 2023
27
AWARE, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
December 31,
2022
2021
ASSETS
Current assets:
Cash and cash equivalents
Marketable securities
Accounts receivable, net
Unbilled receivables, net
Tax receivable
Prepaid expenses and other current assets
Total current assets
Property and equipment, net
Intangible assets, net
Goodwill
Note receivable
Right of use asset
Other long-term assets
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable
Accrued expenses
Current portion of operating lease liabilities
Deferred revenue
Total current liabilities
Long-term deferred revenue
Long-term operating lease liabilities
Long-term contingent acquisition payments
Total long-term liabilities
Commitments and contingent liabilities (Note 11)
Stockholders’ equity:
Preferred stock, $1.00 par value; 1,000,000 shares authorized,
none outstanding
Common stock, $.01 par value; shares authorized,
70,000,000 in 2022 and 2021; issued and
outstanding of 21,093,447 as of December 31,
2022 and 21,613,982 as of December 31, 2021
Additional paid-in capital
Accumulated deficit
Accumulated other comprehensive loss
Total stockholders’ equity
Total liabilities and stockholders’ equity
$
$
$
$
11,749 $
17,229
3,317
2,929
1,362
693
37,279
726
2,806
3,120
2,601
4,538
122
51,192 $
639 $
1,282
470
3,411
5,802
322
4,047
812
5,181
29,963
—
3,763
3,087
1,411
591
38,815
3,216
3,222
3,120
—
—
—
48,373
283
1,909
—
3,549
5,741
191
-
919
1,110
-
-
211
98,306
(58,198 )
(110 )
40,209
51,192 $
216
97,778
(56,472 )
—
41,522
48,373
The accompanying notes are an integral part of the consolidated financial statements.
28
AWARE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS and COMPREHNSIVE LOSS
(in thousands, except per share data)
Revenue:
Software licenses
Software maintenance
Services and other
Total revenue
Costs and expenses:
Cost of services and other
Research and development
Selling and marketing
General and administrative
Gain on sale of fixed assets
Total costs and expenses
Operating loss
Interest and other income
Loss before provision for (benefit from) income taxes
Provision for (benefit from) income taxes
Net loss
Net loss per share – basic
Net loss per share – diluted
Weighted-average shares - basic
Weighted-average shares - diluted
Other comprehensive loss, net of tax
Unrealized loss on available-for-sale securities
Comprehensive loss
Years ended December 31,
2022
2021
7,386 $
7,111
1,511
16,008
1,260
9,234
6,962
6,441
(5,672 )
18,225
(2,217 )
540
(1,677 )
49
(1,726 ) $
(0.08 ) $
(0.08 ) $
21,604
21,604
(110 )
(1,836 ) $
7,973
6,679
2,202
16,854
1,210
9,259
6,324
6,158
—
22,951
(6,097 )
4
(6,093 )
(269 )
(5,824 )
(0.27 )
(0.27 )
21,525
21,525
—
(5,824 )
$
$
$
$
$
The accompanying notes are an integral part of the consolidated financial statements.
29
AWARE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization
Gain on sale of fixed assets
Stock-based compensation
Interest receivable
Non-cash lease expense
Change in fair value of contingent acquisition payments
Deferred taxes
Bad debt provision (recoveries)
Increase (decrease) from changes in assets and liabilities:
Accounts receivable
Unbilled receivables
Prepaid expenses and other current assets
Tax receivable
Accounts payable
Accrued expenses
Deferred revenue
Net cash used in operating activities
Cash flows from investing activities:
Purchases of property and equipment
Proceeds from sale of fixed assets, net
Purchases of marketable securities
Sale of marketable securities
Investment in note receivable
Cash paid for acquisitions, net
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from issuance of unrestricted stock
Payments made for taxes of employees who surrendered
shares related to unrestricted stock
Repurchase of common stock
Net cash (used in) provided by financing activities
Decrease in cash and cash equivalents
Cash and cash equivalents, beginning of year
Cash and cash equivalents, end of year
Supplemental disclosure:
Cash paid for income taxes
The accompanying notes are an integral part of the consolidated financial statements.
30
Years ended December 31,
2022
2021
$
(1,726 ) $
(5,824 )
760
(5,672 )
1,707
(101 )
128
(107 )
-
344
332
(71 )
(406 )
49
356
(628 )
(7 )
(5,042 )
(730 )
8,547
(18,555 )
1,250
(2,500 )
—
(11,988 )
154
(26 )
(1,312 )
(1,184 )
(18,214 )
29,963
11,749 $
687
—
1,567
—
—
—
(269 )
(64 )
(1,410 )
(837 )
(9 )
(13 )
(249 )
380
(193 )
(6,234 )
(27 )
—
—
—
—
(2,450 )
(2,477 )
163
(54 )
—
109
(8,602 )
38,565
29,963
- $
-
$
$
AWARE, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands)
31
Additional
Common Stock
Paid-In
Accumulated
Shares
Amount
Capital
Deficit
Total
Accumulate
d Other
Comprehens
ive Loss
Stockholders’
Equity
Balance at December 31, 2020
21,379 $
214 $
96,104 $
(50,648 ) $
— $
45,670
189
2
(2 )
—
—
—
Issuance of unrestricted stock
Shares surrendered by
employees to pay
taxes related to unrestricted
stock
Issuance of common stock under
employee stock purchase plan
Stock-based compensation
expense
Net loss
(16 )
62
—
—
—
—
(54 )
163
1,567
—
—
—
(5,824 )
Balance at December 31, 2021
21,614
216
97,778
(56,472 )
Issuance of unrestricted stock
Shares surrendered by
employees to pay
taxes related to unrestricted
stock
Issuance of common stock under
employee stock purchase plan
Stock-based compensation
expense
118
1
1
—
(10 )
76
—
(26 )
151
1,707
—
1
—
32
—
—
—
—
—
—
—
—
—
—
(54 )
163
1,567
(5,824 )
41,522
—
2
(26 )
152
1,707
Repurchase of common stock
Other comprehensive loss
Net loss
(705 )
—
(7 )
—
(1,305 )
—
—
(1,726 )
—
(110 )
—
(1,312 )
(110 )
(1,726 )
Balance at December 31, 2022
21,093 $
211 $
98,306 $
(58,198 ) $
(110 ) $
40,209
The accompanying notes are an integral part of the consolidated financial statements.
33
1 NATURE OF BUSINESS
We are a global leader in biometrics software offerings and solutions. Our portfolio enables government agencies and commercial entities to enroll,
identify authenticate and enable using biometrics, which comprise physiological characteristics, such as fingerprints, faces, irises and voices.
•
•
•
•
Enroll: Register biometric identities into an organization’s secure database
Identify: Utilize an organization’s secure database to accurately identify individuals using biometric data
Authenticate: Provide frictionless multi-factor, passwordless access to secured accounts and databases with biometric verification
Enable: Manage the lifecycle of secure identities through optimized biometric interchanges
We have been engaged in this business since 1993. Our comprehensive portfolio of biometric solutions is based on innovative, robust products
designed explicitly for ease of integration, including customer-managed and integration ready biometric frameworks, platforms, software
development kits (“SDKs”) and services. Principal government applications of biometrics systems include border control, visa applicant screening,
law enforcement, national defense, intelligence, secure credentialing, access control, and background checks. Principal commercial applications
include mobile enrollment, user authentication, identity proofing, and secure transaction enablement.
Our products span multiple biometric modalities including fingerprint, face, iris and voice, and provide interoperable, standards-compliant, field-
proven biometric functionality. Our products are used to capture, verify, format, compress and decompress biometric images as well as aggregate,
analyze, process, match and transport those images and templates within biometric systems. For large deployments, we may provide project
management and software engineering services. We sell our biometrics software products and services globally through a multifaceted distribution
strategy using systems integrators, original equipment manufacturers (“OEMs”), VARs, partners, and directly to end user customers.
Certain amounts in the consolidated financial statements and associated notes may not add due to rounding. All percentages have been calculated
using unrounded amounts.
2
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation - The consolidated financial statements include the accounts of Aware, Inc. and its subsidiaries (“the Company”). All
significant intercompany transactions have been eliminated.
Use of Estimates – The preparation of our financial statements in conformity with accounting principles generally accepted in the United States of
America requires us 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 amount of revenues and expenses during the reporting period. The most
significant estimates included in the financial statements pertain to revenue recognition, reserves for doubtful accounts, valuation of acquired assets
and assumed liabilities in business combinations, valuation of contingent acquisition payments, valuation of investment in note receivable, goodwill
and long-lived asset impairment and valuation allowance for deferred income tax assets. Actual results could differ from those estimates.
Fair Value Measurements - The Financial Accounting Standards Board (“FASB”) Codification defines fair value and establishes a fair value
hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to the unadjusted
quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3
measurements). The three levels of the fair value hierarchy under the FASB Codification are: i) Level 1 – valuations that are based on quoted prices
(unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date; ii) Level 2 –
valuations that are based on quoted prices in markets that are not active or for which all significant inputs are observable, either directly or
indirectly; and iii) Level 3 – valuations that require inputs that are both significant to the fair value measurement and unobservable.
34
Cash and cash equivalents, which primarily include money market mutual funds, were $11.7 million and $30.0 million at December 31, 2022 and
2021, respectively. Marketable securities, which primarily include U.S. Treasuries and corporate bonds, were $17.2 million and $0 as of December
31, 2022 and 2021, respectively.
As of December 31, 2022, our assets and liabilities that are measured at fair value on a recurring basis include the following (in thousands):
Quoted Prices
in Active
Markets for
Identical
Assets
(Level 1)
Fair Value Measurement at
December 31, 2022 Using:
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobservable
Inputs
(Level 3)
Total
$
$
$
$
10,967 $
17,229
-
$
28,196
- $
$
-
- $
-
-
$
-
- $
- $
- $
-
2,601
$
2,601
10,967
17,229
2,601
30,797
812 $
812 $
812
812
Assets:
Money market funds (included in cash
and cash equivalents)
Marketable securities
Note receivable
Total assets
Liabilities:
Contingent acquisition payments
Total liabilities
Our investments in marketable securities are classified as available-for-sale and are carried at fair value, with the unrealized gains and losses, net of
tax, reported as a component of accumulated other comprehensive loss in stockholders' equity.
The investment in the Note Receivable ("Note") with Omlis Limited ("Omlis"), a limited company incorporated and registered in England and
Wales and the parent of MIRCAL Technologies Limited ("MIRACL"), was negotiated at an arm’s length basis and the total carrying value of the
investment of $2.6 million is representative of the fair value of the investment as of December 31, 2022. During the year ended December, 31,
2022, there were no changes in the underlying assumptions of the note receivable. The change in fair value during the year ended December 31,
2022 was the result of accrued interest. The fair value of our contingent acquisition payments, which was determined using a Monte Carlo
simulation, was $0.8 million and $0.9 million as of December 31, 2022 and 2021, respectively. The $0.1 million decrease in fair value recognized
during the year ended December 31, 2022 was due to changes in forecasted revenue and a de minims impact from the present value factor.
Marketable securities by security type consisted of the following (in thousands):
Amortized Cost
Gross Unrealized
Gains
Gross Unrealized Losses
Fair Value
December 31, 2022:
U.S. Treasury notes and
bonds
Corporate bonds
$
$
13,389 $
3,950
17,339 $
24 $
—
24 $
(100 ) $
(34 )
(134 ) $
13,313
3,916
17,229
35
As of December 31, 2021, our assets and liabilities that are measured at fair value on a recurring basis included the following (in thousands):
Fair Value Measurement at
December 31, 2021 Using:
Significant
Other
Observable
Inputs
(Level 2)
Significant
Unobserva
ble
Inputs
(Level 3)
Quoted Prices
in Active
Markets for
Identical
Assets
(Level 1)
Total
$
$
$
$
28,952 $
28,952 $
- $
- $
- $
- $
- $
- $
- $
- $
28,952
28,952
919 $
919 $
919
919
Assets:
Money market funds (included in cash
and cash equivalents)
Total assets
Liabilities:
Contingent acquisition payments
Total liabilities
Changes in note receivable consisted of the following (in thousands):
Balance as of December 31, 2021
Investment in Note Receivable
Accrued interest
Balance as of December 31, 2022
Year Ended
December 31, 2022
$
$
—
2,500
101
2,601
Cash and Cash Equivalents – Cash and cash equivalents, which consist primarily of money market funds and demand deposits, are stated at fair
value. All highly liquid investments purchased with an original maturity of three months or less are considered cash equivalents. Our cash balances
exceed the Federal Deposit Insurance Corporation limits. The Company does not believe it is exposed to significant credit risk related to cash and
cash equivalents.
Allowance for Doubtful Accounts – Accounts are charged to the allowance for doubtful accounts as they are deemed uncollectible based on a
periodic review of the accounts.
For the years ended December 31, 2022 and 2021, changes to and ending balances of the allowance for doubtful accounts were as follows (in
thousands):
Allowance for doubtful accounts balance - beginning of year
Additions to the allowance for doubtful accounts
Deductions against the allowance for doubtful
accounts
Allowance for doubtful accounts balance - end of year
Years ended
December 31,
2022
2021
$
$
74 $
156
(42 )
188 $
138
-
(64 )
74
In addition, for the years ended December 31, 2022 and 2021 the bad debt expense related to unbilled receivables was $230K and $0, respectively.
36
Property and Equipment – Property and equipment is stated at cost. Depreciation and amortization of property and equipment is provided using the
straight-line method over the estimated useful lives of the assets. Upon retirement or sale, the costs of the assets disposed of and the related
accumulated depreciation are removed from the accounts and any resulting gain or loss on disposal is included in the determination of income or
loss. Expenditures for repairs and maintenance are charged to expense as incurred.
The estimated useful lives of assets are:
Leasehold improvements
Furniture and fixtures
Computer and office equipment
Purchased software
10 years
5 years
3 years
3 years
Leases –We account for a contract as a lease when it has the right to control the asset for a period of time while obtaining substantially all of the
asset’s economic benefits. We determine the initial classification and measurement of our operating right of use assets and lease liabilities at the
lease commencement date and thereafter if modified. Fixed lease costs are recognized on a straight-line basis over the lease term. Variable lease
costs are recognized in the period in which the obligation for those payments is incurred. We combine lease and non-lease components when
determining lease costs for its office space lease. The lease liability includes lease payments related to options to extend or renew the lease term if
we are reasonably certain it will exercise those options. Our lease does not contain material residual value guarantees or restrictive covenants.
Goodwill – We record goodwill when consideration paid in a business acquisition exceeds the value of the net assets acquired. Our estimates of fair
value are based upon assumptions believed to be reasonable at the time, but such estimates are inherently uncertain and unpredictable. Assumptions
may be incomplete or inaccurate and unanticipated events or circumstances may occur, which may affect the accuracy or validity of such
assumptions, estimates or actual results. Goodwill is not amortized but rather is tested for impairment annually in the fourth quarter or more
frequently, if facts and circumstances warrant a review. Circumstances that could trigger an impairment test include, but are not limited to, a
significant adverse change in the business climate or legal factors, an adverse action or assessment by a regulator, decline in market capitalization, or
unanticipated competition. We have determined that there is a single reporting unit for the purpose of conducting the goodwill impairment
assessment. In accordance with ASC Topic 350, Intangibles—Goodwill and Other, we first assess qualitative factors to determine whether it is
necessary to perform the quantitative goodwill impairment test. If after assessing the totality of events or circumstances, we determine that it is more
likely than not (i.e., greater than 50% likelihood) that the fair value of the reporting unit is less than its carrying amount, then the quantitative test is
required. The quantitative goodwill impairment test requires us to estimate and compare the fair value of the reporting unit, determined using an
income approach and a market approach, with its carrying value. If the fair value of the reporting unit exceeds the carrying value of the net assets,
goodwill is not impaired. If the fair value of the reporting unit is less than the carrying value, the difference is recorded as an impairment loss up to
the amount of goodwill.
Application of the goodwill impairment test requires judgments, including identification of the reporting units, assigning goodwill to reporting units,
a qualitative assessment to determine whether there are any impairment indicators, and determining the fair value of each reporting unit which often
involves the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates,
asset lives and market multiples, among other items. There is no assurance that the actual future earnings or cash flows of the reporting unit will not
decline significantly from the projections used in the impairment analysis. Goodwill impairment charges may be recognized in future periods to the
extent changes in factors or circumstances occur, including deterioration in the macroeconomic environment and industry, deterioration in the
Company’s performance or its future projections, or changes in plans for its reporting unit.
As of December 31, 2022 and 2021, we had $3.1 million of goodwill. Impairment of goodwill could materially impact our operating results and
financial position. We performed a quantitative analysis during the years ended December 31, 2022 and 2021 and determined there was no
impairment loss and to date, there have been no impairments of goodwill.
The changes in goodwill for the years ended December 31, 2022 and 2021 were as follows (in thousands):
37
Balance as of December 31, 2020
Goodwill arising from AFIX acquisition
Balance as of December 31, 2021 and 2022
Goodwill
1,651
1,469
3,120
$
$
Valuation of Long-Lived Assets – We review long-lived assets for impairment whenever events or changes in business circumstances indicate that
the carrying amount of the assets may not be fully recoverable or that the useful lives of these assets are no longer appropriate. Each impairment test
is based on a comparison of the undiscounted cash flows estimated to be generated by those assets over their estimated economic life to the related
carrying value of those assets to determine if the assets are impaired. If an impairment is indicated, the asset is written down to its estimated fair
value. The cash flow estimates used to identify the potential impairment reflect our best estimates using appropriate assumptions and projections at
that time. In evaluating potential impairment of these assets, we specifically consider whether any indicators of impairment are present, including,
but not limited to:
•
•
•
whether there has been a significant adverse change in the business climate that affects the value of an asset:
whether there has been a significant change in the extent or way an asset is used; and
whether there is an expectation that the asset will be sold or disposed of before the end of its originally estimated useful life.
We did not identify any events or changes in business circumstances that would indicate the carrying amount of the assets may not be fully
recoverable or that the useful lives of these assets are no longer appropriate during the years ended December 31, 2022 and 2021.
Revenue recognition. The core principle of Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers
(“ASC 606”) is that we should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the
consideration to which we expect to be entitled in exchange for those goods or services. To achieve that core principle, we apply the following five
step model:
1) Identify the contract with the customer
A contract with a customer exists when (i) we enter into an enforceable contract with a customer that defines each party’s rights regarding the goods
or services to be transferred and identifies the related payment terms, (ii) the contract has commercial substance, and (iii) we determine that
collection of substantially all consideration for goods and services that are transferred is probable based on the customer’s intent and ability to pay
the promised consideration. We apply judgment in determining the customer’s intent and ability to pay, which is based on a variety of factors
including the customer’s historical payment experience, or in the case of a new customer, published credit and financial information pertaining to the
customer.
We evaluate contract modifications for the impact on revenue recognition if they have been approved by both parties such that the enforceable rights
and obligations under the contract have changed. Contract modifications are either accounted for using a cumulative effect adjustment or
prospectively over the remaining term of the arrangement. The determination of which method is more appropriate depends on the nature of the
modification, which we evaluate on a case-by-case basis.
We combine two or more contracts entered into at or near the same time with the same customer and account for them as a single contract if (i) the
contracts are negotiated as a package with a common commercial objective, (ii) the amount of consideration to be paid in one contract depends on
the price or performance of the other contract, or (iii) some or all of the goods or services in one contract would be combined with some or all of the
goods and services in the other contract into a single performance obligation. If two or more contracts are combined, the consideration to be paid is
aggregated and allocated to the individual performance obligations without regard to the consideration specified in the individual contracts.
38
2) Identify the performance obligations in the contract
Performance obligations promised in a contract are identified based on the goods and services that will be transferred to the customer that are both
capable of being distinct, whereby the customer can benefit from the good or service either on its own or together with other available resources, and
are distinct in the context of the contract, whereby the transfer of the good or service is separately identifiable from other promises in the contract.
To the extent a contract includes multiple promised goods and services, we apply judgment to determine whether promised goods and services are
capable of being distinct and distinct in the context of the contract. If these criteria are not met, the promised goods and services are accounted for as
a combined performance obligation. To identify performance obligations, we consider all of the goods or services promised in a contract regardless
of whether they are explicitly stated or are implied by customary business practices.
3) Determine the transaction price
The transaction price is determined based on the consideration we expect to be entitled in exchange for transferring promised goods and services to
the customer. Determining the transaction price requires significant judgment. To the extent the transaction price includes variable consideration, we
estimate the amount of variable consideration that should be included in the transaction price utilizing either the expected value method or the most
likely amount method depending on the nature of the variable consideration. Variable consideration is included in the transaction price if, in our
judgment, it is probable that a significant future reversal of cumulative revenue recognized under the contract will not occur. Any estimates,
including the effect of the constraint on variable consideration, are evaluated at each reporting period. Some of our arrangements include usage-
based royalties where a software license is the predominant item that the royalty relates to. In these arrangements, revenue from the usage-based
royalty is recognized when the subsequent usage occurs.
The amount of consideration is not adjusted for a significant financing component if the time between payment and the transfer of the related good
or service is expected to be one year or less under the practical expedient in ASC 606-10-32-18. Our revenue arrangements are typically accounted
for under such expedient, as payment is typically due within 30 to 60 days. As of December 31, 2022 and 2021, none of our contracts contained a
significant financing component.
Our arrangements can include variable fees, such as the option to purchase additional usage of a previously delivered software license. The
Company may also provide pricing concessions to clients, a business practice that also gives rise to variable fees in contracts. The Company also
reviews contractual termination provisions in determining contractual term and total transaction price. For variable fees arising from the client’s
purchase of additional usage of a previously delivered software license, we apply the sales and usage-based royalties guidance related to a license of
intellectual property and recognizes the revenue in the period the underlying sale or usage occurs. We include variable fees in the determination of
total transaction price if it is not probable that a future significant reversal of revenue will occur. We use the expected value or most likely value
amount, whichever is more appropriate for specific circumstances, to estimate variable consideration, and the estimates are based on the level of
historical price concessions offered to clients.
4) Allocate the transaction price to performance obligations in the contract
If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that
contain multiple performance obligations require an allocation of the transaction price to each performance obligation based on a relative standalone
selling price (“SSP”) basis unless the transaction price is variable and meets the criteria to be allocated entirely to a performance obligation or to a
distinct service that forms part of a single performance obligation. The consideration to be received is allocated among the separate performance
obligations based on relative SSPs. The SSP is the price at which we would sell a promised good or service separately to a customer. The best
estimate of SSP is the observable price of a good or service when we sell that good or service separately. A contractually stated price or a list price
for a good or service may be the SSP of that good or service. We use a range of amounts to estimate SSP when we sell each of the goods and
services separately and need to determine whether there is a discount that needs to be allocated based on the relative SSP of the various goods and
services. In instances where SSP is not directly observable, such as when we do not sell the product or service separately, we typically determine the
SSP using an adjusted market assessment approach using information that may include market conditions and other observable inputs. We typically
have more than one SSP for individual goods and services due to the
39
stratification of those goods and services by customers and circumstances. In these instances, we may use information such as the nature of the
customer and distribution channel in determining the SSP.
5) Recognize revenue when or as we satisfy a performance obligation
We satisfy performance obligations either over time or at a point in time. Revenue is recognized over time if 1) the customer simultaneously
receives and consumes the benefits provided by our performance, 2) our performance creates or enhances an asset that the customer controls as the
asset is created or enhanced, or 3) our performance does not create an asset with an alternative use to us and we have an enforceable right to
payment for performance completed to date. If we do not satisfy a performance obligation over time, the related performance obligation is satisfied
at a point in time by transferring the control of a promised good or service to a customer.
We categorize revenue as software licenses, software maintenance, or services and other. Specific revenue recognition policies apply to each
category of revenue.
Software licenses
Software licenses consist of revenue from the sale of software licenses for biometrics and imaging applications. Our software licenses are functional
intellectual property and typically provide customers with the right to use our software on a term or perpetual basis as it exists when made available
to the customer. We recognize revenue from perpetual software licenses at a point in time upon delivery, provided all other revenue recognition
criteria are met.
We also offer certain products pursuant to a subscription-based software model which includes a term software license to use the software for a fixed
term. We recognize revenue for fixed fees associated with subscription-based software licenses at a point in time upon delivery, provided all other
revenue recognition criteria are met. Fees subject to the usage-based royalty exception are recognized when the subsequent usage occurs.
Also, with our acquisition of FortressID and adaption of our current products to be delivered in a hosted environment with AwareID, we expect to
recognize revenue from our SaaS offerings ratably over the subscription period. For the years ended December 31, 2022 and 2021 we generated a
de minimis amount of revenue from SaaS contracts.
Software maintenance
Software maintenance consists of revenue from the sale of software maintenance contracts for biometrics and imaging software. Software
maintenance contracts entitle customers to receive software support and software updates, if and when they become available, during the term of the
maintenance contract. Software support and software updates are considered distinct services. However, these distinct services are considered a
single performance obligation consisting of a series of distinct services that are substantially the same and have the same pattern of transfer to the
customer. We recognize software maintenance revenue over time on a straight-line basis over the contract period.
Services and other
Service revenue consists of fees from biometrics customers for software engineering services. We recognize services revenue over time as the
services are delivered using an input method (i.e., labor hours incurred as a percentage of total labor hours budgeted), provided all other revenue
recognition criteria are met. The use of the over-time revenue recognition method requires judgment in developing budgeted labor hours. Changes
in budgeted hours may occur and the resulting impact on revenue recognition is accounted for in the period of the change in estimate. Other
revenue, which includes hardware sales that may be purchased with the software license, is recognized at a point in time upon delivery provided all
other revenue recognition criteria are met
40
Arrangements with multiple performance obligations
In addition to selling software licenses, software maintenance and software services on a standalone basis, a significant portion of our contracts
include multiple performance obligations. The various combinations of multiple performance obligations and our revenue recognition for each are
described as follows:
•
•
•
•
•
Perpetual software licenses and software maintenance: When software licenses and software maintenance contracts are sold together, the
software licenses and software maintenance are generally considered distinct performance obligations. The transaction price is allocated to the
software licenses and the software maintenance based on relative SSP. Revenue allocated to the software licenses is recognized at a point in time
upon delivery, provided all other revenue recognition criteria are met. Revenue allocated to the software maintenance is recognized over time on
a straight-line basis over the contract period.
Perpetual software licenses and services: When software licenses and significant customization engineering services are sold together, they are
accounted for as a combined performance obligation, as the software licenses are generally highly dependent on, and interrelated with, the
associated services and therefore are not distinct performance obligations. Revenue for the combined performance obligation is recognized over
time as the services are delivered using an input method (i.e., labor hours incurred as a percentage of total labor hours budgeted). When software
licenses and standard implementation or consulting-type services are sold together, they are generally considered distinct performance
obligations, as the software licenses are not dependent on or interrelated with the associated services. The transaction price in these arrangements
is allocated to the software licenses and services based on relative SSP. Revenue allocated to the software licenses is recognized at a point in time
upon delivery, provided all other revenue recognition criteria are met. Revenue allocated to the services is recognized over time using an input
method. In arrangements with both software licenses and services, the software license portion of the arrangement is classified as software
license revenue and the services portion is classified as services revenue in our consolidated statements of operations and comprehensive loss.
Perpetual software licenses, software maintenance and services: When we sell software licenses, software maintenance and software services
together, we account for the individual performance obligations separately if they are distinct. The transaction price is allocated to the separate
performance obligations based on relative SSP. Revenue allocated to the software licenses is recognized at a point in time upon delivery.
Revenue allocated to the services is recognized over time using an input method (i.e., labor hours incurred as a percentage of total labor hours
budgeted). Revenue for the software maintenance is recognized over time on a straight-line basis over the contract period. However, if the
software services are significant customization engineering services, they are accounted for with the software licenses as a combined
performance obligation, as stated above. Revenue for the combined performance obligation is recognized over time using an input method.
Perpetual software licenses, hardware, software maintenance, and services: When we sell software licenses, hardware, software
maintenance and software services together, we account for the individual performance obligations separately if they are distinct. The transaction
price is allocated to the separate performance obligations based on relative SSP. Revenue allocated to the software licenses is recognized at a
point in time upon delivery. Revenue allocated to the services is recognized over time using an input method (i.e., labor hours incurred as a
percentage of total labor hours budgeted). Revenue for the hardware is recognized at a point in time upon delivery. Revenue for the software
maintenance is recognized over time on a straight-line basis over the contract period.
Subscription-based software consisting of a software license and software maintenance: When subscription-based software is sold, the
software license and software maintenance are generally considered distinct performance obligations. The transaction price is allocated to
software license and the software maintenance based on relative SSP. We sell subscription-based software licenses for a fixed fee and/or a usage-
based royalty fee, sometimes subject to a minimum guarantee. When the amount is in the form of a fixed fee, including the guaranteed minimum
in usage-based royalty, revenue is allocated to the software license recognized at a point in time upon delivery, provided all other revenue
recognition criteria are met. Any royalties not subject to the guaranteed minimum or earned in excess of the minimum amount are recognized as
revenue when the subsequent usage occurs. Revenue allocated to the software maintenance is recognized on a straight-line basis over the
contract period.
41
Returns
We do not offer rights of return for our products and services in the normal course of business.
Customer Acceptance
Our contracts with customers generally do not include customer acceptance clauses.
Contract Balances
When the timing of our delivery of goods or services is different from the timing of payments made by customers, we recognize either a contract
asset (performance precedes contractual billing date) or a contract liability (customer payment precedes performance). Customers that prepay are
represented by the deferred revenue until the performance obligation is satisfied. Our contract assets consist of unbilled receivables. Our contract
liabilities consisted of deferred (unearned) revenue, which is generally related to software maintenance contracts. We classify deferred revenue as
current or noncurrent based on the timing of when we expect to recognize revenue.
The following table presents changes in our contract assets and liabilities during the years ended December 31, 2022 and 2021 (in thousands):
Year ended December 31, 2022
Contract Assets:
Unbilled receivables
Year ended December 31, 2021
Contract Assets:
Unbilled receivables
Year ended December 31, 2022
Contract Liabilities:
Deferred revenue
Year ended December 31, 2021
Contract Liabilities:
Deferred revenue
$
$
$
$
Balance at
Beginning
of period
Revenue
Recognized
In Advance
of Billings
Billings
Balance at
End of
Period
3,087 $
5,288 $
(5,446 ) $
2,929
2,229 $
7,172 $
(6,314 ) $
3,087
Balance at
Beginning
of period
Billings
Revenue
Recognized
Balance at
End of
Period
3,740 $
7,104 $
(7,111 ) $
3,733
3,933 $
6,486 $
(6,679 ) $
3,740
42
Remaining Performance Obligations
Remaining performance obligations represent the transaction price from contracts for which work has not been performed or goods and services
have not been delivered. We expect to recognize revenue on approximately 72% of the remaining performance obligations over the next 12 months,
with the remainder recognized thereafter. As of December 31, 2022, the aggregate amount of the transaction price allocated to remaining
performance obligations with a duration greater than one year, comprised of software maintenance contracts, was $2.0 million.
Contract Costs
We recognize an other-asset for the incremental costs of obtaining a contract with a customer if we expect the benefit of those costs to be longer than
one year. We have determined that certain sales commissions meet the requirements to be capitalized, and we amortize these costs on a consistent
basis with the pattern of transfer of the goods and services in the contract. Total capitalized costs to obtain a contract were immaterial during the
periods presented and are included in other current and long-term assets on our consolidated balance sheets.
We apply a practical expedient to expense costs as incurred for costs to obtain a contract when the amortization period is one year or less. These
costs include sales commissions on software maintenance contracts with a contract period of one year or less as sales commissions paid on contract
renewals are commensurate with those paid on the initial contract.
Income Taxes – We compute deferred income taxes based on the differences between the financial statement and tax basis of assets and liabilities
using enacted rates in effect in the years in which the differences are expected to reverse. We establish a valuation allowance to offset temporary
deductible differences, net operating loss carryforwards and tax credits when it is more likely than not that the deferred tax assets will not be
realized.
We recognize the tax benefit from an uncertain tax position only if it is more-likely-than-not that the tax position will be sustained upon examination
by the taxing authorities, based on the technical merits of the tax position. The evaluation of an uncertain tax position is based on factors that
include, but are not limited to, changes in the tax law, the measurement of tax positions taken or expected to be taken in tax returns, the effective
settlement of matters subject to audit, and changes in facts or circumstances related to a tax position. Any changes to these estimates, based on the
actual results obtained and/or a change in assumptions, could impact our tax provision in future periods. Interest and penalty charges, if any, related
to unrecognized tax benefits would be classified as a provision for income tax in the consolidated statements of operations and comprehensive loss.
Capitalization of Software Costs – We capitalize certain costs to develop software products to be sold, leased, or marketed to external users after
technological feasibility of the product has been established. No software costs were capitalized during the years ended December 31, 2022 and
2021, because such costs incurred between the period after technological feasibility to product release were immaterial.
The Company capitalizes and amortizes certain direct costs associated with computer software developed or purchased for internal use incurred
during the application development stage. Costs related to preliminary project activities and post-implementation activities are expensed as incurred.
The Company amortizes capitalized software costs generally over three to five years, commencing on the date the software is placed into service.
No software costs were capitalized during the years ended December 31, 2022 and 2021, because such costs were related to converting our existing
products into a hosted solution.
Research and Development Costs – Costs incurred in the research and development of our products are expensed as incurred.
Concentration of Credit Risk – At December 31, 2022 and 2021, we had cash and cash equivalents, in excess of federally insured deposit limits of
approximately $11.5 million and $29.7 million, respectively.
43
Concentration of credit risk with respect to net accounts receivable and unbilled receivables consisted of amounts owed by the following customers
that comprised more than 10% of net accounts receivable and unbilled receivables at December 31:
Customer A
Customer B
2022
2021
26 %
11 %
27 %
5 %
We had no customer in 2022 or 2021 that provided 10% or more of revenue.
Stock-Based Compensation – We grant stock and stock options to our employees and directors. We measure stock-based compensation cost at the
grant date based on the fair value of the award and recognize stock-based compensation expense on a straight-line basis over the requisite service
period of the award.
For stock awards, we determine the fair value of the award by using the fair market value of our stock on the date of grant; provided the number of
shares in the grant is fixed on the grant date.
For stock options, we use the Black-Scholes option valuation model to estimate the fair value of the award. This valuation model takes into account
the exercise price of the award, as well as a variety of significant assumptions. The assumptions used to estimate the fair value of stock options
include the expected term, the expected volatility of our stock over the expected term, the risk-free interest rate over the expected term, and our
expected annual dividend yield.
Computation of Earnings per Share – Basic earnings per share is computed by dividing income available to common shareholders by the weighted
average number of common shares outstanding. Diluted earnings per share is computed by dividing income available to common shareholders by
the weighted average number of common shares outstanding plus additional common shares that would have been outstanding if dilutive potential
common shares had been issued. For the purposes of this calculation, stock options are considered common stock equivalents in periods in which
they have a dilutive effect. Stock options that are antidilutive are excluded from the calculation.
Fair Value of Financial Instruments – The carrying amounts of cash and cash equivalents, accounts receivable, accounts payable and accrued
expenses approximate fair value because of their short-term nature.
Segments – We organize ourselves into a single segment reporting to the chief operating decision maker, who we have designated as our Chief
Executive Officer.
We conduct our operations in the United States and sell our products and services to domestic and international customers. Revenues were
generated from the following geographic regions (in thousands):
United States
Brazil
United Kingdom
Rest of world
Revenue by product group was (in thousands):
License and service contracts
Subscription-based contracts
Year ended
December 31,
2022
2021
7,613 $
953
1,717
5,725
16,008 $
9,624
1,938
1,726
3,566
16,854
Year ended
December 31,
2022
2021
12,937 $
3,071
16,008 $
14,164
2,690
16,854
$
$
$
$
44
Revenue included by product group consists of all associated revenue within the contract, including license revenue, maintenance revenue, and
services and other revenue. Revenue by product group may be recognized at a point in time or over-time. These revenues are attributable to both
contracts with fixed fees or guaranteed minimums.
Revenue by timing of transfer of goods or services was (in thousands):
Goods or services transferred at a point in time
Goods or services transferred over time
3
PROPERTY AND EQUIPMENT
Property and equipment consisted of the following at December 31 (in thousands):
Land
Building and improvements
Computer and office equipment
Purchased software
Furniture and fixtures
Total
Less accumulated depreciation
Property and equipment, net
Year ended
December 31,
2022
2021
7,178 $
8,830
16,008 $
7,992
8,862
16,854
2022
2021
— $
146
859
78
573
1,656
(930 )
726 $
1,056
9,166
1,310
155
778
12,465
(9,249 )
3,216
$
$
$
$
Depreciation expense was $0.3 million and $0.5 million for the years ended December 31, 2022 and 2021, respectively. The change in accumulated
depreciation for the year ended December 31, 2022 primarily related to the sale and disposal of property and equipment related to our former
corporate headquarters.
4. GAIN ON SALE OF FIXED ASSETS
On July 15, 2022, we completed our sale to FDS Bedford, LLC of our former corporate headquarters located at 40 Middlesex Turnpike, Bedford,
Massachusetts for total proceeds of $8.9 million less a brokerage commission of $0.3 million.
We recorded a gain of $5.7 million on the sale and disposed of gross assets of $11.5 million and net book value of $2.9 million, of which of $1.8
million was property and equipment and $1.1 million was land.
5. ACQUISTION
In December 2021, we acquired 100% of the outstanding shares and acquired all of the assets and liabilities of FortressID for a purchase price of
$3.4 million, which consisted of $2.5 million of cash consideration and contingent acquisition payments with a fair value of $0.9 million. The
maximum contingent acquisition payments at the time of the acquisition was $4.0 million and required cash payments of up to $2.0 million for set
revenue targets in 2022 and another $2.0 million for set revenue targets in 2023. No revenue targets were achieved in 2022 and the maximum
contingent acquisition payments as of December 31, 2022 is $2.0 million. The acquisition of FortressID, expands our offerings around identity
proofing-enhancing its onboarding, verification and authentication offerings to directly address financial compliance requirements and enable
organizations to mitigate risk and curtail increasing fraud.
The acquisition was accounted for as a business combination, whereby all the assets acquired and liabilities assumed were recognized at fair value
on the acquisition date, with any excess of the consideration transferred
45
over the fair value of the net assets acquired recognized as goodwill. Unaudited pro forma results of operations assuming the above acquisition had
taken place at the beginning of each period are not provided because the historical operating results and pro forma results would not be materially
different from reported results for the periods presented.
The fair values recorded were based on a valuation performed by a third-party valuation specialist. The following table summarizes the fair values
of the assets acquired and liabilities assumed at the date of acquisition (in thousands):
Customer relationships
Developed technology
Trade name / trademarks
Goodwill
Gross assets acquired
Net working capital
Fair value of contingent consideration
Net assets acquired
$
$
1,740
430
10
1,469
3,649
(11 )
(919 )
2,719
After allocating the purchase price to the assets acquired and liabilities assumed based on their fair values at the date of acquisition, we recorded
goodwill of approximately $1.5 million, which included $0.3 million related to the release of certain deferred tax assets. Goodwill largely consists
of expected synergies to be realized from combining operations. The goodwill is deductible for income tax purposes.
6.
INTANGIBLE ASSETS
The fair value of intangible assets and their estimated useful live as of December 31, 2022 are as follows (dollars in thousands):
Customer relationships
Developed technology
Trade name / trademarks
Useful Life
8 and 10 years $
5 and 7 years
3 and 7 years
$
Gross
Amount
Accumulated
Amortization
Net Book
Value
$
2,680
710
30
3,420 $
424 $
180
10
614 $
2,256
530
20
2,806
The fair value of intangible assets and their estimated useful live as of December 31, 2021 are as follows (dollars in thousands):
Customer relationships
Developed technology
Tradenames
Gross
Amount
Accumulated
Amortization
Net Book
Value
$
2,680
710
30
3,420 $
$
132
63
3
198 $
2,548
647
27
3,222
Useful Life
8 and 10 years $
5 and 7 years
3 and 7 years
$
46
During the years ended December 31, 2022 and 2021 we recorded $415 thousand and $176 thousand of amortization expense on intangible assets,
respectively. The Company expects to record amortization for the years ended December 31 as follows (in thousands):
2023
2024
2025
2026
2027
Thereafter
$
$
415
415
415
412
412
737
2,806
7. SUBSCRIPTION AGREEMENT
On March 11, 2022, concurrently with our entry into a mutual reseller arrangement with MIRACL, we entered into a subscription agreement with
Omlis. We purchased $2.5 million of the Omlis’ Note that accrues interest at 5% annually with a maturity date of March 11, 2026.
Prior to maturity, we have the right to convert the Note into the securities issued in a future financing at a 20% discount from the price per share paid
by the investors in that financing. If the Note remains outstanding on the maturity date, the Note shall, at the option of the holders of a majority of
the outstanding Note, (i) be converted into the most senior shares in Omlis, (ii) be redeemed by payment in cash of the Note and all accrued but
unpaid interest or (iii) remain outstanding.
In connection with the sale of the Note, Omlis granted us a right of first refusal for 18 months with respect to any proposed sale by Omlis of equity
securities constituting 20% or more of the outstanding voting power of Omlis or all or substantially all of the assets of Omlis or any of its material
subsidiaries. Also, in connection with the sale of the Note, Omlis issued the Company a warrant that expires on September 11, 2023, which allows
us to purchase up to 8% of the total equity shares in Omlis at a price per share of $33.91.
We initially recorded the Note and warrants at their fair values in accordance with ASC 825, Financial Instruments, for the Note and ASC 815,
Derivatives and Hedging, for the warrants, which were $2.5 million and $0, respectively. Interest income of $0.1 million was earned during the year
ended December 31, 2022. The $0.1 million in accrued interest is included in the fair value of $2.6 million for the Note as of December 31, 2022.
At December 31, 2022, there was no change to the fair value of the warrant, which were valued at $0 in each period.
8.
INCOME TAXES
We recorded a provision for income tax of $49 thousand for the year ended December 31, 2022. We recorded a benefit for income taxes of $0.3
million in the year ended December 31, 2021 related to a release of our valuation allowance as a result the deferred taxes recorded as part of the
FortressID acquisition. The components of the provision (benefit) from income taxes are as follows (in thousands):
Current:
Federal
State
Deferred:
Federal
State
Year ended
December 31,
2022
2021
$
34 $
15
49
—
—
—
-
—
—
(147 )
(122 )
(269 )
Provision (benefit) from income taxes
$
49 $
(269 )
47
The 2022 difference between the effective tax rate and the U.S federal statutory rates was driven primarily due to the change in valuation allowance
of our deferred tax assets, state income taxes and stock-based compensation to the deferred tax assets. The 2021 difference between the effective tax
rate and the U.S federal statutory rates was driven primarily due to the change in valuation allowance of our deferred tax assets. A reconciliation of
the U.S. federal statutory rate to the effective tax rate is as follows:
Federal statutory rate
State rate, net of federal benefit
Tax credits
Permanent adjustments
Change in valuation allowance
Other
Effective tax rate
Year ended
December 31,
2022
2021
21 %
12
(2 )
(1 )
(24 )
(9 )
(3 )%
21 %
6
2
—
(24 )
(1 )
4 %
Deferred income taxes - We had net deferred tax assets of $11.1 million and $10.7 million as of December 31, 2022 and 2021 respectively. The
principal components of deferred tax assets, net, were as follows at December 31 (in thousands):
Depreciation
Stock-based compensation
Research and development credits
Capitalized research expense
Net operating loss
Other
Total deferred tax assts
Valuation allowance
Deferred tax liabilities
Depreciation
Intangibles
Total deferred tax liabilities
Net deferred tax assets (liabilities)
2022
2021
- $
554
6,817
1,557
2,562
335
11,825
367
405
6,904
3,380
254
11,310
(11,115 )
(10,730 )
(193 )
(517 )
(710 )
- $
—
(580 )
(580 )
-
$
$
As of December 31, 2022, $6.8 million of our deferred tax assets relate to research and development credit carryforwards. We assessed the need for
a valuation allowance on our deferred tax assets. We evaluated and considered all available evidence, both positive and negative, to determine
whether, based on the weight of that evidence, a valuation allowance for deferred tax assets was needed. As part of this analysis, we gave more
weight to recent, historical evidence than future projections as we consider the past more objective.
Further, a significant portion of our deferred tax assets relates to federal and state research and development credits. These credits may only offset
75% of the tax liability after net operating loss carryforwards are utilized and thus, we have the risk that the credits could expire before utilization if
sufficient taxable income in the carryforward periods doesn’t exist.
As of December 31, 2022, we had a federal net operating loss carryforward of $7.5 million, which may be available to offset future income tax
liabilities. $6.6 million of those NOLs can be carried forward indefinitely and the remaining $0.9 million expire in 2037. As of December 31, 2022,
we had State NOL carryforwards of $16.7 million, which expire at various dates though 2041.
We evaluated the positive and negative evidence bearing upon the realizability of our deferred tax assets, which are composed principally of net
operating loss carryforwards, capitalized research costs and research and development credits. Under the applicable accounting standards, we
considered our history of losses and concluded that is more likely that we will not recognize the benefits of feral and state deferred tax assets.
Therefore, we have recorded a full valuation allowance of $11.1 million and $10.7 million at December 31,
48
2022 and 2021, respectively. During the year ended December 31, 2022, we increased the valuation allowance by $0.4 million from the prior year
end. We will continue to monitor the evidence and the realizability of our deferred tax assets in future periods. Should evidence regarding the
realizability of our deferred tax assets change at a future point in time, we will adjust the valuation allowance as required.
Under Internal Revenue Code Section 382, if a corporation undergoes an “ownership change,” the corporation’s ability to use its pre-change NOL
carryforwards and other pre-change tax attributes to offset its post-change income may be limited. In connection with our acquisition of FortressID
during 2021, the historical NOL carryforwards of $3.5 million from FortressID are likely limited under Section 382 due to a change in ownership
triggered by the acquisition, however, we do not expect the limitation to result in any of the NOL carryforwards to expire unused. We have not
completed a study at the Aware, Inc. level to assess whether an “ownership change” has occurred or whether there have been multiple ownership
changes since we became a “loss corporation” as defined in Section 382. Future changes in our stock ownership, which may be outside of our
control, may trigger an “ownership change.” In addition, future equity offerings or acquisitions that have equity as a component of the purchase
price could result in an “ownership change.” If an “ownership change” has occurred or does occur in the future, utilization of the NOL carryforwards
or other tax attributes may be limited, which could potentially result in increased future tax liability to us.
Uncertain tax benefits - As of December 31, 2022 and 2021 we had $0.8 million of uncertain tax positions that was primarily related to our research
and development tax credits. There were no changes to this amount during each of the years ended December 31, 2022 and 2021. The uncertain tax
positions will impact our effective tax rate if realized.
Tax examinations – We file tax returns as prescribed by the tax laws of the jurisdictions in which we operate. In the normal course of business, we
are subject to examination by federal and state jurisdictions, where applicable. The earliest tax years that remain subject to examination by
jurisdiction is 2019 for both federal and Massachusetts. However, to the extent the Company utilizes net operating losses or credits from years prior
to 2019, the statute remains open to the extent of the net operating losses or other credits are utilized.
9. EQUITY AND STOCK COMPENSATION PLANS
Stock Option Plan – We have one active fixed stock option plan which is our 2001 Nonqualified Stock Plan (“2001 Plan”). We are authorized to
grant nonqualified stock options, stock appreciation rights and stock awards to our employees and directors for up to 8,000,000 shares of common
stock under this plan. As of December 31, 2022, there were 1,411,341 shares available for grant under the 2001 Plan.
Options are granted at exercise prices as determined by the Board of Directors and have a maximum term of ten years. Options generally vest over
three to five years.
The following table presents stock-based compensation expenses included in our consolidated statements of operations and comprehensive loss (in
thousands):
Cost of services and other
Research and development
Selling and marketing
General and administrative
Stock-based compensation expense
Years ended
December 31,
2022
2021
$
$
21 $
265
286
1,135
1,707 $
23
261
250
1,033
1,567
Stock-based compensation expense in the preceding table includes expenses associated with grants of: i) stock options, ii) unrestricted shares of our
common stock; and iii) performance share awards. The methods used to determine stock-based compensation expense for each type of equity grant
are described in the following paragraphs.
Stock Option Grants. For the years ended December 31, 2022 and 2021, we granted zero and 2,875,000 stock options, respectively. We estimate the
fair value of those stock options using the Black-Scholes valuation model.
49
The Black-Scholes valuation model takes into account the exercise price of the award, as well as a variety of significant assumptions. The
assumptions used to estimate the fair value of stock options include the expected term, the expected volatility of our stock over the expected term,
the risk-free interest rate over the expected term, and our expected annual dividend yield. We do not estimate our forfeiture rates as the actual
forfeiture rate is known at the end of each reporting period due to the timing of our stock option vesting. We believe that the valuation technique and
the approach utilized to develop the underlying assumptions are appropriate in calculating the fair values of stock options granted in the year ended
December 31 2021. Estimates of fair value are not intended to predict actual future events or the value ultimately realized by persons who receive
equity awards.
Unrestricted Stock Grants. Our 2001 Plan permits us to grant shares of unrestricted stock to our directors, officers, and employees. Stock-based
compensation expense for stock grants is determined based on the fair market value of our stock on the date of grant; provided the number of shares
in the grant is fixed on the grant date.
We granted 167,921 and 56,553 shares of unrestricted stock to directors, officers, and employees during the years ended December 31, 2022 and
2021, respectively. Of the shares granted in 2022, 61,460 were issued shortly after June 30, 2022 and 46,461 were issued shortly after December 31,
2022. The remaining 60,000 shares of unrestricted stock granted to an officer is to be issued in four equal installments in February 2022, and
August of 2022, 2023, and 2024. The unrestricted shares granted in 2021 were issued in two equal installments shortly after June 30, 2021 and
December 31, 2021.
Stock Options. Total options outstanding at December 31, 2022 and 2021 were as follows:
Outstanding at beginning of year
Granted
Exercised
Forfeited or cancelled
Outstanding at end of year
Exercisable at year end
2022
2021
Weighted
Average
Exercise
Price
4.97
-
-
5.00
4.96
6.00
Weighted
Average
Exercise
Price
6.00
4.73
-
4.73
4.97
6.00
Options
425,000 $
2,875,000
-
(60,000 )
3,240,000 $
218,748 $
Options
3,240,000 $
-
-
(680,000 )
2,560,000 $
250,000 $
At December 31, 2022, the weighted average remaining contractual term for total options outstanding and total options exercisable was
approximately 8.01 and 6.97 years, respectively.
At December 31, 2022, the aggregate intrinsic value of options outstanding and exercisable was $0. The intrinsic value of a stock option is the
amount by which the market value of the underlying stock exceeds the exercise price of the option.
50
The following table summarizes the stock options outstanding at December 31, 2022:
Exercise Price Range
$4 to $5
$5 to $6
$6 to $7
$7 to $8
Options Outstanding
Options Exercisable
Weighted
Average
Remaining
Contractual
Term
(in years)
Weighted
Average
Exercise
Price
4.72
5.50
6.50
7.50
4.96
8.11
6.86
6.86
6.86
8.01
Weighted
Average
Exercise
Price
4.50
5.50
6.50
7.50
6.00
Number
62,500 $
62,500 $
62,500 $
62,500 $
250,000 $
Number
2,316,250 $
81,250 $
81,250 $
81,250 $
2,560,000 $
At December 31, 2022, unrecognized compensation expense related to non-vested stock options was approximately $2.2 million, which is expected
to be recognized over a weighted average period of 2.0 years.
We issue common stock from previously authorized but unissued shares to satisfy option exercises and purchases under our Employee Stock
Purchase Plan.
Employee Stock Purchase Plan – In May 2021, we adopted the 2021 Employee Stock Purchase Plan (“2021 ESPP”) under which eligible
employees could purchase common stock at a price equal to 85% of the lower of the fair market value of the common stock at the beginning or end
of each six-month offering period. The 2021 ESPP Plan replaced our previous Employee Stock Purchase Plan (the “1996 ESPP”). Stock-based
compensation expense related to our 2021 ESPP was $0.1 million in each of the years ended December 31, 2022 and 2021. Participation in the 2021
ESPP is limited to $25,000 worth of stock for each calendar year and may be terminated at any time by the employee and automatically ends on
termination of employment. A total of 1,000,000 shares of common stock were reserved for issuance under the 2021 ESPP, and as of December 31,
2022, there were 870,435 shares available for future issuance thereunder. We issued 75,066 and 54,499 shares under the 2021 ESPP Plan during the
years ended December 31, 2022 and 2021 respectively. We issued 0 and 6,972 shares under the 1996 ESPP in the years ended December 31, 2022
and 2021, respectively.
Share Purchases - On March 1, 2022, our Board of Directors authorized a new stock repurchase program pursuant to which we may purchase up to
$10.0 million of our common stock, of which $1.3 million has been repurchased as of December 31, 2022. During the year ended December 31,
2022 we repurchased 705,201 shares of our common stock. The shares were purchased from time to time in the open market at management’s
discretion, depending upon market conditions and other factors. Repurchases where made under the program using our own cash resources and will
in accordance with Rule 10b-18 under the Securities Exchange Act of 1934. The program does not obligate us to acquire any particular amount of
common stock and the program may be modified or suspended at any time at our Board of Directors discretion.
Dividends – We did not pay dividends in the years ended December 31, 2022 and 2021.
10. LEASES
On October 1, 2022, our Lease for our principal executive offices with 76/80 BURLINGTON GROUP LLC (the “Landlord”) commenced. We
leased 20,730 rentable square feet at 76 Blanchard Road in Burlington, Massachusetts (the “Leased Space”) for a term of ten years and six months,
which includes a one-time termination right after seven years and six months. The term of the Lease commenced on October 1, 2022, the date that
the landlord notified us that the planned construction on the Leased Space was substantially complete. The Lease provides for an aggregate of $8.2
million of rent payments over the Lease term and also provides a renewal option for up to two additional terms of five years each.
The components of lease expense included in the consolidated statement of operations and comprehensive loss are as follows (in thousands):
Operating lease costs
$
51
For the Year Ended December 31,
2022
2021
182
$
-
Supplemental balance sheet information related to the Company's operating lease was as follows (in thousands):
Operating lease right-of-use assets
Current portion, operating lease liabilities
Operating lease liabilities, long term
Total operating lease liabilities
Weighted average remaining lease term (years)
Weighted average incremental borrowing rate
As of December 31,
2022
2021
$
$
4,538
470
4,047
4,517
10.3
10.1 %
$
$
-
-
-
-
The discount rate implicit in the lease was not readily determinable, as such, we engaged a third-party valuation specialist to calculate the
incremental borrowing rate (“IBR”). The IBR was determined as of the lease commencement date and was dependent on several factors including
the amount of lease payments, our credit rating based on a collateralized borrowing, the lease term and the currency of the lease.
Future minimum lease payments for operating leases with initial remaining terms in excess of one year as of December 31, 2022 are as follows:
2023
2024
2025
2026
2027
Thereafter
Total lease payments
Less implied interest
Total operating lease liabilities
$
$
497
667
687
708
729
4,202
7,490
(2,973 )
4,517
11. COMMITMENTS AND CONTINGENT LIABILITIES
Litigation - There are no material pending legal proceedings to which we are a party or to which any of our properties are subject which, either
individually or in the aggregate, are expected to have a material adverse effect on our business, financial position or results of operations.
52
Guarantees and Indemnification Obligations – We enter into agreements in the ordinary course of business that require us: i) to perform under the
terms of the contracts, ii) to protect the confidentiality of our customers’ intellectual property, and iii) to indemnify customers, including
indemnification against third party claims alleging infringement of intellectual property rights. We also have agreements with each of our directors
and executive officers to indemnify such directors or executive officers, to the extent legally permissible, against all liabilities reasonably incurred in
connection with any action in which such individual may be involved by reason of such individual being or having been a director or officer of the
Company.
Given the nature of the above obligations and agreements, we are unable to make a reasonable estimate of the maximum potential amount that we
could be required to pay. Historically, we have not made any significant payments on the above guarantees and indemnifications and no amount has
been accrued in the accompanying consolidated financial statements with respect to these guarantees and indemnifications.
12. EMPLOYEE BENEFIT PLAN
In 1994, we established a qualified 401(k) Retirement Plan (the “Plan”) under which employees are allowed to contribute certain percentages of
their pay, up to the maximum allowed under Section 401(k) of the Internal Revenue Code. Our contributions to the Plan are at the discretion of the
Board of Directors. Our contributions were $0.4 million in 2022 and 2021.
13. NET LOSS PER SHARE
The number of common shares used in the computation of diluted net loss per share for the periods presented does not include the effect of the
following potentially outstanding common shares because the effect would have been anti-dilutive (in thousands):
Stock options
Net loss per share is calculated as follows (in thousands, except per share data):
Year ended
December 31,
2022
2021
2,982
2,823
Net loss
Shares outstanding:
Weighted-average common shares outstanding
Additional dilutive common stock equivalents
Diluted shares outstanding
Net loss per share – basic
Net loss per share - diluted
14. SUBSEQUENT EVENTS
Year ended
December 31,
2022
2021
(1,726 )
21,604
—
21,604
(0.08 ) $
(0.08 ) $
(5,824 )
21,525
—
21,525
(0.27 )
(0.27 )
$
$
We have evaluated subsequent events or transactions that have occurred after the consolidated balance sheet date of December 31, 2022 through the
date of this filing of the consolidated financial statements with the SEC on this Annual Report on Form 10-K. No material subsequent events have
occurred since December 31, 2022 through the date of this filing that would require recognition or disclosure in our consolidated financial
statements.
53
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we conducted an
evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). Based on this evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls
and procedures were effective as of the end of the period covered by this annual report.
Evaluation of Changes in Internal Control Over Financial Reporting
Under the supervision and with the participation of our management, including our chief executive officer and chief financial officer, we concluded that
there were no changes in our internal control over financial reporting that occurred during the year ended December 31, 2022 that have materially affected,
or are reasonably likely to materially affect, our internal control over financial reporting.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13(a)-15(f) under the
Exchange Act. Under the supervision and with the participation of our management, including our principal executive officer and principal financial
officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control -
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. Based on our evaluation under the
framework in Internal Control — Integrated Framework, our management concluded that our internal control over financial reporting was effective as of
December 31, 2022.
ITEM 9B. OTHER INFORMATION
None.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information required by Item 10 of Form 10-K is incorporated by reference from the information contained in the sections captioned “Directors and
Executive Officers”, “Corporate Governance” and “Section 16(a) Beneficial Ownership Reporting Compliance” in the Proxy Statement that will be
delivered to our shareholders in connection with our June 7, 2023 Annual Meeting of Shareholders.
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 11 of Form 10-K is incorporated by reference from the information contained in the section captioned “Executive
Compensation” in the Proxy Statement that will be delivered to our shareholders in connection with our June 7, 2023 Annual Meeting of Shareholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER
MATTERS
The information required by Item 12 of Form 10-K is incorporated by reference from the information contained in the section captioned “Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder
54
Matters” in the Proxy Statement that will be delivered to our shareholders in connection with our June 7, 2023 Annual Meeting of Shareholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information, if any, required by Item 13 of Form 10-K is incorporated by reference from the information contained in the sections captioned
“Corporate Governance” and “Certain Relationships and Related Transactions” in the Proxy Statement that will be delivered to our shareholders in
connection with our June 7, 2023 Annual Meeting of Shareholders.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by Item 14 of Form 10-K is incorporated by reference from the information contained in the section captioned “Independent
Accountants” in the Proxy Statement that will be delivered to our shareholders in connection with our June 7, 2023 Annual Meeting of Shareholders.
55
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE
The following documents are filed as part of this report:
(a) Financial Statements and Exhibits:
PART IV
(1) Report of Independent Registered Public Accounting Firm (PCAOB ID No. 49)
Consolidated Balance Sheets as of December 31, 2022 and 2021
Consolidated Statements of Operations and Comprehensive Loss for each of the two years in the period ended December 31, 2022
Consolidated Statements of Cash Flows for each of the two years in the period ended December 31, 2022
Consolidated Statements of Stockholders’ Equity for each of the two years in the period ended December 31, 2022
Notes to Consolidated Financial Statements
Page
25
28
29
30
31
34
(2) Exhibits:
The exhibits listed below are filed with or incorporated by reference in this report.
Exhibit No.
Description of Exhibit
3.1
3.2
Amended and Restated Articles of Organization, as amended (filed as Exhibit 3.1 to the Company’s Form 10-K for the year ended
December 31, 2008 and incorporated herein by reference).
Amended and Restated By-Laws (filed as Exhibit 3.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission
on December 10, 2007 and incorporated herein by reference).
4.1†
Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (filed
as Exhibit 4.1 to the Company’s Form 10-K for the year ended December 31, 2019 and incorporated herein by reference)
10.1*
2021 Employee Stock Purchase Plan, (filed as Annex A to the Company’s Proxy Statement on Schedule 14A filed with the Securities
and Exchange Commission on April 9, 2021 and incorporated herein by reference).
10.2*
Form of Indemnification Agreement for Directors and Officers of Aware, Inc. (filed as Exhibit 10.1 to the Company's Form 8-K filed
with the Securities and Exchange Commission on February 22, 2011 and incorporated herein by reference).
10.3*
2001 Nonqualified Stock Plan (filed as Exhibit 99(d)(4) to the Company’s Schedule TO filed with the Securities and Exchange
Commission on March 3, 2003 and incorporated herein by reference).
10.4*
10.5*
Form of Nonqualified Stock Option Agreement under the 2001 Nonqualified Stock Plan for options granted to executive officers and
directors prior to May 21, 2008 (filed as Exhibit 10.6 to Company’s Form 10-K for the year ended December 31, 2006 and incorporated
herein by reference).
Form of Nonqualified Stock Option Agreement under the 2001 Nonqualified Stock Plan for options granted to executive officers and
directors from and after May 21, 2008 (filed as Exhibit 10.8 to Company’s Form 8-K on May 22, 2008 and incorporated herein by
reference)
10.6*
Form of Unrestricted Stock Award for outside directors of Aware under the 2001 Nonqualified Stock Plan (filed as Exhibit 10.1 to
Company's Form 8-K filed with the Securities and Exchange Commission on July 28, 2010 and incorporated herein by reference).
10.7*
Form of Unrestricted Stock Award for officers of Aware under the 2001 Nonqualified Stock Plan (filed as Exhibit 10.2 to Company's
Form 8-K filed with the Securities and Exchange Commission on July 28, 2010 and incorporated herein by reference).
56
10.8*
Form of Unrestricted Stock Award for executive officers and directors of Aware, Inc. under the 2001 Nonqualified Plan (filed as Exhibit
10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on April 4, 2013 and incorporated herein by
reference).
10.9*
Employment Agreement between Aware, Inc. and Robert A. Eckel (filed as Exhibit 10.1 to the Company’s Form 8-K filed with the
Securities and Exchange Commission on September 19, 2019 and incorporated herein by reference).
10.10*
Performance Share Award Agreement between Aware, Inc. and Robert A. Eckel (filed as Exhibit 10.2 to the Company’s Form 8-K filed
with the Securities and Exchange Commission on September 19, 2019 and incorporated herein by reference).
10.11*
Employment Agreement between Aware, Inc. and Robert M. Mungovan (filed as Exhibit 10.1 to the Company’s Form 8-K filed with the
Securities and Exchange Commission on October 1, 2019 and incorporated herein by reference).
10.12*
Amendment to Employment Agreement dated as of July 15, 2022, by and between Aware, Inc. and Robert Mungovan (filed as Exhibit
10.1 to the Company's Form 8-K filed with the Securities and Exchange Commission on July 20, 2022 and incorporated herein by
reference).
10.13*
Employment Agreement between Aware, Inc. and Mohamed Lazzouni (filed as Exhibit 10.1 to the Company’s Form 8-K filed with the
Securities and Exchange Commission on November 19, 2019 and incorporated herein by reference).
10.14*
Employment Agreement between Aware, Inc. and David B. Barcelo dated May 4, 2020 (filed as Exhibit 10.1 to Aware, Inc. Current
Report on Form 8-K filed with the Securities and Exchange Commission on May 4, 2020 and incorporated herein by reference).
10.15*
Aware, Inc. 20220 Executive Bonus Plan (incorporated by reference to Item 5.02 of the Aware, Inc. Current Report on Form 8-K filed
with the Securities and Exchange Commission on March 1, 2022 and incorporated herein by reference).
10.16*
10.17*
Amendment to Employment Agreement between Aware, Inc. and Robert Eckel dated March 27, 2020 (filed as Exhibit 10.2 to Aware
Inc. Current Report on Form 8-K filed with the Securities and Exchange Commission on March 30, 2020 and incorporate herein by
reference).
Lease dated as of March 1, 2022 by and between 76/80 Burlington Group, LLC and Aware, Inc. (filed as Exhibit 10.20 to Aware Inc.
Annual Report on Form 10-K for the year ended December 31, 2021 filed with the Securities and Exchange Commission and
incorporated herein by reference).
10.18*
Employment Agreement between Aware, Inc. and Craig Herman dated August 9, 2022.
21.1
23.1
31.2
32.1
101
Subsidiaries of Registrant.
Consent of Independent Registered Public Accounting Firm.
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
The following financial statements from Aware, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022, formatted
in inline XBRL (eXtensible Business Reporting Language), as follows: (i) Consolidated Balance Sheets as of December 31, 2022 and
December 31, 2021; (ii) Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2022 and
December 31, 2021; (iii) Consolidated Statements of Cash Flows for the Years Ended December 31, 2022 and December 31, 2021; (iv)
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2022 and December 31, 2021 and (v) Notes to
Consolidated Financial Statements.
104
Cover page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101
*Management contract or compensatory plan.
57
Pursuant to the requirements of Section 13 or 15(d) 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.
SIGNATURES
AWARE, INC.
By:
By:
/s/ Robert A. Eckel
Robert A. Eckel
Chief Executive Officer & President
/s/ David Barcelo
David Barcelo
Chief Financial Officer (Principal Financial and Accounting Officer)
Date: March 15, 2023
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant
and in the capacities indicated on the 15th day of March 2023.
Signature
Title
/s/ Robert A. Eckel
Robert A. Eckel
/s/ David Barcelo
David Barcelo
/s/ Brent P. Johnstone
Brent P. Johnstone
/s/ John S. Stafford, III
John S. Stafford, III
/s/ Brian D. Connolly
Brian D. Connolly
/s/ Gary Evee
Gary Evee
/s/ Peter Faubert
Peter Faubert
Chief Executive Officer, President & Director
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial and Accounting Officer)
Chairman of the Board & Director
Director
Director
Director
Director
58
EMPLOYMENT AGREEMENT
Exhibit 10.18
This Employment Agreement (this “Agreement”) is entered into as of August 8, 2022 (the “Effective Date”), by and
between Aware, Inc., a Massachusetts corporation with its principal offices located at 40 Middlesex Turnpike, Bedford,
Massachusetts 01730 (together with its successors and assigns, the "Company"), and Craig Herman (the "Executive").
WHEREAS, the Company desires to employ the Executive on the terms and conditions of this Agreement; and
WHEREAS, the Executive desires to be an employee of the Company on the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties agree as
follows:
1.
Employment.
1.1.
Term. The term of this Agreement shall commence on the Effective Date and shall continue
until terminated in accordance with the provisions hereof (the “Term”). The Executive’s employment with the Company will be
“at will,” meaning that the Executive’s employment may be terminated by the Company or the Executive at any time and for any
reason subject to the terms of this Agreement.
1.2.
Position and Duties. During the Term, the Executive shall serve as the Chief Revenue Officer
of the Company, reporting to the Chief Executive Officer of the Company. The Executive shall devote his full working time and
efforts to the business and affairs of the Company. Notwithstanding the foregoing, the Executive may serve on boards of
directors, with the approval of the Board of Directors of the Company (the “Board”), or engage in religious, charitable or other
community activities as long as such services and activities are disclosed to the Board and do not materially interfere with the
Executive’s performance of his duties to the Company as provided in this Agreement.
2.
Compensation and Related Matters.
2.1.
Base Salary. During the Term, the Executive’s annual base salary will be $250,000.00. The
Executive’s base salary shall be reviewed annually by the Board or the Compensation Committee of the Board (the
“Compensation Committee”). The base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary
shall be payable in a manner that is consistent with the Company’s usual payroll practices for executive officers.
2.2.
Incentive Compensation. During the Term, the Executive shall be eligible to receive annual
cash incentive compensation as determined by the Board or the Compensation Committee from time to time. The Executive’s
initial target annual incentive compensation shall be up to $250,000.00 of his Base Salary and tied to Company performance
targets as determined by the Compensation Committee. To earn incentive compensation, the Executive must be
employed by the Company on the day such incentive compensation is paid. For 2022, the Executive’s incentive compensation
shall be prorated to reflect the Effective Date of this agreement.
Expenses. The Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him during the Term in performing services hereunder, in accordance with the policies and procedures then
in effect and established by the Company for its executive officers.
2.3.
accordance with the Unrestricted Stock Award Agreement dated August 8, 2022 between the Company and the Executive.
2.4.
Equity. The Executive shall be entitled to receive an equity award(s) consistent with and in
2.5.
Additional Equity. In addition to the equity granted pursuant to Section 2.4, the Executive
shall be eligible to receive such additional equity awards of the Company from time to time as determined by the Compensation
Committee or the Board.
2.6.
Other Benefits. During the Term, the Executive shall be eligible to participate in or receive
benefits under the Company’s employee benefit plans in effect from time to time, subject to the terms of such plans.
Additionally, during the Term, the Executive shall be eligible to receive such benefits and perquisites as those made available to
the other employees of the Company generally and to similarly situated senior executives of the Company.
2.7.
Vacations. During the Term, the Executive shall be entitled to paid vacation in accordance
with the Company’s policies and procedures, which at the outset shall be 20 days in addition to the Company’s paid holidays.
The vacation time will increase over time if the Company’s policies so provide. The Executive shall also be entitled to all paid
holidays given by the Company to its executive officers.
3.
Termination. During the Term, the Executive’s employment hereunder may be terminated without any breach
of this Agreement under the following circumstances:
3.1.
Death. The Executive’s employment hereunder shall terminate upon his death.
3.2.
Disability. The Company may terminate the Executive’s employment if he is disabled and
unable to perform the essential functions of the Executive’s then existing position or positions under this Agreement with any
reasonable accommodation required by law for a period of 180 days (which need not be consecutive) in any 12-month period. If
any question shall arise as to whether during any period the Executive is disabled so as to be unable to perform the essential
functions of the Executive’s then existing position or positions with any reasonable accommodation required by law, the
Executive may, and at the request of the Company shall, submit to the Company a certification in reasonable detail by a physician
selected by the Company to whom the Executive or the Executive’s guardian has no reasonable objection as to whether the
Executive is so disabled or how long such disability is expected to continue, and such certification shall for the purposes of this
Agreement be conclusive of the issue. The Executive shall cooperate with any reasonable request of the physician in connection
with such certification. If such question shall arise and the Executive shall fail to submit such
2
certification, the Company’s determination of such issue shall be binding on the Executive. Nothing in this Section 3.2 shall be
construed to waive the Executive’s rights, if any, under existing law including, without limitation, the Family and Medical Leave
Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
3.3.
Termination by Company for Cause. The Company may terminate the Executive’s
employment hereunder for Cause. For purposes of this Agreement, “Cause” shall mean: (a) the Executive has been charged by
the United States or a state or political subdivision thereof with conduct which is a felony or which is a misdemeanor involving
moral turpitude, deceit, dishonesty or fraud under the laws of the United States or any state or political subdivision thereof; (b)
fraud or embezzlement by the Executive with respect to funds of the Company or dishonest, unethical or improper conduct by the
Executive that has had, or is reasonably likely to have, a material adverse impact on the reputation for honesty and fair dealing of
the Company; (c) the Executive’s intentional failure to comply with lawful instructions not inconsistent with this Agreement
given to the Executive by the Board, which failure is not cured or corrected within thirty (30) days after the Executive’s receipt of
written notice from the Company referring to this Section and describing with specificity the instructions with which the
Executive did not comply; (d) the Executive’s material failure to comply with reasonable policies, directives, standards and
regulations adopted by the Company, including, without limitation, the Company’s policies regarding insider trading, except any
such failure, that, if capable of cure, is remedied by the Executive within thirty (30) days after the Executive’s receipt of written
notice from the Company referring to this paragraph and describing with specificity the failure of the Executive to comply; and
(e) material breach by the Executive of the Employee Non-Disclosure, Non-Competition and Intellectual Property Agreement by
and between the Executive and the Company (the “Employee Agreement”) or any other written agreement between the Executive
and the Company.
3.4.
Termination Without Cause. The Company may terminate the Executive’s employment
hereunder at any time without Cause. Any termination by the Company of the Executive’s employment under this Agreement
which does not constitute a termination for Cause under Section 3.3 and does not result from the death or disability of the
Executive under Section 3.1 or 3.2 shall be deemed a termination without Cause.
3.5.
Termination by the Executive. The Executive may terminate his employment hereunder at any
time for any reason, including but not limited to Good Reason. For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following events: (a) a relocation of the Executive's principal workplace to a location more than 50
miles from Bedford, Massachusetts without the Executive's express written consent; (b) a change in title after a Change in
Control without the Executive’s express written consent, provided that after a Change in Control a change in title shall not be
deemed to be “Good Reason” as long as the Executive does not have a material diminution of duties or authority; (c) a material
breach of the Agreement by the Company or (d) a material diminution in the Executive's compensation or benefits without the
express written consent of the Executive; provided, that no such event or occurrence shall constitute Good Reason unless (x)
written notice thereof is given by the Executive to the Company within ninety (90) days of its occurrence, (y) the Company shall
fail to remedy or cure such event or occurrence within thirty (30) days following its receipt of such notice from the Executive (the
“Cure Period”), and (z) the Executive shall within sixty
3
(60) days after the expiration of such 30-day period give written notice to the Company of his election to terminate his
employment pursuant to this paragraph by reason of such event or occurrence.
3.6.
Notice of Termination. Except for termination as specified in Section 3.1, any termination of
the Executive’s employment by the Company or any such termination by the Executive shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon.
3.7.
Date of Termination. “Date of Termination” shall mean: (i) if the Executive’s employment is
terminated by his death, the date of his death; (ii) if the Executive’s employment is terminated on account of disability under
Section 3.2 or by the Company for Cause under Section 3.3, the date on which Notice of Termination is given; (iii) if the
Executive’s employment is terminated by the Company under Section 3.4, the date on which a Notice of Termination is given;
(iv) if the Executive’s employment is terminated by the Executive under Section 3.5 without Good Reason, thirty (30) days after
the date on which a Notice of Termination is given, and (v) if the Executive’s employment is terminated by the Executive under
Section 3.5 with Good Reason, the date on which a Notice of Termination is given after the end of the Cure Period.
Notwithstanding the foregoing, in the event that the Executive gives a Notice of Termination to the Company, the Company may
unilaterally accelerate the Date of Termination and such acceleration shall not result in a termination by the Company for
purposes of this Agreement.
4.
Compensation Upon Termination.
4.1.
Termination Generally. If the Executive’s employment with the Company is terminated for
any reason, the Company shall pay or provide to the Executive (or to his authorized representative or estate) (i) any Base Salary
earned through the Date of Termination, unpaid expense reimbursements (subject to, and in accordance with, Section 2.3 of this
Agreement) and unused vacation that accrued through the Date of Termination on or before the time required by law but in no
event more than thirty (30) days after the Executive’s Date of Termination; and (ii) any vested benefits the Executive may have
under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or
provided in accordance with the terms of such employee benefit plans (collectively, the “Accrued Benefit”).
4.2.
Termination by the Company Without Cause or by the Executive with Good Reason.
During the Term, if the Executive’s employment is terminated by the Company without Cause as provided in Section 3.4, or the
Executive terminates his employment for Good Reason as provided in Section 3.5, then the Company shall pay the Executive his
Accrued Benefit. In addition, subject to the Executive signing and delivering to the Company a noncompetition agreement (the
“Noncompete Agreement”) in substantially the form attached hereto as Exhibit A and a general release (the “Release”)
substantially in the form attached hereto as Exhibit B, with the Release becoming irrevocable and fully effective and, if
applicable, the Executive resigning as a member of the Board of Directors, within 60 days after the Date of Termination:
4
(i)
(ii)
(iii)
(iv)
subject to clause (iv) below, the Company shall pay the Executive an amount equal to the
Executive’s Base Salary paid during the twelve (12) months immediately preceding the
termination of the Executive’s employment with the Company, divided by the number of days
employed during the twelve (12) months immediately preceding the termination of the
Executive’s employment with the Company and multiplied by 365 (the “Severance Amount”);
notwithstanding anything to the contrary in any applicable option agreement or stock-based
award agreement, all time-based stock options and other time-based stock-based awards held
by the Executive in which such stock option or other stock-based award would have vested if
the Executive had remained employed for an additional twelve (12) months following the Date
of Termination shall vest and become exercisable or nonforfeitable as of the Date of
Termination;
the Company paying the difference between the cost of COBRA continuation coverage, should
the Executive elect to receive it, for the Executive and any dependent who received health
insurance coverage prior to termination of the Executive’s employment with the Company, and
any premium contribution amount applicable to the Executive as of such termination, for a
period of twelve (12) months following the date of termination of the Executive’s employment
with the Company (“Continuation Benefits”). Continuation Benefits otherwise receivable by
the Executive will be reduced to the extent benefits of the same type are received by or made
available to him during the applicable twelve-month period (and any such benefits received by
or made available to the Executive shall be reported by him to the Company); and
the amounts payable under Section 4.2(i) and (iii) shall be paid out in substantially equal
installments in accordance with the Company’s payroll practice over twelve (12) months
commencing within 60 days after the Date of Termination; provided, however, that if the 60-
day period begins in one calendar year and ends in a second calendar year, the Severance
Amount shall begin to be paid in the second calendar year by the last day of such 60-day
period; provided, further, that the initial payment shall include a catch-up payment to cover
amounts retroactive to the day immediately following the Date of Termination.
5.
Change of Control Payment.
5.1.
The provisions of this Section 5 set forth certain terms of an agreement reached between the
Executive and the Company regarding the Executive’s rights and obligations upon the occurrence of a Change of Control of the
Company (as defined below).
5
These provisions are intended to assure and encourage in advance the Executive’s continued attention and dedication to his
assigned duties and his objectivity during the pendency and after the occurrence of any such event. These provisions shall apply
in lieu of, and expressly supersede, the provisions of Section 4.2 regarding severance pay and benefits upon a termination of
employment, if such termination of employment occurs within eighteen (18) months after the occurrence of the first event
constituting a Change of Control. These provisions shall terminate and be of no further force or effect beginning eighteen (18)
months after the occurrence of a Change of Control.
(a)
Change of Control. During the Term, if within eighteen (18) months after a
Change of Control, the Executive’s employment is terminated by the Company without Cause as provided in Section 3.4 or the
Executive terminates his employment for Good Reason as provided in Section 3.5, then, subject to the Executive signing and
delivering to the Company the Noncompete Agreement and the Release, and the Release becoming irrevocable and fully
effective and, if applicable, the Executive resigning as a member of the Board of Directors, all within 60 days after the Date of
Termination (or such shorter time period provided in the Release):
(i)
(ii)
(iii)
the Company shall pay the Executive a lump sum in cash an amount equal to (A) 1.5 times (B)
the Executive’s Base Salary paid during the twelve (12) months immediately preceding the
termination of the Executive’s employment with the Company, divided by the number of days
employed during the twelve (12) months immediately preceding the termination of the
Executive’s employment with the Company and multiplied by 365 (the “Change of Control
Severance Amount”);
notwithstanding anything to the contrary in any applicable option agreement or stock-based
award agreement, all time-based stock options and other time-based stock-based awards held
by the Executive as of the occurrence of such Change of Control shall immediately accelerate
and become fully exercisable or nonforfeitable as of the Date of Termination;
the Company paying the difference between the cost of COBRA continuation coverage, should
the Executive elect to receive it, for the Executive and any dependent who received health
insurance coverage prior to termination of the Executive’s employment with the Company, and
any premium contribution amount applicable to the Executive as of such termination, for a
period of eighteen (18) months following the date of termination of the Executive’s
employment with the Company (“Change of Control Continuation Benefits”). Change of
Control Continuation Benefits otherwise receivable by the Executive will be reduced to the
extent benefits of the same type are received by or made available to him during the applicable
eighteen-month period (and any such benefits
6
received by or made available to the Executive shall be reported by him to the Company); and
(iv)
the amounts payable under Section 5.1(a)(i) and 5.1(a)(iii) shall be paid or commence to be
paid within 60 days after the Date of Termination; provided, however, that if the 60-day period
begins in one calendar year and ends in a second calendar year, the Change of Control
Severance Amount shall be paid in the second calendar year by the last day of such 60-day
period.
5.2.
Definition of Change of Control. For purposes of this Agreement, a "Change of Control"
shall mean the occurrence of any of the following: (i) the acquisition by an individual, entity, group or any other person of
beneficial ownership of more than fifty percent (50%) or more of either (x) the then-outstanding shares of common stock of the
Company or (y) the combined voting power of the election of directors for the Company; and/or (ii) the sale of substantially all of
the Company's assets or a merger or sale of stock wherein the holders of the Company's capital stock immediately prior to such
sale do not hold at least a majority of the outstanding capital stock of the Company or its successor immediately following such
sale; and/or (iii) the Company’s shareholders approve and complete any plan or proposal for the liquidation or dissolution of the
Company.
6.
Other Provisions.
hereunder shall be less any federal, state or local withholding taxes and social security.
6.1.
Amounts Payable Less Withholding Taxes. The amounts payable by the Company
6.2.
Parachute Payments. It is the intention of the parties that no payment or benefit arising out
of or in connection with a Change of Control that is made or provided, or to be made or provided, by the Company to the
Executive, whether pursuant to the terms of this Agreement or any other plan, agreement, or arrangement (any such payment or
benefit, a “Parachute Payment”) shall be non‑deductible to the Company by reason of the operation of Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”) relating to parachute payments. Accordingly, and notwithstanding any
other provision of this Agreement or any such agreement or plan, if by reason of the operation of said Section 280G, any such
Parachute Payments exceed the amount which can be deducted by the Company, such Parachute Payments shall be reduced to the
maximum amount which can be deducted by the Company. To the extent that Parachute Payments exceeding such maximum
deductible amount have been made to the Executive or his beneficiary, he or his beneficiary shall refund such excess payments to
the Company with interest thereon at the Applicable Federal Rate determined under Section 1274(d) of the Code, compounded
annually, or at such other rate as may be required in order that no such payments shall be non‑deductible to the Company by
reason of the operation of said Section 280G. Any reduction in Parachute Payments required to be made pursuant to this Section
6.2 shall be made first with respect to Parachute Payments payable in cash before being made in respect to any Parachute
Payments to be provided in the form of benefits or equity award acceleration, and in the form of benefits before being made with
respect to equity award
7
acceleration, and in any case, shall be made with respect to such Parachute Payments in inverse order of the scheduled dates or
times for the payment or provision of such Parachute Payments.
6.3.
Section 409A. It is intended that this Agreement comply with or be exempt from Section
409A of the Internal Revenue Code and the Treasury Regulations and IRS guidance thereunder (collectively referred to as
“Section 409A”). Notwithstanding anything to the contrary in this Agreement, this Agreement shall, to the maximum extent
possible, be administered, interpreted, and construed in a manner consistent with Section 409A. If and to the extent required to
comply with Section 409A, no payment or benefit required to be paid under this Agreement on account of termination of the
Executive’s employment shall be made unless and until the Executive has a “separation from service” within the meaning of
Section 409A. In the case of any amounts payable under this Agreement that may be treated as payable in the form of “a series
of installment payments,” as defined in Treasury Regulation Section 1.409A-2(b)(2)(iii), the right to receive such payments shall
be treated as a right to receive a series of separate payments for purposes of such Treasury Regulation. If the Executive is a
“specified employee” as determined pursuant to Section 409A as of the date of termination of employment and if any payment
or benefit provided for in this Agreement or otherwise both (x) constitutes a “deferral of compensation” within the meaning of
Section 409A and (y) cannot be paid or provided in the manner otherwise provided without subjecting the Executive to additional
tax, interest, or penalties under Section 409A, then any such payment or benefit shall be delayed until the earlier of (i) the date
which is six (6) months after the Executive’s “separation from service” within the meaning of Section 409A for any reason other
than death, or (ii) the date of the Executive’s death. Any payment or benefit otherwise payable or to be provided to the Executive
upon or in the six (6) month period following “separation from service” that is not so paid or provided by reason of this Section
6.3 shall be accumulated and paid or provided to the Executive in a single lump sum, as soon as practicable (and in all events
within 15 days) after the date that is six (6) months after the Executive’s “separation from service” (or, if earlier, as soon as
practicable, and in all events within fifteen (15) days, after the date of the Executive’s death). All subsequent payments or
benefits, if any, shall be payable or provided in accordance with the payment schedule applicable to each payment or benefit. It is
the intent of this Agreement to comply with the requirements of Section 409A so that none of the severance payments and
benefits to be provided hereunder shall be subject to the additional tax imposed under Section 409A, and any ambiguities herein
shall be interpreted to so comply. The Company and the Executive agree to work together in good faith to consider amendments
to this Agreement and to take such reasonable actions that are necessary, appropriate or desirable to avoid imposition of any
additional tax or income recognition prior to actual payment to the Executive under Section 409A.
6.4.
Post-termination Determination of Cause.
(a)
If following termination of the Executive’s employment other than for Cause
there shall occur any event that would otherwise constitute Cause for termination of such employment, the Executive will repay
any Severance Amount, Change of Control Severance Amount, Continuation Benefits and Change of Control Continuation
Benefits previously paid, and his right to receive any future Severance Amount, Change of Control Severance Amount,
Continuation Benefits and Change of Control Continuation Benefits will terminate and any
8
Non-Compete and any Release provided by Executive to Company as part of his termination of employment shall be null and
void and treated as though never effective.
(b)
If the employment of the Executive is terminated by the Company for Cause
pursuant to Section 3.3(a) above, and if the charges of criminal conduct are subsequently dismissed, or the Executive is acquitted
of such charges, then in such event the Executive’s termination shall be deemed to have been made without Cause, and in such
event the Company shall pay to the Executive the amounts he would have been entitled had the Company terminated his
employment without Cause.
6.5.
Employee Agreement. The Executive acknowledges and agrees that the Employee
Agreement, except to the extent superseded by the Noncompete Agreement, is a binding and enforceable obligation of the
Executive that inures to the benefit of the Company’s successors and assigns, including any corporation with which or into which
the Company may be merged or which may succeed to its assets or business in a Change of Control.
Notices. Any notice or other communication required or permitted hereunder shall be in
writing and shall be deemed given when delivered personally (including by overnight courier) or, if sent by regular mail, three
days after the date of deposit in the United States mails addressed as follows:
6.6.
(a)
(b)
if to the Company, to:
Aware, Inc.
40 Middlesex Turnpike
Bedford, Massachusetts, 01730
Attention: Chair of the Compensation Committee
if to the Executive, to:
Craig Herman
or to such other address as either party may from time to time provide to the other by notice as provided in this section.
6.7.
Entire Agreement. This Agreement, the Employee Agreement, the Indemnification
Agreement and the Unrestricted Stock Award Agreement constitute the entire agreement and understanding between the
Company and the Executive, and supersede all prior negotiations, agreements, arrangements, and understandings, both written or
oral, between the Company and the Executive with respect to the subject matter of this Agreement. In the event of a discrepancy
between any of these documents, the Employment Agreement will control unless specifically provided for in any provision of the
Indemnification Agreement or Unrestricted Stock Award Agreement.
6.8.
Waiver or Amendment.
9
The waiver by either party of a breach or violation of any term or provision
of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach or violation of any
provision of this Agreement or of any other right or remedy.
(a)
set forth in a writing that specifically refers to this Agreement and is signed by the Executive and the Company.
(b)
No provision in this Agreement may be amended unless such amendment is
the laws of The Commonwealth of Massachusetts without regard to its conflict of laws rules.
6.9.
Governing Law. This Agreement shall be governed by and construed in accordance with
6.10.
Successors; Assignment. The Company shall require any successor via a Change of Control
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession
had taken place. This Agreement shall inure to the benefit of, and shall be binding upon, each of the Company and the Executive
and their respective heirs, personal representatives, legal representatives, successors and assigns.
6.11.
Severability. The invalidity of any one or more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part
hereof. If any part of this Agreement shall be declared invalid by a court of competent jurisdiction, this Agreement shall be
construed as if such invalid part had not been inserted.
6.12.
Section Headings. The section and subsection headings contained in this Agreement are for
reference purposes only and shall not affect any way the meaning, construction or interpretation of any or all of the provisions of
this Agreement.
6.13.
Counterparts. This Agreement may be executed in any number of counterparts and by the
separate parties hereto in separate counterparts, each of which shall be deemed to constitute an original and all of which shall be
deemed to be one and the same instrument.
6.14.
Authority to Execute. The undersigned representative of the Company represents and warrants
that he has full power and authority to enter into this Agreement on behalf of the Company, and that the execution, delivery and
performance of this Agreement have been authorized by the Board. Upon the Executive's acceptance of this Agreement by
signing and returning it to the Company, this Agreement will become binding upon the Executive and the Company.
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.
EXECUTIVE
AWARE, INC.
__________________________
Craig Herman
By: _________________________
11
NONCOMPETE AGREEMENT
Exhibit A
This NONCOMPETE AGREEMENT (the "AGREEMENT"), made as of the 8th day of August, 2022, is entered into
between Aware, Inc., a Massachusetts corporation with offices at 40 Middlesex Turnpike, Bedford, Massachusetts 01730 (the
"Company") and Craig Herman an individual (the "Employee").
RECITALS:
A. The Company is willing to grant certain severance and other benefits to the Employee, under the circumstances
specified in that certain Employment Agreement dated [ ], 2020 between the Company and the Employee (the “Employment
Agreement”); and
B. As set forth in the Employment Agreement, the Employee's execution of this Agreement is a condition to his receipt of
such benefits;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
NON-COMPETITION COVENANTS.
(a)
NON-COMPETITION COVENANTS. The Employee agrees that he will not, during
the Non-Competition Period (as hereinafter defined), directly or indirectly:
(i)
as owner, employee, officer, director, partner, sales representative, agent, stockholder, capital
investor, lessor, consultant or advisor, either alone or in association with others (other than as a holder of not more than
one percent of the outstanding shares of any series or class of securities of a company, which securities of such class or
series are publicly traded in the securities markets), develop, design, produce, market, sell or render (or assist any other
person or entity in developing, designing, producing, marketing, selling or rendering), products or services which are
competitive with the Business of the Company (as hereinafter defined) anywhere in the world;
(ii)
solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of any
of the customers, prospective customers or referral sources of the Company with whom the Company has had a
relationship during the period of the Employee's employment by the Company; or
(iii)
recruit, solicit or hire any employee of the Company, or induce or attempt to induce any employee of
the Company to terminate his or her employment with, or otherwise cease his or her relationship with, the Company.
12
(b)
DEFINITIONS. For the purposes of this Section 1, the following terms shall have the
respective meanings indicated below:
(i)
"NON-COMPETITION PERIOD" shall mean the period during which the Employee is employed by
the Company and the one-year period commencing on the last day of the Employee's employment by the Company,
regardless of whether the Employee's termination was at the election of the Company, with or without cause, or at the
election of the Employee, with or without good reason.
"BUSINESS OF THE COMPANY" shall mean the development, manufacture, marketing and/or distribution of (A) biometric
technologies or wavelet compression technologies or (B) any other products or services which the Company sells, has under
development or which are subject to active planning at any time during the term of the Employee's employment with the
Company.
2.
INJUNCTIVE AND OTHER EQUITABLE RELIEF.
(a)
The Employee consents and agrees that if he violates any of the provisions of Section
1 hereof, the Company shall be entitled, in addition to any other remedies it may have at law, to the
remedies of injunction, specific performance and other equitable relief for a breach by the Employee of
Section 1 of this Agreement. This Section 2(a) shall not, however, be construed as a waiver of any of
the rights which the Company may have for damages or otherwise.
(b)
Any waiver by the Company of a breach of any provision of Section 1 hereof shall not
operate or be construed as a waiver of any subsequent breach of such provision or any other provision
hereof.
(c)
The Employee agrees that each provision of Section 1 shall be treated as a separate
and independent clause, and the unenforceability of any one clause shall in no way impair the
enforceability of the other clauses herein. Moreover, if one or more of the provisions contained in
Section 1 shall for any reason be held to be excessively broad as to scope, activity or subject so as to be
unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body
by limiting and reducing it or them so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear.
(d)
If the Company shall prevail in any action, suit or other proceeding (whether at law, in
equity or otherwise) instituted concerning or arising out of this Agreement, it shall recover, in addition
to any other remedy granted to it therein, all its costs and reasonable attorneys’ fees incurred in
connection with the prosecution or defense of such action, suit or other proceeding.
3.
OTHER AGREEMENTS.
13
The Employee represents and warrants that his performance of all the terms of this Agreement and as an employee of the
Company does not and will not breach any other agreement by which he is bound.
4.
NOT A CONTRACT OF EMPLOYMENT.
The Employee understands that this Agreement does not constitute a contract of employment or give the Employee rights to
employment or continued employment by the Company.
5.
ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement. In particular, this Agreement supersedes Section 10 of
the Employee Agreement, but the rest of the Employee Agreement remains in full force and effect.
6.
AMENDMENT.
This Agreement may be amended or modified only by a written instrument executed by both the Company and the Employee.
7.
GOVERNING LAW.
This Agreement shall be construed, interpreted and enforced in accordance with the laws of The Commonwealth of
Massachusetts, without regard to its choice of law principles. The Employee hereby consents to (a) service of process, and to be
sued, in The Commonwealth of Massachusetts and (b) to the jurisdiction of the courts of The Commonwealth of Massachusetts
and the United States District Court for the District of Massachusetts, as well as to the jurisdiction of all courts to which an
appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of any of Employee's
obligations hereunder, and Employee expressly waives any and all objections he or she may have as to venue in any such courts.
8.
SUCCESSORS AND ASSIGNS
. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged or which may succeed to its assets or business,
provided, however, that the obligations of the Employee are personal and shall not be assigned by him.
9.
MISCELLANEOUS.
(a)
No delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any
one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any
right on any other occasion.
14
(b)
The captions of the sections of this Agreement are for convenience of reference only
and in no way define, limit or affect the scope or substance of any section of this Agreement.
(c)
This Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision hereof shall be prohibited or invalid under any such law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating or
nullifying the remainder of such provision or any other provisions of this Agreement. If any one or
more of the provisions contained in this Agreement shall for any reason be held to be excessively broad
as to duration, geographical scope, activity or subject, such provisions shall be construed by limiting
and reducing it so as to be enforceable to the maximum extent permitted by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
AWARE, INC.
By:
Name:
Title:
EMPLOYEE
Craig Herman
15
Exhibit B
GENERAL RELEASE AND WAIVER OF ALL CLAIMS
(INCLUDING OLDER WORKER BENEFITS PROTECTION ACT CLAIMS)
For good and valuable consideration, including without limitation the compensation and benefits set forth in the Employment
Agreement dated [ ], 202 (the “Agreement”) between the undersigned and Aware, Inc. (the “Company”), to
which this General Release and Waiver of All Claims is attached, the terms of which Agreement shall survive this General
Release and Waiver of Claims, the undersigned, on behalf of and for himself or herself and his or her heirs, administrators,
executors, representatives, estates, attorneys, insurers, successors and assigns (hereafter referred to separately and collectively as
the “Releasor”), hereby voluntarily releases and forever discharges the Company, and its subsidiaries (direct and indirect),
affiliates, related companies, divisions, predecessor and successor companies, and each of its and their present, former, and future
shareholders, officers, directors, employees, agents, representatives, attorneys, insurers and assigns (collectively as “Releasees”),
jointly and individually, from any and all actions, causes of action, claims, suits, charges, complaints, contracts, covenants,
agreements, promises, debts, accounts, damages, losses, sums of money, obligations, demands, and judgments all of any kind
whatsoever, known or unknown, at law or in equity, in tort, contract, by statute, or on any other basis, for contractual,
compensatory, punitive or other damages, expenses (including attorney’s fees and cost), reimbursements, or costs of any kind,
which the undersigned employee ever had, now has, or may have, from the beginning of the world to the date of this Release,
known or unknown, in law or equity, whether statutory or common law, whether federal, state, local or otherwise, including but
not limited to any and all claims arising out of or in any way related to the undersigned’s engagement by the Company (including
the hiring or termination of that engagement), or any related matters including, but not limited to claims, if any arising under the
Age Discrimination in Employment Act of 1967, as amended by the Older Worker Benefits Protection Act; the Civil Rights Act
of 1964, as amended; the Civil Rights Act of 1991, as amended; the Family and Medical Leave Act of 1993, as amended; the
Immigration Reform and Control Act of 1986; the Americans with Disabilities Act of 1990, as amended; the Employee
Retirement Income Security Act (ERISA), as amended; the Massachusetts laws against discrimination and harassment (including
Mass. Gen. L. c. 151B), protecting equal rights or concerning the payment of wages (including Mass. Gen. L. c. 149, section 148
et seq. and Mass. Gen. L. c. 151, section 1A, et seq.), and federal, state or local common law, laws, statutes, ordinances or
regulations. Notwithstanding the foregoing, nothing contained in this General Release and Waiver of Claims shall be construed
to bar any claim by the undersigned to enforce the terms of the Agreement.
Releasor represents and acknowledges the following:
(a) that Releasor understands the various claims Releasor could have asserted under federal or state law, including but
not limited to the Age Discrimination in Employment Act, Mass. Gen. L. c. 151B, the Massachusetts Wage Act and
Massachusetts overtime pay law and other similar laws;
16
(b) that Releasor has read this General Release carefully and understands all of its provisions;
(c) that Releasor understands that Releasor has the right to and is advised to consult an attorney concerning this General
Release and in particular the waiver of rights Releasor might have under the laws described herein and that to the
extent, if any, that Releasor desired, Releasor availed himself or herself of this right;
(d) that Releasor has been provided at least twenty-one (21) days to consider whether to sign this General Release and
that to the extent Releasor has signed this General Release before the expiration of such twenty-one (21) day period
Releasor has done so knowingly and willingly;
(e) that Releasor enters into this General Release and waives any claims knowingly and willingly; and
(f)
that this General Release shall become effective seven (7) days after it is signed. Releasor may revoke this General
Release within seven (7) days after it is signed by delivering a written notice of rescission to Chair, Compensation
Committee of the Board of Directors at Aware, Inc., 40 Middlesex Turnpike, Bedford, Massachusetts 01730. To be
effective, the notice of rescission must be hand delivered, or postmarked within the seven (7) day period and sent by
certified mail, return receipt requested, to the referenced address.
Signed and sealed this ____ day of _____________, 20__.
Signed: __________________________
Name (print): ___________________________
17
Name of Organization
Aware Security Corporation
Fort3ss, Inc.
SUBSIDIARIES OF REGISTRANT
Exhibit 21.1
Jurisdiction
Massachusetts
Delaware
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements on Form S-8 (333-62020 and 333-106569) of Aware, Inc. of our report dated
March 15, 2022, relating to the consolidated financial statements of Aware, Inc. and its subsidiary, appearing in this Annual Report on Form 10-K of
Aware, Inc. for the year ending December 31, 2022 and December 31, 2021.
Exhibit 23.1
/s/ RSM US LLP
Boston, Massachusetts
March 15, 2023
1.
2.
3.
4.
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Robert A. Eckel, Chief Executive Officer of Aware, Inc., certify that:
I have reviewed this annual report on Form 10-K of Aware, Inc.;
Based on my knowledge, this annual 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 annual report;
Based on my knowledge, the financial statements, and other financial information included in this annual 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 annual report;
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 15d-
15(f)) for the registrant and we have:
a)
b)
c)
d)
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 annual report is being prepared;
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;
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation;
and
disclosed in this annual 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 registrant’s board of directors (or persons performing the equivalent function):
a)
b)
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
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:
March 15, 2023
/s/ Robert A. Eckel
Robert A. Eckel
Chief Executive Officer & President
1.
2.
3.
4.
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
I, David Barcelo, Chief Financial Officer of Aware, Inc., certify that:
I have reviewed this annual report on Form 10-K of Aware, Inc.;
Based on my knowledge, this annual 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 annual report;
Based on my knowledge, the financial statements, and other financial information included in this annual 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 annual report;
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 15d-
15(f)) for the registrant and we have:
a)
b)
c)
d)
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 annual report is being prepared;
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;
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation;
and
disclosed in this annual 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 registrant’s board of directors (or persons performing the equivalent function):
a)
b)
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
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:
March 15, 2023
/s/ David Barcelo
David Barcelo
Chief Financial Officer
CERTIFICATION PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
In connection with the Annual Report on Form 10-K of Aware, Inc. (the “Company”) for the year ended December 31, 2022, as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned Chief Executive Officer and Chief Financial Officer of the
Company, certifies, to the best knowledge and belief of the signatory, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 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 results of operations of the
Exhibit 32.1
Company.
/s/ Robert A. Eckel
Robert A. Eckel
Chief Executive Officer & President
Date:
March 15, 2023
/s/ David Barcelo
David Barcelo
Chief Financial Officer
Date:
March 15, 2023
The certification set forth above is being furnished as an exhibit solely pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and is not
being filed as part of the Form 10-K or as a separate disclosure document of the Company or the certifying officers.