UNITED STATES
 SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
  FORM 10-Q
  Quarterly Report Pursuant To Section 13 Or 15(d) Of The
 Securities Exchange Act of 1934
  For the quarter ended September 30, 2009
  Commission file number 000-21129
  AWARE, INC.
 (Exact Name of Registrant as Specified in Its Charter)


Massachusetts

04-2911026(State or Other Jurisdiction of

(I.R.S. Employer Identification No.)Incorporation or Organization)





40 Middlesex Turnpike, Bedford, Massachusetts, 01730


(Address of Principal Executive Offices)


(Zip Code)





(781) 276-4000


(Registrant’s Telephone Number, Including Area Code)




Indicate by check whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.


YES x  NO o





Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required
to submit and post such files).  YES o NO o




Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See definition of  “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act. 
(Check one):


Large Accelerated Filer o  Accelerated Filer x   Non-Accelerated Filer o Smaller Reporting Company o





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


YES o  NO x





Indicate the number of shares outstanding of the issuer’s common stock as of October 20, 2009:


Class
Number of Shares OutstandingCommon Stock, par value $0.01 per share
19,782,128 shares




AWARE, INC.
 FORM 10-Q
 FOR THE QUARTER ENDED SEPTEMBER 30, 2009
  TABLE OF CONTENTS
 PagePART I
FINANCIAL INFORMATIONItem 1.
Unaudited Consolidated Financial StatementsConsolidated Balance Sheets as of  September 30, 2009 and December 31, 2008


3Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2009 and September 30, 2008


4Consolidated Statements of Cash Flows for the Three and Nine Months Ended September 30, 2009 and September 30, 2008


5Notes to Consolidated Financial Statements


6Item 2.
Management’s Discussion and Analysis of  Financial Condition and Results of Operations


13Item 3.
Quantitative and Qualitative Disclosures about Market Risk


19Item 4.
Controls and Procedures


19PART II
OTHER INFORMATIONItem 1.
Legal Proceedings


20Item 1A.
Risk Factors


20Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds


31Item 6.
Exhibits


32Signatures


32


2





PART 1. FINANCIAL INFORMATION


ITEM 1: CONSOLIDATED FINANCIAL STATEMENTS


AWARE, INC.


CONSOLIDATED BALANCE SHEETS


(in thousands, except share data)


(unaudited)





September 30,
2009


December 31,
2008ASSETSCurrent assets:Cash and cash equivalents

$
32,628


$
45,516Accounts receivable, net


3,780



2,211Inventories


1,130



1,656Prepaid expenses and other current assets


764



598Total current assets


38,302



49,981Property and equipment, net


6,841



7,463Assets held for sale


192



-Other assets, net


-



102Total assets

$
45,335


$
57,546LIABILITIES AND STOCKHOLDERS’ EQUITYCurrent liabilities:Accounts payable

$
418


$
466Accrued expenses


107



241Accrued compensation


1,106



1,480Accrued professional


213



167Deferred revenue


960



339Total current liabilities


2,804



2,693Long-term deferred revenue


330



330Stockholders’ equity:Preferred stock, $1.00 par value; 1,000,000 shares authorized,
none outstanding


-



-Common stock, $.01 par value; 70,000,000 shares authorized; issued
and outstanding 19,782,128 as of September 30, 2009 and 23,281,204
as of December 31, 2008


198



233Additional paid-in capital


75,707



83,143Accumulated deficit


(33,704
)


(28,853
)Total stockholders’ equity


42,201



54,523Total liabilities and stockholders’ equity

$
45,335


$
57,546




The accompanying notes are an integral part of the consolidated financial statements.




3




AWARE, INC.


CONSOLIDATED STATEMENTS OF OPERATIONS


(in thousands, except per share data)


(unaudited)


Three Months Ended


Nine Months EndedSeptember 30,


September 30,2009


2008


2009


2008Revenue:Product sales

$
4,661


$
3,939


$
11,332


$
11,811Contract revenue


1,005



2,014



3,725



5,313Royalties


554



437



1,500



1,310Total revenue


6,220



6,390



16,557



18,434Costs and expenses:Cost of product sales


857



528



2,413



1,976Cost of contract revenue


717



1,365



2,534



3,512Research and development


3,175



2,945



9,344



9,984Selling and marketing


1,251



1,141



3,517



3,297General and administrative


1,383



1,315



3,812



3,793Total costs and expenses


7,383



7,294



21,620



22,562Loss from operations


(1,163
)


(904
)


(5,063
)


(4,128
)Interest income


31



244



217



942Loss before provision for income taxes


(1,132
)


(660
)


(4,846
)


(3,186
)Provision for income taxes


1



3



5



16Net loss

$
(1,133
)

$
(663
)

$
(4,851
)

$
(3,202
)Net loss per share – basic

$
(0.06
)

$
(0.03
)

$
(0.23
)

$
(0.13
)Net loss per share – diluted

$
(0.06
)

$
(0.03
)

$
(0.23
)

$
(0.13
)Weighted average shares – basic


19,782



23,510



21,230



23,753Weighted average shares - diluted


19,782



23,510



21,230



23,753




The accompanying notes are an integral part of the consolidated financial statements.




4





AWARE, INC.


CONSOLIDATED STATEMENTS OF CASH FLOWS


(in thousands)


(unaudited)




Nine Months Ended
September 30,2009

2008Cash flows from operating activities:Net loss

$
(4,851
)
$
(3,202
)Adjustments to reconcile net loss to net cash provided by (used in) operating activities:Depreciation and amortization


662


688Stock-based compensation


1,476


1,115Provision for doubtful accounts


-


(25
)Increase (decrease) from changes in assets and liabilities:Accounts receivable


(1,568
)

3,320Inventories


526


(352
)Prepaid expenses


(166
)

77Accounts payable


(47
)

(295
)Accrued expenses


(463
)

390Deferred revenue


621


(139
)Net cash provided by (used in) operating activities


(3,810
)

1,577Cash flows from investing activities:Purchases of property and equipment


(131
)

(386
)Sales of investments


-


38,743Purchases of investments


-


(2,000
)Net cash provided by (used in) investing activities


(131
)

36,357Cash flows from financing activities:Proceeds from issuance of common stock


3


359Repurchase of common stock


(8,950
)

(2,290
)Net cash used in financing activities


(8,947
)

(1,931
)Increase (decrease) in cash and cash equivalents


(12,888
)

36,003Cash and cash equivalents, beginning of period


45,516


1,806Cash and cash equivalents, end of period

$
32,628

$
37,809




The accompanying notes are an integral part of the consolidated financial statements.




5





AWARE, INC.


NOTES TO CONSOLIDATEDFINANCIAL STATEMENTS


(unaudited)








A)           Basis of Presentation





The accompanying unaudited consolidated balance sheet, statements of operations, and statements of cash flows reflect all adjustments (consisting only of normal recurring items) which are, in the opinion of management, necessary for a fair presentation of financial position at September 30, 2009, and of operations and cash flows for the
interim periods ended September 30, 2009 and 2008.





The accompanying unaudited consolidated financial statements have been prepared in accordance with the instructions for Form 10-Q and therefore do not include all information and footnotes necessary for a complete presentation of our financial position, results of operations and cash flows, in conformity with generally accepted accounting
principles.  We filed audited financial statements which included all information and footnotes necessary for such presentation for the three years ended December 31, 2008 in conjunction with our 2008 Annual Report on Form 10-K.





The results of operations for the interim period ended September 30, 2009 are not necessarily indicative of the results to be expected for the year. We evaluated subsequent events through October 22, 2009, the date of financial statement issuance.





B)           Fair Value Measurements





The FASB issued authoritative guidance for fair value measurements in September 2006, which defines fair value, establishes a framework for measuring fair value, and expands disclosures assets and liabilities measured at fair value in financial statements. This guidance is now known as FASB Accounting Standards Codification 820 (ASC 820).
We adopted the provisions of ASC 820 as of January 1, 2008, for our financial instruments. Although the adoption of ASC 820 did not materially impact our financial condition, results of operations, or cash flow, we are now required to provide additional disclosures as part of our financial statements.





The fair value guidance establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value.  These tiers include: Level 1, defined as observable inputs such as quoted prices in active markets; Level 2, defined as inputs other than quoted prices in active markets that are either directly or
indirectly observable; and Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions.





For recognition purposes, on a recurring basis we are required to measure available for sale investments at fair value.  We had no available for sale investments as of September 30, 2009 or December 31, 2008.





Our cash and cash equivalents, including money market securities, were $32.6 million and $45.5 million as of September 30, 2009 and December 31, 2008, respectively. We classified our cash and cash equivalents within Level 1 of the fair value hierarchy because they are valued using quoted market prices.




6





C)           Inventory





Inventories are stated at the lower of cost or net realizable value with cost being determined by the first-in, first-out (“FIFO”) method.  Inventory reserves are established for estimated excess and obsolete inventory. Inventory consists primarily of the following (in thousands):





September 30,
2009


December 31,
2008Raw materials

$
1,129


$
1,650Finished goods


1



6Total

$
1,130


$
1,656





D)           Computation of Earnings per Share





Basic earnings per share is computed by dividing net income or loss by the weighted average number of common shares outstanding.  Diluted earnings per share is computed by dividing net income or loss 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 anti-dilutive are excluded from the calculation.





Net loss per share is calculated as follows (in thousands, except per share data):





Three Months Ended
September 30,


Nine Months Ended
September 30,2009


2008


2009


2008Net loss

$
(1,133
)

$
(663
)

$
(4,851
)

$
(3,202
)Weighted average common shares outstanding


19,782



23,510



21,230



23,753Additional dilutive common stock equivalents


-



-



-



-Diluted shares outstanding


19,782



23,510



21,230



23,753Net loss per share – basic and diluted

$
(0.06
)

$
(0.03
)

$
(0.23
)

$
(0.13
)








For the three month periods ended September 30, 2009 and 2008 potential common stock equivalents of 13,575 and 19,655, respectively, were not included in the per share calculation for diluted EPS, because we had a net loss and the effect of their inclusion would be anti-dilutive. For the nine month period ended September 30, 2009 and 2008
potential common stock equivalents of 5,654 and 246,688, respectively, were not included in the per share calculation for diluted EPS, because we had net losses and the effect of their inclusion would be anti-dilutive.




7




For the three month periods ended September 30, 2009 and 2008, options to purchase 7,444,493 and 6,795,494 shares of common stock, respectively, were outstanding, but were not included in the computation of diluted EPS because the options’ exercise prices were greater than the average market price of the common stock and thus would
be anti-dilutive.  For the nine month periods ended September 30, 2009 and 2008, options to purchase 7,555,393 and 4,419,787 shares of common stock, respectively, were outstanding, but were not included in the computation of diluted EPS because the options’ exercise prices were greater than the average market price of the common stock and thus would be anti-dilutive.





E)            Stock-Based Compensation





The following table presents stock-based employee compensation expenses included in our unaudited consolidated statements of operations (in thousands):





Three Months Ended
September 30,


Nine Months Ended
September 30,2009


2008


2009


2008Cost of product sales

$
3


$
3


$
8


$
9Cost of contract revenue


36



45



105



105Research and development


174



136



458



463Selling and marketing


140



52



249



133General and administrative


324



161



656



405Stock-based compensation expense

$
677


$
397


$
1,476


$
1,115





We estimate the fair value of stock options using the Black-Scholes valuation model. This valuation model takes into account the exercise price of the award, as well as a variety of significant assumptions. These 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 believe that the valuation technique and the approach utilized to develop the underlying assumptions areappropriate in calculating the fair values of our stock options granted in the three and nine months ended September 30, 2009 and 2008. Estimates of fair value are not intended to predict actual future events or the value ultimately
realized by persons who receive equity awards.





In September 2009, the compensation committee of the board of directors approved an amendment to certain director and officer stock options that extended the period of time option holders have to exercise upon termination from the company. This stock option modification resulted in a non cash stock-based compensation charge of $268,000
in the three month period ended September 30, 2009.  An additional immaterial non cash charge will be amortized to expense over the next two years.





8





F)           Business Segments





We organize itself as one segment and conduct our operations in the United States.





We sell our products and technology to domestic and international customers.  Revenues were generated from the following geographic regions (in thousands):




Three Months Ended


Nine Months EndedSeptember 30,


September 30,2009


2008


2009


2008United States

$
3,837


$
4,532


$
9,336


$
13,431Germany


1,353



1,406



3,922



3,776Rest of World


1,030



452



3,299



1,227$
6,220


$
6,390


$
16,557


$
18,434





G)            Income Taxes





As of December 31, 2008, we had federal net operating loss and research and experimentation credit carryforwards of approximately $46.5 million and $12.8 million respectively, which may be available to offset future federal income tax liabilities and expire at various dates from 2009 through 2029.  In addition, at December 31,
2008, we had approximately $11.4 million and $6.6 million of state net operating losses and state research and development and investment tax carryforwards, respectively, which expire at various dates from 2009 through 2023.





Based on an analysis that we performed under Internal Revenue Code Section 382 on our NOLs generated for the period 1997 through 2007, we have not experienced a change in ownership as defined by Section 382, and, therefore, the NOLs are not currently under any Section 382 limitation.





H)           Recent Accounting Pronouncements





We describe below recent pronouncements that have had or may have a significant effect on our financial statements. We do not discuss recent pronouncements that are not anticipated to have an impact on or are unrelated to our financial condition, results of operations, or disclosures.





In June 2009, the FASB issued Update No. 2009-01, which establishes the FASB Accounting Standards CodificationTM (the Codification) as the source of authoritative accounting principles recognized by the FASB to be applied by nongovernmental entities in the preparation of financial statements in conformity with generally
accepted accounting principles (GAAP).  The Codification is effective for interim and annual periods ending after September 15, 2009.  We adopted the Codification when referring to GAAP in this quarterly report on Form 10-Q for the fiscal period ending September 30, 2009.  The adoption of the Codification did not have an impact on our consolidated results.





The FASB issued authoritative guidance related to subsequent events in May 2009, which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. This guidance is set forth in Topic 855 in the Accounting
Standards Codification (ASC 855). ASC 855 provides guidance on the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements, the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements and the disclosures that an entity should make about events or transactions that occurred after
the balance sheet date. We adopted ASC 855 in the second quarter of 2009, and its application had no impact on our consolidated financial statements.




9




The FASB issued authoritative guidance for fair value measurements in September 2006, which defines fair value, establishes a framework for measuring fair value, and expands disclosures assets and liabilities measured at fair value in financial statements. This guidance is set forth in Topic 820 in the Accounting Standards Codification
(ASC 820). ASC 820 does not require any new fair value measurements but rather eliminates inconsistencies in guidance found in various prior accounting pronouncements. ASC 820 is effective for fiscal years beginning after November 15, 2007. However, on February 6, 2008, the FASB issued authoritative guidance which deferred the effective date of ASC 820 for one year for nonfinancial assets and nonfinancial liabilities that are recognized or disclosed at fair value in the financial statements on a recurring
basis. We adopted ASC 820 on January 1, 2008, except as it applies to those nonfinancial assets and nonfinancial liabilities as noted in the FASB’s February 6, 2008 guidance. We adopted the provisions of ASC 820 that relate to nonfinancial assets and nonfinancial liabilities on January 1, 2009. The adoption of ASC 820 did not have a material impact on our consolidated financial position, results of operations or cash flows.





In December 2007, the FASB issued authoritative guidance related to noncontrolling interests in consolidated financial statements, which was an amendment of ARB No. 51. This guidance is set forth in Topic 810 in the Accounting Standards Codification (ASC 810). ASC 810 establishes accounting and reporting standards for the noncontrolling
interest in a subsidiary and for the deconsolidation of a subsidiary. This accounting standard is effective for fiscal years beginning after December 15, 2008. We adopted ASC 810 on January 1, 2009. The adoption of ASC 810 did not have a material impact on our consolidated financial position, results of operations or cash flows.





In December 2007, the FASB issued revised authoritative guidance for business combinations, which establishes principles and requirements for how the acquirer in a business combination: i) recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, an any noncontrolling interest in the
acquiree, ii) recognizes and measures the goodwill acquired in the business combination or a gain from a bargain purchase, and iii) determines what information to disclose to enable users of the financial statements to evaluate the nature and financial effects of the business combination. This guidance is set forth in Topic 805 in the Accounting Standards Codification (ASC 805). This accounting standard is effective for fiscal years beginning after December 15, 2008. We adopted ASC 805 on January 1, 2009. The
adoption of ASC 805 did not have a material impact on our consolidated financial position, results of operations or cash flows as of the date of adoption. ASC 805 will be applied to any future business combinations.





In September 2009, the EITF reached final consensus on a new revenue recognition standard, Issue No. 08-1, “Revenue Arrangements with Multiple Deliverables,” (EITF 08-1). EITF 08-1 addresses how to determine whether an arrangement involving multiple deliverables contains more than one unit of accounting, and how the arrangement
consideration should be allocated among the separate units of accounting. This Issue is effective for fiscal years beginning after June 15, 2010 and may be applied retrospectively or prospectively for new or materially modified arrangements. In addition, early adoption is permitted. We are currently evaluating the potential impact of EITF 08-1 on our consolidated financial statements.




10




In September 2009, the EITF reached final consensus on a new revenue recognition standard, Issue No. 09-3, “Applicability of AICPA Statement of Position 97-2 to Certain Arrangements That Contain Software Elements” (EITF 09-3). EITF 09-3 amends the scope of AICPA Statement of Position 97-2,Software
Revenue Recognition  to exclude tangible products that include software and non-software components that function together to deliver the product’s essential functionality. This Issue shall be applied on a prospective basis for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010. Earlier application is permitted as of the beginning of a company’s fiscal year provided the company has not previously issued financial statements
for any period within that year. An entity shall not elect early application of this Issue unless it also elects early application of Issue 08-1. We are currently evaluating the potential impact of EITF 09-3 on our consolidated financial statements.





I)           Share Repurchase Program





On August 28, 2007, we announced a stock repurchase program to purchase up to $5.0 million of our common stock, subject to market conditions and other factors. Any purchases under our stock repurchase program may be made from time to time without prior notice. On October 29, 2008, we announced that the program had been amended to increase
the total amount of common stock that may be repurchased from $5.0 million to $10.0 million and to extend the period of time that shares may be repurchased from December 31, 2008 to December 31, 2009. As of September 30, 2009, we had repurchased 721,131 shares of common stock at a total cost of $2.4 million under this program.We did not repurchase any shares during the three and nine month periods ended September 30, 2009.





On March 5, 2009, we announced a modified Dutch auction self-tender offer to purchase up to 3,500,000 shares, or approximately 15%, of our outstanding common stock (including the associated preferred share purchase rights), at a price in the range of $2.20 to $2.60 per share, for a maximum aggregate purchase price of approximately $9.1
million.  The terms of the tender offer also provided the right for us to purchase up to an additional 2% of our shares if the offer was oversubscribed.





The tender offer closed on April 17, 2009, and on April 23, 2009 we repurchased 3,500,252 shares at $2.50 per share for a total cost of $9.0 million, including expenses.





J)            Subsequent Event





On October 14, 2009, we entered into an agreement with Lantiq Broadband Holdco, Inc. and Lantiq Deutschland GmbH (“Lantiq”) to sell certain assets associated with our home networking and DSL technology for $6.75 million. Lantiq is a newly formed fabless semiconductor company that was spun out of Infineon Technologies AG (“Infineon”).
The planned sale includes: (i) our home networking and DSL technology; (ii) certain patents related to these technologies; and (iii) a group of approximately 40 engineers and the equipment used by those engineers.  The transaction is subject to closing conditions, including the closing of the acquisition of Infineon’s Wireline Division by Golden Gate Capital/Lantiq. The transaction is expected to close in the fourth quarter of 2009.




11




Aware and Lantiq have agreed that, after the closing of the sale: (i)  they will amend and restate theexisting license agreement between Aware and Infineon to provide Lantiq (as successor to Infineon) certain non-exclusive licenses of Aware patent rights; (ii) they will
cooperate with each other with respect to embedded wireline diagnostic technology and products; (iii) Aware will sublease certain office and lab space to Lantiq at its main facilities in Bedford, Massachusetts; and (iv) subject to certain exceptions, Aware will not participate in the Home Networking and DSL Business for the three years immediately following the closing of the sale.





K)           Assets Held For Sale





In connection with the Lantiq transaction described in Note J, we reclassified $192,000 of net property and equipment and other assets to assets held for sale as of September 30, 2009. Assets held for sale represents the net book value of $141,000 of property and equipment and $51,000 of other assets.




12




ITEM 2:


Management’s Discussion and Analysis of


Financial Condition and Results of Operations








Cautionary Statement for Purposes of the “Safe Harbor” Provisions of the Private Securities Litigation Reform Act of 1995





Some of the information in this Form 10-Q contains forward-looking statements that involve substantial risks and uncertainties.  You can identify these statements by forward-looking words such as “may,” “will,” “expect,” “anticipate,” “believe,” “estimate,”
“continue” and similar words.  You should read statements that contain these words carefully because they: (1) discuss our future expectations; (2) contain projections of our future operating results or financial condition; or (3) state other “forward-looking” information.  However, we may not be able to predict future events accurately.  The risk factors listed in this Form 10-Q, as well as any cautionary language in this Form 10-Q, provide examples of risks,
uncertainties and events that may cause our actual results to differ materially from the expectations we describe in our forward-looking statements.  You should be aware that the occurrence of any of the events described in these risk factors and elsewhere in this Form 10-Q could materially and adversely affect our business.








Summary.We organize ourselves as one segment with three product lines. Our product lines include i) licensing products, ii) test and diagnostics products, and ii) biometrics products.  We conduct our operations in the United States, and our products are
typically distributed worldwide through an OEM sales model.





Our licensing products consist of: i) DSL technology products, ii) home networking technology products, and iii) patents related to DSL, home networking and other technologies. Our technology products are licensed to semiconductor companies that sell chipsets that incorporate our technology.  Our patents are sold or licensed to
third parties interested in acquiring such patent rights.





Our test and diagnostics products consist of DSL hardware and software products that are used by telephone companies to improve the quality of their DSL service offerings. Our test and diagnostics products are typically sold to OEMs that incorporate our products into their products. Our OEM customers sell their equipment and software products
to telephone companies.





Our biometrics products consist of software and services used in biometric systems. Biometric systems are used by governments and enterprises to verify the identification of people. Biometrics systems are used in applications such as border control, secure credentialing, and background checks. We typically sell our biometrics software and
services to OEMs and system integrators that incorporate our products into their biometrics hardware and software systems. We also sell a modest amount of medical imaging software that is included in our biometrics product line revenue.





On October 14, 2009, we entered into an agreement with Lantiq to sell certain assets associated with our home networking and DSL technology for $6.75 million. Lantiq is a newly formed fabless semiconductor company that was spun out of Infineon. The planned sale includes: i) our home networking and DSL technology products; ii) certain patents
and patent applications related to these technologies; and iii) a group of approximately 40 engineers and the equipment used by those engineers.  The transaction is subject to closing conditions, including the closing of the acquisition of Infineon’s Wireline Division by Golden Gate Capital/Lantiq.The transaction is expected to close in the fourth quarter of 2009.




13





Upon closing the Lantiq transaction, we will no longer derive DSL contract revenue from Infineon or Lantiq.  Over the past several years, contract revenue from this source has ranged from $0.5 million to $1.0 million per quarter. We will amend and restate the existing license agreement between us
and Infineon to provide Lantiq (as successor to Infineon) certain non-exclusive licenses of our patent rights, and to continue Lantiq’s royalty obligations to Aware.We also expect to continue to derive contract revenue for engineering support and royalties per our existing agreements with Ikanos.  We will not be pursuing new silicon intellectual property licensing customers for DSL or home networking applications. In addition, Aware will sublease
certain office and lab space to Lantiq at its main facilities in Bedford, Massachusetts.





Upon closing the Lantiq transaction, we expect that quarterly licensing engineering expenses will decrease by $1.7 million to $2.0 million as a result of the transfer of approximately 40 engineers to Lantiq.





We expect the Lantiq transaction will have a minimal impact on the future financial results of our DSL test and diagnostics and our biometrics product lines. Aware and Lantiq will cooperate with one another with respect to embedded wireline diagnostics technology and products.





The planned Lantiq transaction did not affect our results of operations for the three and nine month periods ended September 2009.




Results of Operations





Product Sales.  Product sales consist primarily of revenue from the sale of hardware and software products.  Hardware products consist of DSL test and diagnostics hardware, including systems,
modules, and modems. Software products consist of software products for biometric, medical imaging and digital imaging applications, as well as DSL test and diagnostics software.





Product sales increased 18% from $3.9 million in the third quarter of 2008 to $4.7 million in the current year quarter.  As a percentage of total revenue, product sales increased from 62% in the third quarter of 2008 to 75% in the current year quarter.  The dollar increase in product sales was primarily due to an increase
in revenue from the sale of test and diagnostic hardware and software.





For the nine months ended September 30, 2009, product sales decreased 4% from $11.8 million in 2008 to $11.3 million in 2009. As a percentage of total revenue, product sales increased from 64% in the first nine months of 2008 to 68% in the corresponding period of 2009. The dollar decrease in product sales was primarily due to a decrease
in revenue from the sale of biometric software, which was mostly offset by an increase in revenue from the sale of test and diagnostic hardware and software.





We do not expect the planned Lantiq transaction to materially affect future product sales.





Contract Revenue. Contract revenueconsists of patent, license and engineering service fees that we receive under agreements relating to the sale or license of Aware’s patents, DSL technology, DSL
test and diagnostics technology, and biometrics technology.




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Contract revenue decreased 50% from $2.0 million in the third quarter of 2008 to $1.0 million in the current year quarter.  As a percentage of total revenue, contract revenue decreased from 32% in the third quarter of 2008 to 16% in the current year quarter. The dollar decrease in contract revenue was equally attributable to lower
revenue from biometrics technology contracts and DSL technology contracts.





For the nine months ended September 30, 2009, contract revenue decreased 30% from $5.3 million in 2008 to $3.7 million in 2009. As a percentage of total revenue, contract revenue decreased from 29% in the first nine months of 2008 to 22% in the corresponding period of 2009. The dollar decrease in contract revenue was primarily due to decreased
revenue from biometrics technology contracts. Revenue from biometrics technology contracts was lower in the current year period primarily because revenue from a large project that commenced in late 2007 was lower.





Upon closing the Lantiq transaction, we expect that contract revenue from DSL technology contracts will decline by $0.5 million to $1.0 million per quarter. Post-closing contract revenue is expected to consist of revenue from some or all of the following sources: i) Ikanos; ii) biometrics technology contracts; and iii) sales and/or licenses
of patents. We will not be pursuing new silicon IP licensing customers for DSL or home networking applications.





Royalties.  Royalties consist of royalty payments that we receive under agreements with our customers.  We receive royalties from customers for rights
to Aware technology and/or patents, typically associated with the incorporation of Aware technology and/or patents in customer chipsets or solutions.





Royalties increased 27% from $437,000 in the third quarter of 2008 to $554,000 in the current year quarter. As a percentage of total revenue, royalties increased from 7% in the third quarter of 2008 to 9% in the current year quarter. The dollar increase in royalties was primarily due to an increase in ADSL and VDSL royalties.





For the nine months ended September 30, 2009, royalties increased 14% from $1.3 million in 2008 to $1.5 million in 2009. As a percentage of total revenue, royalties increased from 7% in the first nine months of 2008 to 9% in the corresponding period of 2009.  The dollar increase in royalties was primarily due to an increase in
VDSL royalties.





Our royalty revenue currently comes predominantly from ADSL chipset sales by Ikanos and ADSL and VDSL chipset sales by Infineon’s wireline semiconductor group. The Lantiq transaction will not alter the royalty obligations of Ikanos or Lantiq, which we expect to continue per the existing agreements with those parties. We remain uncertain
as to whether these licensees will be able to maintain their market shares and chipset prices in the face of intense competition, and whether our relationships with them will contribute meaningful royalties to us in the future.





Upon closing the Lantiq transaction, we will not be pursuing new silicon intellectual property licensing customers for DSL or home networking applications.





Cost of Product Sales.  Since the cost of software product sales is minimal, cost of product sales consists primarily of the cost of hardware product sales.





Cost of product sales increased 62% from $528,000 in the third quarter of 2008 to $857,000 in the current year quarter.  As a percentage of product sales, cost of product sales increased from 13% in the third quarter of 2008 to 18% in the current year quarter, which resulted in gross margins on product sales decreasing from 87%
to 82%. The cost of product sales dollar increase was primarily due to higher sales of test and diagnostics hardware. The decrease in product gross margins was primarily due to a greater proportion of hardware sales in product sales in the current quarter versus the year ago quarter.





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For the nine months ended September 30, 2009, cost of product sales increased 22% from $2.0 million in 2008 to $2.4 million in 2009. As a percentage of product sales, cost of product sales increased from 17% in the first nine months of 2008 to 21% in the corresponding period of 2009, which resulted in gross margins on product sales decreasing
from 83% to 79%. The cost of product sales dollar increase was primarily due to: i) higher sales of hardware products; and ii) the mix of hardware products sold in the current year period versus the prior year period. The decrease in product gross margins was primarily due to a greater proportion of hardware sales in product sales in the current nine month period versus the same period last year.




We do not expect the planned Lantiq transaction to materially affect future cost of product sales.





Cost of Contract Revenue.  Cost of contract revenue consists primarily of compensation costs for engineers and expenses for consultants, technology licensing fees, recruiting, supplies, equipment,
depreciation and facilities associated with customer development projects.  Our total engineering costs are allocated between cost of contract revenue and research and development expense.  In a given period, the allocation of engineering costs between cost of contract revenue and research and development is a function of the level of effort expended on each.




Cost of contract revenue decreased 47% from $1.4 million in the third quarter of 2008 to $0.7 million in the current year quarter.  Cost of contract revenue as a percentage of contract revenue, was 68% in the third quarter of 2008 and 71% in the current quarter, which resulted in gross margins on contract revenue decreasing from
32% to 29%. The dollar decrease in cost of contract revenue was primarily due to lower revenue from biometrics technology contracts and DSL technology contracts.





For the nine months ended September 30, 2009, cost of contract revenue decreased 28% from $3.5 million in the first nine months of 2008 to $2.5 million in the corresponding period of 2009.  Cost of contract revenue as a percentage of contract revenue increased from 66% in the first nine months of 2008 to 68% in the corresponding
period of 2009, which resulted in gross margins on contract revenue decreasing from 34% to 32%. The dollar decrease in cost of contract revenue was primarily due to lower revenue from biometrics technology contracts.





Upon closing the Lantiq transaction, we expect that cost of contract revenue in future periods will decline by an amount equal to 80% to 90% of the decrease in DSL contract revenue that was eliminated as a result of the Lantiq transaction.





Research and Development Expense.  Research and development expense consists primarily of compensation costs for engineers and expenses for consultants, recruiting, supplies, equipment, depreciation and facilities related to engineering projects to improve
our broadband intellectual property offerings, as well as our software and hardware product technology.





Research and development expenses increased 8% from $2.9 million in the third quarter of 2008 to $3.2 million in the current year quarter. As a percentage of total revenue, research and development expense increased from 46% in the third quarter of 2008 to 51% in the current year quarter. The dollar increase in research and development
expense was primarily due to: i) a shift of engineering resources from DSL customer contracts (i.e., cost of contract revenue) to internal development projects (i.e., research and development expense) and ii) increased engineering spending in our biometrics organization.  These dollar increases were partially offset by lower spending in our DSL engineering organizations.





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Research and development expenses decreased 6% from $10.0 million in the first nine months of 2008 to $9.3 million in the first nine months of 2009.  As a percentage of total revenue, research and development expense increased from 54% in the first nine months of 2008 to 56% in the corresponding period of 2009. The dollar decrease
in research and development expense was primarily due to headcount attrition in our DSL engineering organization and lower spending on design and other outside services.




Our research and development spending has been principally focused on developing analog and digital silicon IP solutions for broadband communications applications, developing test and diagnostics hardware and software, and developing biometrics and imaging software.  If the Lantiq transaction closes, our future research and development
activities will be focused on developing test and diagnostics hardware and software, and developing biometrics and imaging software.





Upon closing the Lantiq transaction, we expect that our future engineering expenses will decrease by $1.7 million to $2.0 million per quarter due to the transfer of approximately 40 engineers to Lantiq. This future period expense reduction will appear on the research and development expense and cost of contract revenue lines of our consolidated
statements of operations as we allocate engineering expenses to both of these expense classifications.





Selling and Marketing Expense.  Selling and marketing expense consists primarily of compensation costs for sales and marketing personnel, travel, advertising and promotion, recruiting, and facilities expense.





Sales and marketing expense increased 10% from $1.14 million in the third quarter of 2008 to $1.25 million in the current year quarter.  As a percentage of total revenue, sales and marketing expense increased from 18% in the third quarter of 2008 to 20% in the current year quarter.  The dollar increase was primarily
due to higher stock-based compensation expenses related to an amendment to certain officer stock options.





For the nine months ended September 30, 2009, sales and marketing expenses increased 7%, from $3.3 million in 2008 to $3.5 million in 2009. As a percentage of total revenue, sales and marketing expenses increased from 18% in the first nine months of 2008 to 21% in the corresponding period of 2009. The dollar increase was mainly attributable
to headcount growth in our biometrics sales organization and, to a lesser degree, to higher stock-based compensation expenses related to an amendment to certain officer stock options.





Since the Lantiq transaction does not involve any of our sales or marketing personnel, the closing of the transaction will have a minimal impact on future sales and marketing expenses.





General and Administrative Expense.  General and administrative expense consists primarily of compensation costs for administrative personnel, facility costs, bad debt, audit, legal, stock exchange and insurance expenses.





General and administrative expenses increased 5% from $1.3 million in the third quarter of 2008 to $1.4 million in the current year quarter. As a percentage of total revenue, general and administrative expense increased from 21% in the third quarter of 2008 to 22% in the current year quarter. The dollar increase was primarily due to: i)
higher stock-based compensation expenses related to an amendment to certain director and officer stock options; and ii) director compensation expense. Higher expenses from these items were partially offset by lower spending on legal fees.




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For the nine months ended September 30, 2009, general and administrative expenses were unchanged at $3.8 million in 2008 and 2009. As a percentage of total revenue, general and administrative expenses increased from 21% in the first nine months of 2008 to 23% in the corresponding period of 2009.  Level spending in the nine month
periods reflects increased expenses related to stock-based compensation and director compensation, which was partially offset by lower spending on legal fees and salaries.





Since the Lantiq transaction does not involve any of our administrative personnel, the closing of the transaction will have a minimal impact on future general and administrative expenses.





Interest Income.  Interest income decreased 87% from $244,000 in the third quarter of 2008 to $31,000 in the current year quarter. For the nine months ended September 30, 2009, interest income decreased
77%, from $942,000 in 2008 to $217,000 in 2009. For the three and nine month periods, the dollar decrease was primarily due to a substantial decline in money market interest rates.





Income Taxes. We made no provision for income taxes in the first nine months of 2009 and 2008 due to net losses incurred and the uncertainty of the timing of profitability in future periods, except for $5,000 and $16,000 of state excise taxes paid in the first nine
months of 2009 and 2008, respectively.  In 2002, we determined that due to our continuing operating losses as well as the uncertainty of the timing of profitability in future periods, we should fully reserve our deferred tax assets.  As of September 30, 2009, our deferred tax assets continue to be fully reserved.  We will continue to evaluate, on a quarterly basis, the positive and negative evidence affecting the realizability of our deferred tax assets.





As of December 31, 2008, we had federal net operating loss and research and experimentation credit carryforwards of approximately $46.5 million and $12.8 million respectively, which may be available to offset future federal income tax liabilities and expire at various dates from 2009 through 2029.  In addition, at December 31,
2008, we had approximately $11.4 million and $6.6 million of state net operating losses and state research and development and investment tax carryforwards, respectively, which expire at various dates from 2009 through 2023.





Based on an analysis that we performed under Internal Revenue Code Section 382 on our NOLs generated for the period 1997 through 2007, we have not experienced a change in ownership as defined by Section 382, and, therefore, the NOLs are not currently under any Section 382 limitation.





Liquidity and Capital Resources





At September 30, 2009, we had cash and cash equivalents of $32.6 million, which represents a decrease of $12.9 million from December 31, 2008. The decrease in cash was primarily due to: i) cash used by operations of $3.8 million; ii) repurchases of our common stock of $9.0 million; and iii) capital spending on equipment of $0.1 million.





Cash used by operations in the first nine months of 2009 of $3.8 million was primarily the result of two factors: i) a net loss of $4.9 million, which was reduced for non-cash items related to depreciation and amortization of $0.7 million, and stock based compensation expense of $1.5 million; and ii) $1.1 million of cash used to fund working
capital items.




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In the second quarter of 2009, we completed a modified Dutch auction self-tender offer. We repurchased 3,500,252 shares at $2.50 per share for a total cost of $9.0 million, including expenses.





Capital spending was primarily related to the purchase of computer hardware, and laboratory equipment used principally in engineering activities.





While we can not assure you that we will not require additional financing, or that 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.





Recent Accounting Pronouncements





See Note H to our Consolidated Financial Statements in Item 1.








ITEM 3:


Quantitative and Qualitative Disclosures about Market Risk





Our exposure to market risk relates primarily to our investment portfolio, and the effect that changes in interest rates would have on that portfolio.  Our investment portfolio has included:





●
Cash and cash equivalents, which consist of financial instruments with original maturities of three months or less;


●
Short-term investments, which consist of financial instruments with remaining maturities of twelve months or less; and


●
Investments, which consist of financial instruments that mature in three years or less.





All of our investments meet the high quality standards specified in our investment policy. This policy dictates the maturity period and limits the amount of credit exposure to any one issue, issuer, and type of instrument.





As of September 30, 2009, our cash and cash equivalents of $32.6 million were invested in money market accounts.  Due to the nature and short duration of these financial instruments, we do not expect that an increase in interest rates would result in any material loss to our investment portfolio. As of September 30, 2009, we had
no investments that matured in more than twelve months.  We do not use derivative financial instruments for speculative or trading purposes.




ITEM 4:


Controls and Procedures





Our management, including our chief executive officer and chief financial officer, has evaluated our disclosure controls and procedures as of the end of the quarterly period covered by this Form 10-Q and has concluded that our disclosure controls and procedures are effective.  They also concluded that there were no changes in
our internal control over financial reporting that occurred during the quarterly period covered by this Form 10-Q that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.




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PART II.  OTHER INFORMATION





ITEM 1:


Legal Proceedings





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 seriously harm our business.





ITEM 1A:


Risk Factors





Risk Factors








Our Quarterly Results are Unpredictable and May Fluctuate Significantly





Our quarterly revenue and operating results are difficult to predict and may fluctuate significantly from quarter-to-quarter due to the unpredictably of our revenue components.





It is difficult for us to make accurate forecasts of product revenues.  Product revenues consist of sales of test and diagnostics hardware as well as biometrics, medical imaging and test and diagnostics software. Sales of hardware and software products fluctuate based upon demand by our customers which is difficult to predict.  Since
our product revenues include the sales of hardware products which typically have lower gross margins than our other sources of revenue, product gross margins and overall profitability are also difficult to predict.





Contract revenues are also unpredictable. Making accurate predictions of contract revenues from new customers is difficult. The contract negotiation process can be lengthy and the fiscal period in which a new agreement will be entered into, if at all, and the financial terms of such an agreement are difficult to predict.  Making
accurate predictions of contract revenues from existing customers is also difficult, because such revenues are affected by the level of cooperation we receive from customers; the level of engineering services desired by customers; and the potential of contract termination once a project starts. In addition, customers may not pay us as anticipated under our contracts.





It is also difficult for us to make accurate forecasts of royalty revenues.  Royalties are typically recognized in the quarter when we receive a report from a customer detailing sales and royalties due from the prior quarter, such as from the shipment of licensed integrated circuits. Royalties depend upon customer revenues which
can be affected by factors beyond our ability to control or assess in advance. These factors include our customers’ ability to generate sales and fluctuating sales volumes and prices of products containing our technology.





Our business is subject to a variety of additional risks, which could materially adversely affect quarterly and annual operating results, including:





●
market acceptance of broadband technologies we supply by semiconductor or equipment companies;


●
the extent and timing of new transactions with customers;




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●
changes in our and our customers’ development schedules and levels of expenditure on research and development;


●
the loss of a strategic relationship or termination of a project by a customer;


●
equipment companies’ acceptance of integrated circuits produced by our customers;


●
the loss by a customer of a strategic relationship with an equipment company customer;


●
announcements or introductions of new technologies or products by us or our competitors;


●
delays or problems in the introduction or performance of enhancements or of future generations of our technology;


●
failures or problems in our hardware or software products;


●
price pressure in the biometrics or test and diagnostics markets from our competitors;


●
delays in the adoption of new industry standards or changes in market perception of the value of new or existing standards;


●
competitive pressures resulting in lower contract revenues or royalty rates;


●
competitive pressures resulting in lower software or hardware product revenues;


●
personnel changes, particularly those involving engineering, technical, sales and marketing personnel;


●
costs associated with protecting our intellectual property;


●
the potential that customers could fail to make payments under their current contracts;


●
ADSL or VDSL market-related issues, including lower ADSL or VDSL chipset unit demand brought on by excess channel inventory and lower average selling prices for ADSL or VDSL chipsets as a result of market surpluses;


●
hardware manufacturing issues, including yield problems in our hardware platforms, and inventory buildup and obsolescence;


●
product gross margin may be affected by various factors including, but not limited to, product mix, product life cycle, and provision for excess and obsolete inventory;


●
significant fluctuations in demand for our hardware products;


●
new laws, changes to existing laws, or regulatory developments; 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 Experienced Net Losses





We had a net annual loss during 2001, 2002, 2003, 2004, and 2005; and quarterly losses in the first three quarters of 2009.  We may experience losses in the future if:


●
the test and diagnostics, semiconductor, telecommunications or biometrics markets decline;


●
new and/or existing customers do not choose to use our software or hardware products;


●
new and/or existing customers do not choose to license and/or buy our patents; or


●
new and/or existing customers do not choose to license our silicon IP for new chipset products or do not maintain or increase their revenues from sales of chipsets with our technology.




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Our DSL Licensing and DSL Test and Diagnostics Businesses Depend Upon a Limited Number of Customers, Therefore We Derive a Significant Amount of Revenue from a Small Number of Customers





There are a relatively limited number of companies to which we can sell our DSL technology and a limited number of OEM suppliers to which we can sell our DSL test and diagnostics products in a manner consistent with our business model. If we fail to maintain relationships with our current customers or fail to establish a sufficient number
of new customer relationships, our business could be seriously harmed.  In the recent past, three of our DSL silicon IP customers decided to exit the DSL chipset business, and therefore we do not expect to generate additional revenue from these customers. In addition, our current and prospective customers may use their superior size and bargaining power to demand terms that are unfavorable to us.





Due to the limited number of customers to which we can license and/or sell our DSL technology and patents and our DSL hardware and software products, we derive a significant amount of revenue from a small number of customers. In 2008, we derived approximately 28% and 12% of our total revenue from Daphimo and Infineon, respectively.  In
2007, we derived approximately 19%, 16%, and 10% of our total revenue from Infineon, Spirent, and Alcatel, respectively. In 2006, we derived approximately 26% and 20% of our total revenue from Infineon and ADI/Ikanos, respectively.  On February 17, 2006 ADI sold its ADSL business relating to Aware technology to Ikanos and Ikanos replaced ADI as an Aware customer.  On July 7, 2009 Infineon announced that it had agreed to sell its Wireline Communications business, our largest DSL semiconductor
licensing customer, to a U.S. investor.  It is too soon to access the impact of the potential sale by Infineon on our business.




Our Business is Subject to Rapid Technological Change





The semiconductor and telecommunications industries for high-speed network access technologies are characterized by rapid technological change.  The biometrics industry is also subject to rapid technological change and uncertainty. In these industries, new generations of products are introduced regularly and evolutionary improvements
to existing products are required.  Therefore, we face risks that others could introduce competing technology that renders our DSL or biometrics technology and products less desirable or obsolete.  Also, the announcement of new technologies could cause our customers or their customers to delay or defer entering into arrangements for the use of our existing technology.  Either of these events could seriously harm our business.





We expect that our business will depend to a significant extent on our ability to introduce new generations of communications and biometrics products as well as new technologies and products that keep pace with changes in these industries. We must continually devote significant engineering resources to achieving technical innovations and
product developments.  These developments are complex and require long development cycles.  Moreover, we may have to make substantial investments in technological innovations and product developments before we can determine their commercial viability.  We may lack sufficient financial resources to fund future development.  Also, our customers may decide not to share certain research and development costs with us.  Revenue from technological innovations, even if
successfully developed, may not be sufficient to recoup the costs of development.





One element of our business strategy is to assume the risks of technology development failure while reducing such risks for our customers.  In the past, we have spent significant amounts on development projects that did not produce any marketable technologies or products, and we cannot assure you that it will not occur again.





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We Face Intense Competition from a Wide Range of Competitors




Our ability to generate revenues from our DSL technology depends largely on the willingness and ability of semiconductor manufacturers to design, build and sell integrated circuits based on our intellectual property.  The DSL semiconductor industry is intensely competitive and has been characterized by price erosion, rapid technological
change, short product life cycles, cyclical market patterns and increasing foreign and domestic competition.





As a silicon intellectual property supplier to the semiconductor industry, we face competition from internal development teams within potential semiconductor customers.  We must convince potential customers to license or buy from us rather than develop technology internally.  Furthermore, our semiconductor customers
may choose to abandon joint development projects with us or develop chipsets themselves without using our technology.  In addition to competition from internal development teams, we may compete against other independent suppliers of intellectual property for DSL.  New chipset suppliers have also demonstrated a reluctance to enter the DSL market.





The market for DSL chipsets is intensely competitive.  Our success as a silicon IP supplier requires that DSL equipment manufacturers buy chipsets from our semiconductor customers, and that telephone companies buy DSL equipment from those equipment manufacturers.  Our customers’ chipsets compete with products from
other vendors of standards-based DSL chipsets, including Broadcom, Conexant, and TrendChip.





The markets for our DSL test and diagnostics hardware and software products are competitive and uncertain.  We can give no assurance that phone companies will purchase significant quantities of products to test and maintain their DSL networks, or that if they do they will use our products.  Our success as a supplier
of hardware and software products for DSL test and diagnostics depends in large part on the willingness and ability of OEM customers to design, build and sell automated test heads, hand-held testers, and DSLAMs that incorporate or work with our products.  Our success also depends upon our ability to market and sell to service providers.





Our DSL customers and their competitors have significantly greater financial, technological, manufacturing, marketing and personnel resources than we do.   We can give no assurance that our OEM customers will continue to purchase products from us or that we will be able to compete effectively or that competitive pressures
will not seriously harm our business.





Our DSL licensing and DSL test and diagnostics revenues are dependent upon the success of ADSL and VDSL services. ADSL and VDSL services offered over copper telephone networks also compete with alternative broadband transmission technologies that use other network architectures.  Alternative technologies that use other network
architectures to provide high-speed data service include cable modems using cable networks, wireless solutions using wireless networks, and optics technology using fiber optic networks. These alternative broadband transmission technologies may be more successful than ADSL or VDSL and we may not be able to participate in the markets involving these alternative technologies.




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The markets for our biometrics products and services as well as our medical and digital imaging software products are competitive and uncertain. Many of our biometric software competitors have significantly greater financial, technological, marketing and personnel resources than we do. Also, we face intense competition from internal development
teams within potential customers.  We must convince potential customers to purchase products and services from us rather than develop software or perform services internally.  Furthermore, customers, who have already purchased from us, may choose to stop purchasing our software and develop their own software.





We may be unable to compete successfully in our DSL licensing, DSL test and diagnostics, and biometrics and imaging businesses, and our competitive position may be adversely affected in the future by one or more of the factors described in this section.




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. Our patent portfolio includes approximately 47 U.S. patents and 100 foreign patents as well as
a number of pending patent applications.  We also rely on a combination of trade secrets, copyright and trademark law and non-disclosure agreements to protect our unpatented intellectual property.  Despite these precautions, it may be possible for a third party to copy or otherwise obtain and use our technology without authorization.





As part of our silicon IP agreements, we typically work closely with our customers, who may also be potential competitors, and provide them with proprietary know-how necessary for their development of customized chipsets based on our DSL technology.  Although our agreements contain non-disclosure provisions and other terms protecting
our proprietary know-how and technology rights, it is possible that, despite these precautions, some of our customers might obtain from us proprietary information that they could use to compete with us in the marketplace.  Although we intend to defend our intellectual property as necessary, the steps we have taken may be inadequate to prevent misappropriation.





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.  The misappropriation of our technology or the development of competitive technology could seriously harm our business.





Our technology, software or hardware may infringe the intellectual property rights of others.  A large and increasing number of participants in the telecommunications and compression industries have applied for or obtained patents.  Some of these patent holders have demonstrated a readiness to commence litigation based
on allegations of patent and other intellectual property infringement.  Third parties may assert patent, copyright and other intellectual property rights to technologies that are important to our business.  In the past, we have received claims from other companies that our technology infringes their patent rights.  Intellectual property rights can be uncertain and can involve complex legal and factual questions.  We may infringe the proprietary rights of others, which could
result in significant liability for us.  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.




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Our Ability to Obtain or Enforce Patents Could be Affected by New Laws, Regulations or Rules





We have an active program to protect our proprietary technology through the filing of patents. We have also pursued the license and/or sale of patents, as part of our silicon IP offerings as well as independently. New laws, regulations or rules implemented either by Congress, the United States Patent and Trademark Office, foreign patent
offices, or the courts that impact the patent application process, the patent enforcement process or the rights of patent holders could significantly increase our expenses related to patent prosecution or decrease revenues associated with our patents.  While we are not aware that any such changes are likely to occur in the foreseeable future, we cannot assure you that such changes will not occur.




Our DSL Silicon Intellectual Property Business Model Has Unique Challenges





Our success as a licensor of DSL silicon IP depends upon our ability to license our technology to semiconductor or equipment companies, and our customers’ willingness and ability to sell products that incorporate our technology.





We face numerous risks in successfully obtaining suitable customers on terms consistent with our business model, including, among others:





●
we must typically undergo a lengthy and expensive process of building a relationship with a potential customer before there is any assurance of an agreement with such party, and in some instances we must convince a potential customer to enter the DSL market.


●
we must persuade semiconductor and equipment manufacturers with significant resources to rely on us for critical technology on an ongoing basis rather than trying to develop similar technology internally;


●
we must persuade potential customers to bear development costs associated with our technology applications and to make the necessary investment to successfully manufacture chipsets and products using our technology; and


●
we must successfully transfer technical know-how to customers.





Moreover, the success of our business model also depends on the receipt of royalties from customers. Royalties from our customers are often based on the selling prices of their chipsets and products, over which we have little or no control.  We also have little or no control over our customers’ promotional and marketing
efforts.  They are not prohibited from competing against us.





Our success depends upon our ability to obtain suitable customers, and is threatened if our current customers cancel or put DSL programs utilizing our technology on hold, or if our customers do not successfully market and sell chipsets or products incorporating our technology.





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There Has Been and May Continue to be a Cyclical Demand for DSL Chipsets, and There is Intense Competition for DSL Chipsets, Which Has Caused Our Royalty Revenue to Decline





The royalties we receive are influenced by many of the risks faced by the DSL market in general, including cyclical demand which may result in reduced average selling prices (“ASPs”) for DSL chipsets during periods of surplus.  In the past, the DSL industry has experienced an oversupply of DSL chipsets, central office equipment
or customer premises equipment.  Excessive inventory levels led to soft chipset demand, which in turn led to declining ASPs.  ASPs have also been under pressure because of intense competition in the DSL chipset marketplace. As a result of the soft demand and declining ASPs for ADSL chipsets, our royalty revenue has decreased substantially. Price decreases for ADSL or VDSL chipsets, and the corresponding decreases in per unit royalties received by us, can be sudden and dramatic.  Pricing pressures
may continue during 2009 and beyond.  Our royalty revenue may decline over the long term.




The Success of Our DSL Licensing Business Requires Acceptance of Our Technology by Equipment Companies





The success of our DSL licensing business is dependent on our ability to generate meaningful royalties from our licensing arrangements with customers. Our ability to generate such royalties is materially affected by the willingness of equipment companies to purchase integrated circuits that incorporate our technology.  There are
other competitive solutions available for equipment companies seeking to offer broadband communications products.  We face the risk that equipment manufacturers will choose those alternative solutions. Generally, our ability to influence equipment companies’ decisions whether to purchase integrated circuits that incorporate our technology is limited.





We also face the risk that equipment companies that elect to use integrated circuits that incorporate our technology into their products will not compete successfully against other equipment companies.  Many factors beyond our control could influence the success or failure of a particular equipment company that uses integrated
circuits based on our technology. Even if equipment companies incorporate chipsets based on our intellectual property into their products, their products may not achieve commercial acceptance or result in meaningful royalties to us.




The Success of Our DSL Licensing and Test and Diagnostics Products Businesses Requires Telephone Companies to Install DSL Service in Volume





The success of our DSL licensing and test and diagnostics products businesses depends upon telephone companies installing DSL service in significant volumes.  If telephone companies do not install DSL service in significant volumes, or if telephone companies install broadband service based on other technologies such as cable or
fiber-to-the-home, our business will be seriously harmed.





Moreover, our DSL licensing and test and diagnostics products businesses depend on capital equipment spending by telephone companies.  If telephone companies reduce their budgets for or decide not to install or utilize equipment dedicated to DSL service or test infrastructure, our business will be severely harmed.




The Success of Our DSL Test and Diagnostics Products Depends On a Number of Factors





Our success in developing, introducing, selling, and supporting new and enhanced test and diagnostics products depends upon a variety of factors, including timely and efficient completion of hardware and software design and development, implementation of manufacturing processes, and effective sales, marketing, and customer service.  Because
of the complexity of our test and diagnostics products, significant delays may occur between a hardware product’s initial introduction and commencement of volume production. If we are unsuccessful in developing, introducing, selling and supporting new and enhanced test and diagnostics products, our DSL test and diagnostics business could be seriously harmed.




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If Our Test and Diagnostics Hardware and Software Products Have Quality Problems, Our Business Could Be Harmed





If our test and diagnostics products have actual or perceived reliability, quality, functionality or other problems, we may suffer reduced orders, higher manufacturing costs, inability to recognize revenue, delays in collecting accounts receivable and higher service, support and warranty expenses or inventory write-offs, among other effects.
We believe that the acceptance, volume production, timely delivery and customer satisfaction of our test and diagnostics products is important to our future financial results. As a result, any inability to correct any technical, reliability, parts shortages or other difficulties or to manufacture and ship our test and diagnostics products on a timely basis meeting customer requirements could damage our relationships and reputation with current and prospective customers, which would harm our revenues and operating
results.  Any product problems that may require repair or replacement may adversely affect our customer and/or vendor relationships and have an impact on support costs, warranty reserves, or inventory reserves, among other effects.




We are Dependent On a Single Source Contract Manufacturer for the Manufacture of Our DSL Hardware Products, the Loss of Which Would Harm Our Business





We currently depend on one contract manufacturer to manufacture our DSL hardware products. If this company was to terminate its arrangement with us or fail to provide the required capacity and quality on a timely basis, we would be unable to manufacture our products until replacement contract manufacturing services could be obtained. To
qualify a new contract manufacturer, familiarize it with our products, quality standards and other requirements, and commence production is a costly and time-consuming process. We cannot assure you that we would be able to establish alternative manufacturing relationships on acceptable terms.  Although we make reasonable efforts to ensure that our contract manufacturer performs to our standards, our reliance on a single source limits our control over quality assurance and delivery schedules. Defects
in workmanship, unacceptable yields, and manufacturing disruptions and difficulties may impair our ability to manage inventory and cause delays in shipments and cancellation of orders that may adversely affect our relationships with current and prospective customers.  As a result, our revenues and operating results may be harmed.




Our Manufacturing Systems May Not Be Adequate For Our DSL Test and Diagnostics Hardware Product Offerings





Our current manufacturing systems adequately address hardware products we are currently manufacturing in limited volumes.  Our manufacturing systems have not been extensively tested under anticipated, more complex hardware products or in volumes higher than that of our current hardware products.  If our manufacturing systems are
inadequate or have other problems, our revenues and operating results may be harmed.




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We are Dependent on Single Source Suppliers for Components in Our DSL Hardware Products





We rely on single source suppliers for components and materials used in our DSL hardware products. Our dependence on single source suppliers involves several risks, including limited control over pricing, availability, quality and delivery schedules. Any delays in delivery of such components or shortages of such components could cause delays
in the shipment of our products, which could significantly harm our business. Because of our reliance on these vendors, we may also be subject to increases in component costs. These increases could significantly harm our business. If any one or more of our single source suppliers cease to provide us with sufficient quantities of our components in a timely manner or on terms acceptable to us, we would have to seek alternative sources of supply. We could incur delays while we locate and engage alternative qualified
suppliers and we might be unable to engage alternative suppliers on favorable terms. We could incur substantial hardware and software redesign costs if we are required to replace the components.  Any such disruption or increased expenses could harm our commercialization efforts and adversely affect our ability to generate revenues.




Biometrics Software Business Risks





Our biometrics software business is subject to a variety of additional risks, which could materially adversely affect quarterly and annual revenue and operating results, including:





●
market acceptance of our biometric technologies and products;


●
changes in contracting practices of government or law enforcement agencies;


●
the failure of the biometrics market to experience continued growth;


●
announcements or introductions of new technologies or products by our competitors;


●
delays or problems in the introduction or performance of enhancements or of future generations of our technology;


●
failures or problems in our biometric software products;


●
the risk that current or potential customers might decide to develop their own software rather than buy it from us;


●
delays in the adoption of new industry biometric standards or changes in market perception of the value of new or existing standards;


●
growth of proprietary biometric systems which do not conform to industry standards;


●
competitive pressures resulting in lower software product revenues;


●
personnel changes, particularly those involving engineering, technical and sales and marketing personnel;


●
costs associated with protecting our intellectual property;


●
litigation by third parties for alleged infringement of their proprietary rights;


●
the potential that customers could fail to make payments under their current contracts;


●
new laws, changes to existing laws, or regulatory developments; and


●
general economic trends and other factors.





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Biometrics Services Business Risks





We began to perform engineering services under biometric technology contracts in the fourth quarter of 2007.  Over the last several quarters, our biometrics services business has contributed a more meaningful portion of contract revenue. This business is subject to additional risks, which could materially adversely affect quarterly
and annual revenue and operating results, including:





●
our ability to structure and price technology contracts in a manner that is consistent with our business model;


●
our ability to deliver contract milestones: i) in a timely and cost efficient manner, and ii) in a form and condition acceptable to customers;


●
the risk that customers could terminate projects;


●
the risk that we rely substantially on third party contractors and consultants to deliver certain contract milestones; and


●
the potential that customers could fail to make payments under their contracts.




Current Economic Conditions, Including The Credit Crisis Affecting The Financial Markets And The Possibility Of A Global Recession, Could Adversely Affect Our Business, Results Of Operations And Financial Condition.





The world’s financial markets are currently experiencing turmoil, characterized by reductions in available credit, increased costs of credit, volatility in security prices, rating downgrades of investments and reduced valuations of securities generally.  These events have materially and adversely impacted the availability of
financing to a wide variety of businesses, and the resulting uncertainty has led to reductions in capital investments, overall spending levels, future product plans, and sales projections across industries and markets.  These trends could have a material adverse impact on our business, our ability to achieve targeted results of operations and our financial condition as a result of:





●
reduced demand for our products or our customers’ products that incorporate our technology;


●
increased risk of order cancellations or delays;


●
increased risk that customers may delay or terminate projects;


●
increased pressure on the prices for our products or our customers’ products that incorporate our technology;


●
greater difficulty in collecting accounts receivable; and


●
risks to our liquidity, including the possibility that we might not have access to our cash when needed.





We are unable to predict the likely duration and severity of the current disruption in financial markets and adverse economic conditions in the U.S. and other countries, but the longer the duration, the greater the risks we face in operating our business.




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 polices that are relevant to our business.  The application of these principles and policies requires us to make significant judgments and estimates.  In the event that judgments and estimates
we make are incorrect, we may have to change them, which could materially affect our financial position and results of operations.





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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 standards requires us to interpret and apply them appropriately.  If our current interpretations or applications are later found
to be incorrect, our financial position and results of operations could be materially affected.




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 and
the audit opinion of our independent registered accounting firm as to the effectiveness of our controls is required in connection with our filing of our Annual Report on Form 10-K. If we are unable to timely identify, implement and conclude that we have effective internal controls over financial reporting or if our independent auditors are unable to conclude that our internal controls over financial reporting are effective, 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.




Our Stock Price May Be Extremely Volatile





Volatility in our stock price may negatively affect the price you may receive for your shares of common stock and increases the risk that we could be the subject of costly securities litigation.  The market price of our common stock has fluctuated substantially and could continue to fluctuate based on a variety of factors, including:





●
quarterly fluctuations in our operating results;


●
changes in future financial guidance that we may provide to investors and public market analysts;


●
changes in our relationships with our customers;


●
announcements of technological innovations or new products by us, our customers or our competitors;


●
changes in DSL or biometrics market growth rates as well as investor perceptions regarding the investment opportunity that companies participating in the DSL or biometrics industry afford them;


●
changes in earnings estimates by public market analysts;


●
key personnel losses;


●
sales of our common stock;


●
our stock repurchase activities; and


●
developments or announcements with respect to industry standards, patents or proprietary rights.





In addition, the equity markets have experienced volatility that has particularly affected the market prices of equity securities of many high technology companies and that often has been unrelated or disproportionate to the operating performance of such companies. These broad market fluctuations may adversely affect the market price of
our common stock.





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Our Business May Be Affected by Government Regulations





The extensive regulation of the telecommunications industry by federal, state and foreign regulatory agencies, including the Federal Communications Commission, and various state public utility and service commissions, could affect us through the effects of such regulation on our customers and their customers.  In addition, our
business may also be affected by the imposition of certain tariffs, duties and other import restrictions on components that our customers obtain from non-domestic suppliers or by the imposition of export restrictions on products sold internationally and incorporating our technology.  Changes in current or future laws or regulations, in the United States or elsewhere, could seriously harm our business.




ITEM 2:


Unregistered Sales of Equity Securities and Use of Proceeds





Issuer Purchases of Equity Securities





Period

(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) (2)

(d)
Maximum Number (or
Approximate Dollar
Value) of Shares that
May Yet Be Purchased
Under the Plans
or ProgramsJuly 1, 2009 to September 30, 20091

-


-

-

$7,603,874




(1)
On August 28, 2007, we issued a press release announcing that our board of directors had approved the repurchase from time to time through December 31, 2008 of up to $5,000,000 of our common stock. On October 29, 2008, we announced that our board of directors had approved an amendment to the program that increased the total amount of common stock that
may be repurchased from $5,000,000 to $10,000,000.  The amendment also extended the period of time that shares may be repurchased from December 31, 2008 to December 31, 2009.




During 2007 and 2008, we purchased 9,107 and 712,024 shares, respectively, at a total cost of $38,716 and $2,357,410, respectively, under this plan. We did not purchase any shares under the plan in the first nine months of 2009.


(2)
On March 5, 2009, we announced a modified Dutch auction tender offer to purchase up to 3,500,000 shares of our common stock at a price per share of not less than $2.20 and not greater than $2.60. The terms of the tender offer also provided the right for us to purchase up to an additional 2% of our shares if the offer was oversubscribed.  The
tender offer closed on April 17, 2009, and on April 23, 2009 we repurchased 3,500,252 shares at $2.50 per share for a total cost of $9.0 million, including expenses.




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ITEM 6:


Exhibits




(a)  Exhibits





Exhibit 31.1
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.





Exhibit 31.2
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.





Exhibit 32.1
Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.








SIGNATURES





Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.




AWARE, INC.  Date: October 22, 2009
By:
/s/ Michael A. TzannesMichael A. Tzannes, Chairman &Chief Executive OfficerDate: October 22, 2009
By:
/s/ Richard P. MobergRichard P. Moberg, Chief FinancialOfficer (Principal Financial andAccounting Officer)