Notes to Consolidated Financial Statements
December 31, 2016
(1) Summary of Significant Accounting Policies
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(a)
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The Company and Nature of Operations
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FalconStor Software, Inc., a Delaware Corporation (the "Company"), is a leading software-defined storage company offering a converged data services software platform that is hardware agnostic. The Company develops, manufactures and sells data migration, business continuity, disaster recovery, optimized backup and de-duplication solutions and provides the related maintenance, implementation and engineering services.
(b) Going Concern
A fundamental principle of the preparation of financial statements in accordance with accounting principles generally accepted in the United States of America ("GAAP") is the assumption that an entity will continue in existence as a going concern, which contemplates continuity of operations and the realization of assets and settlement of liabilities occurring in the ordinary course of business. This principle is applicable to all entities except for entities in liquidation or entities for which liquidation appears imminent. In accordance with this requirement, the Company has prepared its consolidated financial statements on a going concern basis.
The Company has incurred significant operating losses in the previous eight years and negative cash flow from operations in five of the previous eight years. The Company currently has a working capital deficiency of
$10.5 million
, which is inclusive of current deferred revenue of
$15.2 million
, and a stockholders' deficit of
$21.7 million
. During the year ended December 31, 2016, the Company incurred a net loss of
$11.0 million
and negative cash flow from operations of
$9.4 million
. The Company's total cash balance at December 31, 2016 was
$3.4 million
, a decrease of
$10.0 million
as compared to December 31, 2015. In addition to these financial metrics, as of
December 31, 2016
, the Company was not in compliance with the financial covenants of the Series A redeemable convertible preferred stock, which are mutually agreed to annually, for two consecutive quarters. This breach provides the Series A redeemable convertible preferred stockholders with the right to require the Company to redeem any of the Series A redeemable convertible preferred stock at the greater of
100%
of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price of the Company's common stock as of
December 31, 2016
. To date, the holders of the Series A redeemable convertible preferred stock have neither exercised nor waived this right and accordingly this right may be exercised at any time. In addition, the holders of the Series A redeemable convertible preferred stock have the right to request a redemption of the Series A redeemable convertible preferred stock on or after August 5, 2017. If the holders request that the Series A redeemable convertible preferred stock be redeemed, the Company may not have sufficient liquidity to undertake the redemption. If the Company does not redeem the Series A redeemable convertible preferred stock, the holders of the Series A redeemable convertible preferred stock can pursue other remedies. Refer to Note (8)
Series A Redeemable Convertible Preferred Stock
for further discussion regarding these other remedies. The Company's reduced cash balance and history of losses both in and of itself, and in combination with the redemption rights of the holders of the Series A redeemable convertible preferred stock, raise substantial doubt about the Company's ability to continue as a going concern within one year after March 10, 2017 (the date that these financial statements were issued).
The Company's ability to continue as a going concern, including in the event of a redemption request by the holder, depends on its ability to execute its business plan, increase revenue and billings and reduce expenditures. During 2016, the Company continued to focus on aligning its expense structure with revenue expectations which included tighter expense controls and overall operational efficiencies which better align the Company's current business plan on a run-rate basis. These efficiencies include among other items, stream-lined personnel related costs and global overhead costs and efficiencies realized on the Company's redesigned go-to-market coverage models. The Company has reduced its worldwide headcount to
166
employees as of December 31, 2016, compared with
226
employees as of December 31, 2015. However, the decline in revenue over the last twelve months combined with the separation costs related to the headcount reductions have reduced the impact of these reductions in operating expenses, thereby not achieving the expected reduction of quarterly cash burn rate.
There is no assurance that the Company will be successful in generating sufficient revenue or continue to reduce operating costs. In addition, to the extent that the Company continues to incur losses, the Company may need to seek additional financing and there can be no assurance that the Company will be able to obtain financing or that such financing will be on favorable terms. Any such financing could be dilutive to our shareholders. Failure to generate sufficient revenue, billings, control or reduce expenditures and/or the inability to obtain financing will result in an inability of the Company to continue as a going concern.
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(c)
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Principles of Consolidation
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The consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company’s significant estimates include those related to revenue recognition, accounts receivable allowances, share-based payment compensation, valuation of derivatives, capitalizable software development costs, valuation of goodwill and other intangible assets, income taxes and management's assessment of going concern. Actual results could differ from those estimates.
The financial market volatility, both in the U.S. and in many other countries where the Company operates, has impacted and may continue to impact the Company’s business. Such conditions could have a material impact to the Company’s significant accounting estimates discussed above.
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(e)
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Cash Equivalents and Marketable Securities
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The Company considers all highly liquid investments with maturities of three months or less when purchased to be cash equivalents. The Company records its cash equivalents and marketable securities at fair value in accordance with the authoritative guidance issued by the Financial Accounting Standards Board (“FASB”) on fair value measurements and disclosures. As of
December 31, 2016
and
2015
, the Company’s cash equivalents consisted of money market funds and commercial paper. At
December 31, 2016
and
2015
, the fair value of the Company’s cash equivalents amounted to approximately
$1.1 million
and
$2.7 million
, respectively.
As of
December 31, 2016
, the Company had
no
marketable securities. As of
December 31, 2015
, the Company’s marketable securities consisted of corporate bonds and government securities with a fair value of approximately and
$7.4 million
. All of the Company’s marketable securities are classified as available-for-sale, and accordingly, unrealized gains and losses on marketable securities, net of tax, are reflected as a component of accumulated other comprehensive loss in stockholders’ deficit. Any other-than-temporary impairments are recorded within interest and other loss, net in the consolidated statement of operations. See Note (4) M
arketable Securities
for additional information.
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(f)
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Fair Value of Financial Instruments
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Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. To increase the comparability of fair value measurements, a three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies, is as follows:
Level 1
—Valuations based on quoted prices for identical assets and liabilities in active markets.
Level 2
—Valuations based on observable inputs other than quoted prices included in Level 1, such as quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data.
Level 3
—Valuations based on unobservable inputs reflecting our own assumptions, consistent with reasonably available assumptions made by other market participants. These valuations require significant judgment.
As of
December 31, 2016
and
2015
, the fair value of the Company’s financial instruments including cash and cash equivalents, accounts receivable, accounts payable and accrued expenses approximated carrying value due to the short maturity of these instruments. See Note (3)
Fair Value Measurements
for additional information.
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(g)
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Derivative Financial Instruments
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The Company does not use derivative instruments to hedge exposures to cash flow, market or foreign currency risk. Terms of convertible preferred stock are reviewed to determine whether or not they contain embedded derivative instruments that are required under FASB ASC 815 “Derivatives and Hedging” (“ASC 815”) to be accounted for separately from the host contract, and recorded on the balance sheet at fair value. The fair value of derivatives are required to be revalued at each reporting date, with corresponding changes in fair value recorded in current period operating results. See Note (13)
Derivative Financial Instruments
for additional information.
The Company derives its revenue from sales of its products, support and services. Product revenue consists of the Company’s software integrated with industry standard hardware and sold as complete turn-key integrated solutions, as stand-alone software applications or sold on a subscription or consumption basis. Depending on the nature of the arrangement, revenue related to turn-key solutions and stand-alone software applications are generally recognized upon shipment and delivery of license keys. For certain arrangements revenue is recognized based on usage or ratably over the term of the arrangement. Support and services revenue consists of both maintenance revenues and professional services revenues. Revenue is recorded net of applicable sales taxes.
In accordance with the authoritative guidance issued by the FASB on revenue recognition, the Company recognizes revenue when persuasive evidence of an arrangement exists, the fee is fixed or determinable, delivery has occurred, and collection of the resulting receivable is deemed probable. Products delivered to a customer on a trial basis are not recognized as revenue until the trial period has ended and acceptance has occurred by the customer. Reseller and distributor customers typically send the Company a purchase order when they have an end user identified. For bundled arrangements that include either maintenance or both maintenance and professional services, the Company uses the residual method to determine the amount of product revenue to be recognized. Under the residual method, consideration is allocated to the undelivered elements based upon vendor-specific objective evidence (“VSOE”) of the fair value of those elements, with the residual of the arrangement fee allocated to and recognized as product revenue. If VSOE does not exist for all undelivered elements of an arrangement, the Company recognizes total revenue from the arrangement ratably over the term of the maintenance agreement. The Company's long-term portion of deferred revenue consists of (i) payments received for maintenance contracts with terms in excess of one year as of the balance sheet date, and (ii) payments received for product sales bundled with multiple years of maintenance but for which VSOE did not exist for all undelivered elements of the arrangement. The Company provides an allowance for product returns as a reduction of revenue, based upon historical experience and known or expected trends.
When more than one element, such as hardware, software and services are contained in a single arrangement, the Company will first allocate revenue based upon the relative selling price into two categories: (1) non-software components, such as hardware and any hardware-related items, as required system software that functions with the hardware to deliver the essential functionality of the hardware and related post-contract customer support, and software as service subscriptions and (2) software components and applications, such as post-contract customer support and other services. The Company will then allocate revenue within the non-software category to each element based upon their relative selling price using a hierarchy of VSOE, third-party evidence of selling price (“TPE”) or estimated selling prices (“ESP”), if VSOE or TPE does not exist. The Company will allocate revenue within the software category to the undelivered elements based upon their fair value using VSOE with the residual revenue allocated to the delivered elements. If the Company cannot objectively determine the VSOE of the fair value of any undelivered software element, the Company will defer revenue for all software components until all elements are delivered and services have been performed, until fair value can objectively be determined for any remaining undelivered elements, or until software maintenance is the only undelivered element which the Company does not have VSOE for, in which case revenue is recognized over the maintenance term for all software elements.
Revenues associated with maintenance services are deferred and recognized as revenue ratably over the term of the contract. Revenues associated with software implementation and software engineering services are recognized when the services are performed and customer acceptance is received. Costs of providing these services are included in cost of support and services.
The Company has entered into various distribution, licensing and joint promotion agreements with OEMs, whereby the Company has provided the OEM a non-exclusive software license to install the Company’s software on certain hardware or to resell the Company’s software in exchange for payments based on the products distributed by these OEMs. Such payments from the OEM or distributor are recognized as revenue in the period reported by the OEM.
From time to time the Company will enter into funded software development arrangements. Under such arrangements, revenue recognition will not commence until final delivery and/or acceptance of the product. For arrangements where the Company has VSOE for the undelivered elements, the Company will follow the residual method and recognize product revenue upon final delivery and/or acceptance of the product. For arrangements where the Company does not have VSOE for the undelivered elements, the Company will recognize the entire arrangement fee ratably commencing at the time of final delivery and/or acceptance through the end of the service period in the arrangement. Certain arrangements, for which VSOE of fair value for the undelivered maintenance elements cannot be established, are accounted for as a single unit of account. The revenue recognized from single units of accounting are typically allocated and classified on the consolidated statements of operations as product revenue and support and services revenue. Since VSOE cannot be established, VSOE of similar maintenance offerings provides the basis for the support and services revenue classification, and the remaining residual consideration provides the basis for the product revenue classification.
In 2013, the Company entered into a joint development agreement whereby final acceptance of the software delivered under the joint development agreement occurred on November 16, 2014. During 2014, the Company began to recognize the total committed fee as revenue ratably over a twenty-five and a half month period which began on November 16, 2014 and included a contractual twenty-four month maintenance period. During 2015, the customer elected to terminate its maintenance agreement and as such all unrecognized deferred revenue was accelerated and recognized as product revenue during the year. During the years ended December 31, 2016 and 2015, the Company recorded
no
product revenue and product revenue of approximately
$11.3 million
, respectively, related to this agreement.
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(i)
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Property and Equipment
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Property and equipment are recorded at cost. Depreciation is recognized using the straight-line method over the estimated useful lives of the assets (3 to 7 years). Leasehold improvements are amortized on a straight-line basis over the terms of the respective leases or over their estimated useful lives, whichever is shorter.
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(j)
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Goodwill and Other Intangible Assets
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Goodwill represents the excess of the purchase price over the estimated fair value of net tangible and identifiable intangible assets acquired in business combinations. The Company has not amortized goodwill related to its acquisitions, but instead tests the balance for impairment. The Company evaluates goodwill for impairment annually or more frequently when an event occurs or circumstances change that indicate that the carrying value may not be recoverable. The Company tests goodwill for impairment by first comparing the book value of net assets to the fair value of the reporting unit. If the fair value is determined to be less than the book value or qualitative factors indicate that it is more likely than not that goodwill is impaired, a second step is performed to compute the amount of impairment as the difference between the estimated fair value of goodwill and the carrying value.
The Company’s annual impairment assessment is performed at December 31st of each year, and the Company has determined there to be no impairment for any of the periods presented. Based on the Company’s analysis, the fair value of its reporting unit substantially exceeds the carrying value of its goodwill balances as of
December 31, 2016
and
2015
. As part of the goodwill impairment test performed at December 31, 2016, the Company determined it was more likely than not that a goodwill impairment exists and the Company proceeded to step two of the goodwill impairment test. The Company engaged a third-party valuation firm to determine the fair value of all long-lived assets other than goodwill and determine the residual goodwill value of the reporting unit. This goodwill impairment test indicated that the fair value of goodwill value exceeded its carrying value by
$15.8 million
. The Company used multiple valuation techniques, the income and market approaches, and weighted the results to calculate the fair value of its goodwill as of December 31, 2016. Changes in the assumptions used in the goodwill valuation could materially impact the fair value estimates. Significant assumptions to the goodwill fair value estimate include; projected future financial statement results for the Company, discount rate and projected long-term growth rates.
Identifiable intangible assets include (i) assets acquired through business combinations, which include customer contracts and intellectual property, and (ii) patents amortized over three years using the straight-line method.
The gross carrying amount and accumulated amortization of goodwill and other intangible assets as of
December 31, 2016
and
2015
are as follows:
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December 31, 2016
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December 31, 2015
|
Goodwill
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$
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4,150,339
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$
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4,150,339
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Other intangible assets:
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Gross carrying amount
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$
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3,725,437
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$
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3,609,524
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Accumulated amortization
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(3,515,981
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)
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(3,353,387
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)
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Net carrying amount
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$
|
209,456
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|
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$
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256,137
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For the years ended
December 31, 2016
and
2015
, amortization expense was
$162,594
and
$154,400
, respectively. As of
December 31, 2016
, amortization expense for existing identifiable intangible assets is expected to be
$124,712
,
$66,709
and
$18,035
for the years ended December 31,
2017
,
2018
and
2019
, respectively. Such assets will be fully amortized at December 31,
2019
.
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(k)
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Software Development Costs and Purchased Software Technology
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In accordance with the authoritative guidance issued by the FASB on costs of software to be sold, leased, or marketed, costs associated with the development of new software products and enhancements to existing software products are expensed as incurred until technological feasibility of the product has been established. Based on the Company’s product development process, technological feasibility is established upon completion of a working model. Amortization of software development costs is recorded at the greater of the straight-line basis over the product’s estimated life, or the ratio of current period revenue of the related products to total current and anticipated future revenue of these products. The gross carrying amount and accumulated amortization of software development costs as of
December 31, 2016
and
2015
are as follows:
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December 31, 2016
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December 31, 2015
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Software development costs:
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Gross carrying amount
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$
|
2,917,215
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|
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$
|
3,037,215
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Accumulated amortization
|
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(2,369,657
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)
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(1,920,399
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)
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Software development costs, net
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$
|
547,558
|
|
|
$
|
1,116,816
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During the years ended
December 31, 2016
and
2015
, the Company recorded
$449,258
and
$525,801
, respectively, of amortization expense related to capitalized software costs. As of
December 31, 2016
, amortization expense for software development costs is expected to be
$268,144
,
$223,095
,
$55,174
, and
$1,145
for the years ended December 31,
2017
,
2018
,
2019
and
2020
, respectively. Such assets will be fully amortized at December 31,
2020
.
The Company records income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be realized or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. In determining the period in which related tax benefits are realized for financial reporting purposes, excess share-based compensation deductions included in net operating losses are realized after regular net operating losses are exhausted.
The Company accounts for uncertain tax positions in accordance with the authoritative guidance issued by the FASB on income taxes, which addresses the determination of whether tax benefits claimed or expected to be claimed on a tax return, should be recorded in the financial statements. Pursuant to the authoritative guidance, the Company may recognize the tax benefit from an uncertain tax position only if it meets the “more likely than not” threshold that the position will be sustained on examination by the taxing authority, based on the technical merits of the position or expiration of statutes. The tax benefits recognized in the financial statements from such a position should be measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. In addition, the authoritative guidance addresses de-recognition, classification, interest and penalties on income taxes, accounting in interim periods, and also requires increased disclosures. The Company includes interest and penalties related to its uncertain tax positions as part of income tax expense within its consolidated statement of operations. See Note (6)
Income Taxes
for additional information.
The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable. If the sum of the expected future cash flows, undiscounted and without interest, is less than the carrying amount of the asset, an impairment loss is recognized as the amount by which the carrying amount of the asset exceeds its fair value.
The Company accounts for share-based payments in accordance with the authoritative guidance issued by the FASB on share-based compensation, which establishes the accounting for transactions in which an entity exchanges its equity instruments for goods or services. Under the provisions of the authoritative guidance, share-based compensation expense is measured at the grant date, based on the fair value of the award, and is recognized as an expense over the requisite employee service period (generally the vesting period), net of estimated forfeitures. For share-based payment awards that contain performance criteria share-based compensation expense is recorded when the achievement of the performance condition is considered probable of achievement and is recorded straight-line over the requisite service period. If such performance criteria are not met, no compensation cost is recognized and any recognized compensation cost is reversed. The Company estimates the fair value of share-based payments using the Black-Scholes option-pricing model or the Monte Carlo simulation model if a market condition exists. Share-based compensation expense for a share-based payment award with a market condition is recorded straight-line over the longer of the explicit service period or the service period derived from the Monte Carlo simulation. The estimation of share-based awards that will ultimately vest requires judgment, and to the extent actual results or updated estimates differ from the Company’s current estimates, such amounts will be recorded as a cumulative adjustment in the period estimates are revised. The Company considers many factors when estimating expected forfeitures, including types of awards, employee class and historical experience. Additionally, share-based awards to non-employees are expensed over the period in which the related services are rendered at their fair value. All share-based awards are expected to be fulfilled with new shares of common stock. See Note (10)
Share-Based Payment Arrangements
for additional information.
Assets and liabilities of foreign operations are translated at rates of exchange at the end of the period, while results of operations are translated at average exchange rates in effect for the period. Gains and losses from the translation of foreign assets and liabilities from the functional currency of the Company’s subsidiaries into the U.S. dollar are classified as accumulated other comprehensive loss in stockholders’ deficit. Gains and losses from foreign currency transactions are included in the consolidated statements of operations within interest and other loss, net. During the years ended
December 31, 2016
and
2015
, foreign currency transactional losses totaled approximately
$33,191
and
$384,972
, respectively.
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(p)
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Earnings Per Share (EPS)
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Basic EPS is computed based on the weighted average number of shares of common stock outstanding. Diluted EPS is computed based on the weighted average number of common shares outstanding increased by dilutive common stock equivalents, attributable to stock option awards, restricted stock awards and Series A redeemable convertible preferred stock
outstanding.
The following represents the common stock equivalents that were excluded from the computation of diluted shares outstanding because their effect would have been anti-dilutive for the years ended
December 31, 2016
and
2015
:
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|
|
|
|
|
|
|
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Year Ended December 31,
|
|
|
2016
|
|
2015
|
Stock options and restricted stock
|
|
5,628,290
|
|
|
7,972,341
|
|
Series A redeemable convertible preferred stock
|
|
8,781,516
|
|
|
8,781,516
|
|
Total anti-dilutive common stock equivalents
|
|
14,409,806
|
|
|
16,753,857
|
|
The following represents a reconciliation of the numerators and denominators of the basic and diluted EPS computation:
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|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
2016
|
|
2015
|
Numerator:
|
|
|
|
|
Net Loss
|
|
$
|
(10,998,794
|
)
|
|
$
|
(1,929,361
|
)
|
Effects of Series A redeemable convertible preferred stock:
|
|
|
|
|
Less: Series A redeemable convertible preferred stock dividends
|
|
777,890
|
|
|
765,203
|
|
Less: Accretion to redemption value of Series A redeemable convertible preferred stock
|
|
1,181,446
|
|
|
587,613
|
|
Net loss attributable to common stockholders
|
|
$
|
(12,958,130
|
)
|
|
$
|
(3,282,177
|
)
|
|
|
|
|
|
Denominator:
|
|
|
|
|
Weighted average basic shares outstanding
|
|
43,091,878
|
|
|
41,093,644
|
|
Effect of dilutive securities:
|
|
|
|
|
Stock options and restricted stock
|
|
—
|
|
|
—
|
|
Series A redeemable convertible preferred stock
|
|
—
|
|
|
—
|
|
Weighted average diluted shares outstanding
|
|
43,091,878
|
|
|
41,093,644
|
|
|
|
|
|
|
EPS:
|
|
|
|
|
Basic net loss per share attributable to common stockholders
|
|
$
|
(0.30
|
)
|
|
$
|
(0.08
|
)
|
Diluted net loss per share attributable to common stockholders
|
|
$
|
(0.30
|
)
|
|
$
|
(0.08
|
)
|
As of
December 31, 2016
and
2015
, the Company did not have any cost-method investments.
The Company accounts for treasury stock under the cost method and includes treasury stock as a component of stockholders’ deficit.
(s) Recently Adopted Accounting Pronouncements
In November 2015, the FASB issued new guidance which requires an entity to classify deferred tax liabilities and assets, along with any related valuation allowance, as non-current in its consolidated balance sheet. The amendments in this update may be applied either prospectively to all deferred tax liabilities and assets or retrospectively to all periods presented. The amendments in this update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2016, which for the Company will be the annual period ending December 31, 2017. Early adoption, including adoption in an interim period, is permitted. The Company adopted this guidance prospectively for the year ended December 31, 2016.
In November 2014, the FASB issued new guidance which requires an entity to determine whether the host contract in a hybrid financial instrument issued in the form of a share is more akin to debt or to equity by considering the economic characteristics and risks of the entire hybrid financial instrument, including the embedded derivative feature that is being evaluated for separate accounting from the host contract. The effects of initially adopting the amendments in this update should be applied on a modified retrospective basis to existing hybrid financial instruments issued in the form of a share as of the beginning of the fiscal year for which the amendments are effective. The amendments in this update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015, which for the Company was the first quarter of 2016. The adoption of this new accounting guidance by Company has not had any impact on the Company's consolidated financial position, results of operations or cash flows.
In August 2014, the FASB issued new guidance which requires an entity to evaluate whether there are conditions or events, in the aggregate, that raise substantial doubt about the entity's ability to continue as a going concern within one year after the date that the financial statements are issued (or within one year after the financial statements are available to be issued when applicable), and to provide related footnote disclosures in certain circumstances. The amendments in this update are effective for the annual period ending after December 15, 2016, and for annual and interim periods thereafter, which for the Company is the annual period ending December 31, 2016. The Company's consolidated financial statements include appropriate disclosures in accordance with this guidance.
(t) Recently Issued Accounting Pronouncements
In January 2017, the FASB issued new guidance on accounting for goodwill to simplify the goodwill impairment test by eliminating Step 2 of the goodwill impairment test. This new guidance also eliminates the requirements for any reporting unit with a zero or negative carrying amount to perform a qualitative assessment and, if it fails that qualitative test, to perform Step 2 of the goodwill impairment test. The new standard is effective for the annual period beginning after December 15, 2019, including interim reporting periods within that period, which for the Company will be the annual period ending December 31, 2020. Early adoption, is permitted for interim or annual goodwill impairment tests performed on testing dates after January 1, 2017. The standard should be applied on a prospective basis. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on the Company's financial statements and related disclosures.
In August 2016, the FASB issued new guidance on presentation and classification of eight specific items within the statement of cash flows, including (i) debt prepayment or debt extinguishment costs, (ii) settlement of zero-coupon debt instruments or other debt instruments with coupon rates that are insignificant in relation to the effective interest rate of the borrowing, (iii) contingent consideration payments made after a business combination, (iv) proceeds from the settlement of insurance claims, (v) proceeds from the settlement of corporate-owned life insurance policies, including bank-owned life insurance policies, (vi) distributions received from equity method investees, (vii) beneficial interests in securitization transactions, and (viii) separately identifiable cash flows and application of the predominance principle. This update is effective for annual reporting periods, and interim periods therein, beginning after December 15, 2017, which for the Company will be the annual period ending December 31, 2018. Early adoption, including adoption in an interim period, is permitted. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on the Company's financial statements and related disclosures.
In March 2016, the FASB issued new guidance on accounting for employee share-based payment awards to simplify the accounting related to several aspects of accounting for share-based payment transactions, including income tax consequences of share-based payment transactions, classification of awards as either equity or liabilities, forfeitures, and classification on the statement of cash flows. The new standard is effective for the annual period beginning after December 15, 2016, including interim reporting periods within that period, which for the Company will be the annual period ending December 31, 2017. Early adoption, including adoption in an interim period, is permitted. The standard requires the use of several transition methods including a modified retrospective transition method, retrospective method and prospective method. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on the Company's financial statements and related disclosures.
In February 2016, the FASB issued new guidance on leases to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. This new guidance will replace existing guidance on leases in accounting principles generally accepted in the United States when it becomes effective. The new standard is effective for the annual period beginning after December 15, 2018, including interim reporting periods within that period, which for the Company will be the annual period ending December 31, 2019. Early application is permitted. The standard requires the use of a modified retrospective transition method; however, certain optional practical expedients may be applied. The Company's preliminary analysis indicates that the Company will recognize a liability for remaining lease payments and a right-of-use asset related the Company's operating lease covering its corporate office facility that expires in April 2021. Currently the Company's additional operating leases related to offices in foreign countries are set to expire prior to adoption of the new guidance. The Company is in the initial stages of evaluating the effect of the standard on the Company's financial statements.
In January 2016, the FASB issued new guidance on the recognition, measurement, presentation and disclosure of financial assets and financial liabilities. The standard (i) requires an entity to measure equity investments, except those accounted for under the equity method of accounting or those that result in consolidation of the investee, at fair value with changes in fair value recognized in net income, (ii) simplifies the impairment assessment of equity investments without readily determinable fair values by requiring an entity to perform a qualitative assessment to identify impairment, (iii) changes certain presentation and disclosure requirements related to financial assets and financial liabilities, and (iv) clarifies that an entity should evaluate the need for a valuation allowance on a deferred tax asset related to available-for-sale securities in combination with the entity's other deferred tax assets. The amendments in this update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2017, which for the Company will be the annual period ending December 31, 2018. Early adoption, including adoption in an interim period, is not permitted except for certain amendments in this update. The Company has not yet adopted this guidance and currently does not expect the adoption of the new guidance by the Company to have a significant impact on the Company's financial statements and related disclosures.
In May 2014, the FASB issued new guidance which requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. This new guidance will replace most existing revenue recognition guidance in Generally Accepted Accounting Principles in the United States when it becomes effective. The new standard is effective for the annual period beginning after December 15, 2017, including interim reporting periods within that period, which for the Company will be the annual period ending December 31, 2018. Early application as of January 1, 2017 is permitted. The standard permits the use of either the retrospective or cumulative effect transition method. The Company is evaluating the effect that this new guidance will have on its consolidated financial statements and related disclosures. The Company has formed an implementation team to evaluate the standard's effect on the Company's financial statements. The Company has historically deferred revenue for certain deliverables in its multiple-element arrangements due to a lack of VSOE for those deliverables. The Company's preliminary analysis indicates that the Company will recognize revenue for these arrangements earlier under the new standard than under existing guidance due to the elimination of the VSOE requirement. The Company is in the initial stages of evaluating the effect of the standard on the Company's financial statements and continues to evaluate the available transition methods.
(2) Property and Equipment
Property and equipment consist of the following:
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2016
|
|
December 31, 2015
|
Computer hardware and software
|
|
$
|
16,913,397
|
|
|
$
|
16,607,596
|
|
Furniture and equipment
|
|
911,391
|
|
|
961,712
|
|
Leasehold improvements
|
|
1,930,701
|
|
|
1,931,291
|
|
Automobile
|
|
—
|
|
|
13,008
|
|
Property and Equipment, Gross
|
|
19,755,489
|
|
|
19,513,607
|
|
Less accumulated depreciation
|
|
(18,580,547
|
)
|
|
(17,947,675
|
)
|
Property and Equipment, Net
|
|
$
|
1,174,942
|
|
|
$
|
1,565,932
|
|
During the year ended
December 31, 2016
, the Company wrote off approximately
$113,000
of fixed assets and approximately
$110,000
of related accumulated depreciation related to assets that were no longer in use. During the year ended December 31, 2015, the Company wrote off approximately
$214,000
of fixed assets and approximately
$161,000
of related accumulated depreciation related to assets that were no longer in use.
Depreciation expense was
$713,854
and
$1,308,723
in
2016
and
2015
, respectively.
(3) Fair Value Measurements
The Company measures its cash equivalents, marketable securities and derivative instruments at fair value. Fair value is an exit price, representing the amount that would be received on the sale of an asset or that would be paid to transfer a liability in an orderly transaction between market participants. As a basis for considering such assumptions, the Company utilizes a three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies in measuring fair value.
Fair Value Hierarchy
The methodology for measuring fair value specifies a hierarchy of valuation techniques based upon whether the inputs to those valuation techniques reflect assumptions other market participants would use based upon market data obtained from independent sources (observable inputs) or reflect the Company’s own assumptions of market participant valuation (unobservable inputs). As a result, observable and unobservable inputs have created the following fair value hierarchy:
|
|
•
|
Level 1 – Quoted prices in active markets that are unadjusted and accessible at the measurement date for identical, unrestricted assets or liabilities. At
December 31, 2016
and
2015
, the Level 1 category included money market funds and commercial paper, which are included within “cash and cash equivalents” in the consolidated balance sheets.
|
|
|
•
|
Level 2 – Quoted prices for identical assets and liabilities in markets that are not active, quoted prices for similar assets and liabilities in active markets or financial instruments for which significant inputs are observable, either directly or indirectly. The Company had no Level 2 securities at December 31, 2016. At December 31, 2015, the Level 2 category included government securities and corporate debt securities, which are included within “marketable securities” in the consolidated balance sheets.
|
|
|
•
|
Level 3 – Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable. At
December 31, 2016
and
2015
, the Level 3 category included derivatives, which are included in "other long-term liabilities" in the consolidated balance sheets with the change in fair value from the period included in "interest and other loss, net" in the consolidated statement of operations. The Company did not hold any cash, cash equivalents or marketable securities categorized as Level 3 as of
December 31, 2016
or
2015
.
|
Measurement of Fair Value
The Company measures fair value as an exit price using the procedures described below for all assets and liabilities measured at fair value. When available, the Company uses unadjusted quoted market prices to measure fair value and classifies such items within Level 1. If quoted market prices are not available, fair value is based upon financial models that use, when possible, current market-based or independently-sourced market parameters such as interest rates and currency rates. Items valued using financial generated models are classified according to the lowest level input or value driver that is significant to the valuation. Thus, an item may be classified in Level 3 even though there may be inputs that are readily observable. If quoted market prices are not available, the valuation model used generally depends on the specific asset or liability being valued. The determination of fair value considers various factors including interest rate yield curves and time value underlying the financial instruments.
The fair value of the Company’s investments in corporate debt and government securities have been determined utilizing third party pricing services and reviewed by management. The pricing services use inputs to determine fair value which are derived from observable market sources including reportable trades, benchmark curves, credit spreads, broker/dealer quotes, bids, offers, and other industry and economic events. These investments are included in Level 2 of the fair value hierarchy.
The fair value of the Company’s derivatives were valued using the Black-Scholes pricing model adjusted for probability assumptions, with all significant inputs, except for the probability and volatility assumptions, derived from or corroborated by observable market data such as stock price and interest rates. The probability and volatility assumptions are both significant to the fair value measurement and unobservable. These embedded derivatives are included in Level 3 of the fair value hierarchy.
Items Measured at Fair Value on a Recurring Basis
The following table presents the Company’s assets and liabilities that are measured at fair value on a recurring basis at
December 31, 2016
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using
|
|
|
Total
|
|
Quoted Prices in Active Markets for Identical Assets
(Level 1)
|
|
Significant other
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Cash equivalents:
|
|
|
|
|
|
|
|
|
Money market funds
|
|
$
|
1,133,280
|
|
|
$
|
1,133,280
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Total cash equivalents
|
|
1,133,280
|
|
|
1,133,280
|
|
|
—
|
|
|
—
|
|
Marketable securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate debt and government securities
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Total marketable securities
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Derivative liabilities:
|
|
|
|
|
|
|
|
|
Derivative Instruments
|
|
336,862
|
|
|
—
|
|
|
—
|
|
|
336,862
|
|
Total derivative liabilities
|
|
336,862
|
|
|
—
|
|
|
—
|
|
|
336,862
|
|
|
|
|
|
|
|
|
|
|
Total assets and liabilities measured at fair value
|
|
$
|
1,470,142
|
|
|
$
|
1,133,280
|
|
|
$
|
—
|
|
|
$
|
336,862
|
|
The following table presents the Company’s assets and liabilities that are measured at fair value on a recurring basis at
December 31, 2015
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements at Reporting Date Using
|
|
|
Total
|
|
Quoted Prices in Active Markets for Identical Assets
(Level 1)
|
|
Significant other
Inputs
(Level 2)
|
|
Significant
Unobservable
Inputs
(Level 3)
|
Cash equivalents:
|
|
|
|
|
|
|
|
|
Money market funds and commercial paper
|
|
$
|
2,725,094
|
|
|
$
|
2,725,094
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Total cash equivalents
|
|
2,725,094
|
|
|
2,725,094
|
|
|
—
|
|
|
—
|
|
Marketable securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate debt and government securities
|
|
7,420,042
|
|
|
—
|
|
|
7,420,042
|
|
|
—
|
|
Total marketable securities
|
|
7,420,042
|
|
|
—
|
|
|
7,420,042
|
|
|
—
|
|
Derivative liabilities:
|
|
|
|
|
|
|
|
|
Derivative Instruments
|
|
82,024
|
|
|
—
|
|
|
—
|
|
|
82,024
|
|
Total derivative liabilities
|
|
82,024
|
|
|
—
|
|
|
—
|
|
|
82,024
|
|
|
|
|
|
|
|
|
|
|
Total assets and liabilities measured at fair value
|
|
$
|
10,227,160
|
|
|
$
|
2,725,094
|
|
|
$
|
7,420,042
|
|
|
$
|
82,024
|
|
The following table presents the Company’s assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) as of each of the years ended
December 31, 2016
and
2015
:
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements Using
Significant Unobservable Inputs
(Level 3)
|
|
|
December 31, 2016
|
|
December 31, 2015
|
Beginning Balance
|
|
$
|
82,024
|
|
|
$
|
137,171
|
|
Issuance of Derivative Instruments
|
|
—
|
|
|
—
|
|
Total loss (gain) recognized in earnings
|
|
254,838
|
|
|
(55,147
|
)
|
Ending Balance
|
|
$
|
336,862
|
|
|
$
|
82,024
|
|
(4) Marketable Securities
The Company’s marketable securities consist of available-for-sale securities, which are carried at fair value, with unrealized gains and losses reported as a separate component of stockholders’ equity. Unrealized gains and losses are computed on the specific identification method. Realized gains, realized losses and declines in value judged to be other-than-temporary, are included in interest and other income (loss), net. The cost of available-for-sale securities sold is based on the specific identification method and interest earned is included in interest and other income.
As of
December 31, 2016
, the Company had
no
available-for-sale marketable securities. The cost and fair values of the Company’s available-for-sale marketable securities as of
December 31, 2015
, were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate
Fair Value
|
|
Cost or Amortized
Cost
|
|
Net Unrealized
Losses
|
Government securities
|
|
$
|
6,560,303
|
|
|
$
|
6,562,792
|
|
|
$
|
(2,489
|
)
|
Corporate debt securities
|
|
859,739
|
|
|
860,656
|
|
|
(917
|
)
|
|
|
$
|
7,420,042
|
|
|
$
|
7,423,448
|
|
|
$
|
(3,406
|
)
|
(5) Accrued Expenses
Accrued expenses are comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2016
|
|
December 31, 2015
|
Accrued compensation
|
|
$
|
1,058,671
|
|
|
$
|
2,236,494
|
|
Accrued consulting and professional fees
|
|
1,270,568
|
|
|
1,561,425
|
|
Accrued marketing and promotion
|
|
10,307
|
|
|
69,258
|
|
Other accrued expenses
|
|
259,567
|
|
|
588,746
|
|
Accrued income taxes
|
|
129,784
|
|
|
106,270
|
|
Accrued other taxes
|
|
699,872
|
|
|
1,247,596
|
|
Accrued hardware purchases
|
|
—
|
|
|
67,280
|
|
Accrued restructuring costs
|
|
846,337
|
|
|
717,640
|
|
Accrued Series A redeemable convertible preferred stock dividends
|
|
195,904
|
|
|
188,805
|
|
|
|
$
|
4,471,010
|
|
|
$
|
6,783,514
|
|
(6) Income Taxes
Information pertaining to the Company’s loss before income taxes and the applicable provision for income taxes is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
2016
|
|
2015
|
Loss before income taxes:
|
|
|
|
|
Domestic loss
|
|
$
|
(10,998,240
|
)
|
|
$
|
(2,310,565
|
)
|
Foreign income
|
|
586,653
|
|
|
756,747
|
|
Total loss before income taxes:
|
|
(10,411,587
|
)
|
|
(1,553,818
|
)
|
Provision (benefit) for income taxes:
|
|
|
|
|
|
|
Current:
|
|
|
|
|
|
|
Federal
|
|
$
|
(17,626
|
)
|
|
$
|
3,939
|
|
State and local
|
|
1,886
|
|
|
16,002
|
|
Foreign
|
|
723,502
|
|
|
482,242
|
|
|
|
707,762
|
|
|
502,183
|
|
Deferred:
|
|
|
|
|
|
|
Federal
|
|
$
|
154,641
|
|
|
$
|
(167,634
|
)
|
State and local
|
|
1,766
|
|
|
7,006
|
|
Foreign
|
|
(276,962
|
)
|
|
33,988
|
|
|
|
(120,555
|
)
|
|
(126,640
|
)
|
Total provision for income taxes:
|
|
$
|
587,207
|
|
|
$
|
375,543
|
|
During
2016
, the Company recorded a tax provision of
$587,207
related to state and local and foreign income taxes, inclusive of a tax provision of
$122,004
as a result of the Company's change in estimate with respect to the realizability of its AMT credits. During
2015
the Company recorded a tax provision of
$375,543
related to state and local and foreign income taxes and is inclusive of a tax benefit of
$180,021
related to certain AMT tax credits that became realizable on a more-likely-than-not basis as a result of recent federal tax legislation enacted in December 2015.
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
2016
|
|
2015
|
Deferred Tax Assets:
|
|
|
|
|
Allowance for receivables
|
|
$
|
100,414
|
|
|
$
|
72,539
|
|
Deferred revenue
|
|
3,648,029
|
|
|
2,939,462
|
|
Share-based compensation
|
|
2,254,428
|
|
|
3,095,723
|
|
Accrued expenses and other liabilities
|
|
418,483
|
|
|
307,565
|
|
Domestic net operating loss carryforwards
|
|
30,714,934
|
|
|
26,023,318
|
|
Foreign net operating loss carryforwards
|
|
9,761
|
|
|
99,544
|
|
Tax credit carryforwards
|
|
574,997
|
|
|
574,997
|
|
AMT tax credit carryforwards
|
|
460,607
|
|
|
483,285
|
|
Capital loss carryforwards
|
|
78,296
|
|
|
77,586
|
|
Fixed assets
|
|
489,105
|
|
|
554,154
|
|
Intangibles
|
|
1,435,994
|
|
|
1,762,519
|
|
Sub-total
|
|
40,185,048
|
|
|
35,990,692
|
|
Valuation allowance
|
|
(38,800,877
|
)
|
|
(35,121,608
|
)
|
Total Deferred Tax Assets
|
|
1,384,171
|
|
|
869,084
|
|
Deferred Tax Liabilities:
|
|
|
|
|
|
Deferred state income tax
|
|
(923,553
|
)
|
|
(541,359
|
)
|
Foreign withholding taxes
|
|
(137,659
|
)
|
|
(128,261
|
)
|
Total Deferred Tax Liabilities
|
|
(1,061,212
|
)
|
|
(669,620
|
)
|
Net Deferred Tax Assets
|
|
$
|
322,959
|
|
|
$
|
199,464
|
|
As of each reporting date, the Company considers new evidence, both positive and negative, that could affect its view of the future realization of deferred tax assets. During 2015, the Company considered the impact of new legislation regarding potential refunds of its AMT tax credits and determined that there is sufficient positive evidence to conclude that it is more-likely-than-not that AMT credits of
$180,021
are realizable which resulted in a reduction to the valuation allowance and a benefit to income tax expense. During 2016, the Company revised its estimate of potential refundable AMT credits and recorded an income tax provision of
$122,004
. The Company determined its other net domestic deferred tax assets are not realizable on a more-likely-than-not basis.
As of
December 31, 2016
, the Company had federal net operating loss carryforwards of approximately
$84.7 million
which are set to
expire beginning in 2030 through 2036, if not utilized.
As of
December 31, 2016
, the Company had approximately
$3.6 million
of various tax credit carryforwards, of which, approximately
$3.1 million
related to research and development tax credit carryforwards which expire at various dates beginning in 2023 through 2028, if not utilized. As of
December 31, 2016
, the Company had approximately
$0.5 million
related to AMT credit carryforwards, which may be carried forward indefinitely.
As of
December 31, 2016
, the Company had not provided for the United States income or additional foreign withholding taxes on approximately
$4.2 million
of undistributed earnings of its subsidiaries operating outside of the United States, with the exception of China. It is the Company’s practice and intention to reinvest those earnings permanently. Generally, such amounts become subject to United States taxation upon remittance of dividends and under certain other circumstances. Determination of the amount of any unrecognized deferred tax liability related to investments in these foreign subsidiaries is not practicable.
The effective tax rate before income taxes varies from the current statutory federal income tax rate as follows:
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
2016
|
|
2015
|
Tax at Federal statutory rate
|
|
$
|
(3,644,056
|
)
|
|
$
|
(543,836
|
)
|
Increase (reduction) in income taxes resulting from:
|
|
|
|
|
|
|
State and local taxes
|
|
2,172
|
|
|
3,195
|
|
Non-deductible expenses
|
|
(28,812
|
)
|
|
(31,199
|
)
|
Net effect of foreign operations
|
|
232,858
|
|
|
235,850
|
|
Uncertain tax positions
|
|
12,440
|
|
|
26,814
|
|
Change in valuation allowance
|
|
4,011,710
|
|
|
680,780
|
|
Other
|
|
895
|
|
|
3,939
|
|
|
|
$
|
587,207
|
|
|
$
|
375,543
|
|
A reconciliation of the beginning and ending amount of unrecognized tax benefits, excluding interest and penalties, is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
2016
|
|
2015
|
Balance at January 1,
|
|
$
|
217,289
|
|
|
$
|
224,637
|
|
Increases to tax positions taken in prior years
|
|
4,510
|
|
|
9,306
|
|
Decreases to tax positions taken in prior years
|
|
—
|
|
|
—
|
|
Increase for tax positions taken during the current year
|
|
—
|
|
|
—
|
|
Expiration of statutes of limitation
|
|
(3,323
|
)
|
|
—
|
|
Translation
|
|
(1,015
|
)
|
|
(16,654
|
)
|
Balance at December 31,
|
|
$
|
217,461
|
|
|
$
|
217,289
|
|
At
December 31, 2016
,
$328,739
including interest, if recognized, would reduce the Company’s annual effective tax rate. As of
December 31, 2016
, the Company had approximately
$111,278
of accrued interest. The Company believes it is reasonably possible that
$96,907
of its unrecognized tax benefits will reverse within the next
12 months
. The Company records any interest and penalties related to unrecognized tax benefits in income tax expense.
The Company files federal, state, and foreign income tax returns in jurisdictions with varying statutes of limitations. The 2013 through 2016 tax years generally remain subject to examination by federal and most state tax authorities. In addition to the U.S., the Company’s major taxing jurisdictions include China, Taiwan, Japan, France and Germany.
(7) Accumulated Other Comprehensive Loss
The changes in Accumulated Other Comprehensive Loss, net of applicable tax, for
December 31, 2016
are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign
Currency
Translation
|
|
Net
Unrealized
Losses on
Marketable
Securities
|
|
Net
Minimum
Pension
Liability
|
|
Total
|
Accumulated other comprehensive (loss) income at December 31, 2015
|
|
$
|
(1,726,994
|
)
|
|
$
|
(3,406
|
)
|
|
$
|
27,186
|
|
|
$
|
(1,703,214
|
)
|
Other comprehensive (loss) income
|
|
|
|
|
|
|
|
|
Other comprehensive loss before reclassifications
|
|
(139,394
|
)
|
|
—
|
|
|
(3,447
|
)
|
|
(142,841
|
)
|
Amounts reclassified from accumulated other comprehensive (loss) income
|
|
—
|
|
|
3,406
|
|
|
4,936
|
|
|
8,342
|
|
Total other comprehensive (loss) income
|
|
(139,394
|
)
|
|
3,406
|
|
|
1,489
|
|
|
(134,499
|
)
|
Accumulated other comprehensive (loss) income at December 31, 2016
|
|
$
|
(1,866,388
|
)
|
|
$
|
—
|
|
|
$
|
28,675
|
|
|
$
|
(1,837,713
|
)
|
The changes in Accumulated Other Comprehensive Loss, net of applicable tax, for
December 31, 2015
are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign
Currency
Translation
|
|
Net
Unrealized
Gains (Losses) on
Marketable
Securities
|
|
Net
Minimum
Pension
Liability
|
|
Total
|
Accumulated other comprehensive (loss) income at December 31, 2014
|
|
$
|
(1,536,495
|
)
|
|
$
|
(1,408
|
)
|
|
$
|
26,613
|
|
|
$
|
(1,511,290
|
)
|
Other comprehensive (loss) income
|
|
|
|
|
|
|
|
|
Other comprehensive loss before reclassifications
|
|
(190,499
|
)
|
|
(1,549
|
)
|
|
(5,997
|
)
|
|
(198,045
|
)
|
Amounts reclassified from accumulated other comprehensive (loss) income
|
|
—
|
|
|
(449
|
)
|
|
6,570
|
|
|
6,121
|
|
Total other comprehensive (loss) income
|
|
(190,499
|
)
|
|
(1,998
|
)
|
|
573
|
|
|
(191,924
|
)
|
Accumulated other comprehensive (loss) income at December 31, 2015
|
|
$
|
(1,726,994
|
)
|
|
$
|
(3,406
|
)
|
|
$
|
27,186
|
|
|
$
|
(1,703,214
|
)
|
For the year ended
December 31, 2016
and
2015
, the amounts reclassified to net loss related to the Company’s defined benefit plan and maturities of marketable securities. These amounts are included within “Operating loss" within the consolidated statement of operations.
(8) Series A Redeemable Convertible Preferred Stock
On September 16, 2013, the Company issued to Hale Capital Partners, LP (“Hale”)
900,000
shares of the Company’s Series A redeemable convertible preferred stock, par value
$0.001
per share, at a price of
$10
per share, for an aggregate purchase consideration of
$9.0 million
, which was subsequently transferred to HCP-FVA LLC. Each share of Series A redeemable convertible preferred stock is convertible into common stock equivalents, at the option of the holder and upon certain mandatory conversion events described below, at a conversion rate of
$1.02488
(as adjusted for stock splits, stock dividends, reverse stock splits, stock combinations, reclassifications and similar events). The Company received net proceeds of approximately
$8.7 million
from the issuance of the redeemable convertible preferred stock in 2013, net of transaction costs.
If the volume weighted average price of common stock for each trading day of any
60
consecutive trading days exceeds
250%
of the conversion price and exceeds
225%
of the conversion price through the conversion date, and certain equity conditions are met such that shares of common stock issued upon conversion can be immediately saleable by the redeemable convertible preferred stockholders, the Company can convert the redeemable convertible preferred stock up to an amount equal to the greater of
25%
of the daily trading volume for the
20
consecutive trading days immediately preceding the conversion date or the amount of an identified bona fide block trade at a price reasonably acceptable to the applicable redeemable convertible preferred stockholder, but which price is not less than the arithmetic average of the weighted average prices of the common stock for the five trading days immediately preceding such sale.
The holders of the Series A redeemable convertible preferred stock have veto power over certain future financings, and certain rights to participate in any subsequent financing, whether through debt or equity (subject to certain exclusions). In addition, the Company's agreements with the holders of the Series A redeemable convertible preferred stock provide that if, at the time of certain future debt or equity financings, the proceeds of which exceed
$5.0 million
, the holders of the Series A redeemable convertible preferred stock still have outstanding Series A redeemable convertible preferred stock, then the Company must offer to repurchase their Series A redeemable convertible preferred stock. The holders of the Series A redeemable convertible preferred stock have the right to accept the offer or to retain their Series A redeemable convertible preferred stock. If the Company does a financing, and the holders of the Series A redeemable convertible preferred stock elect to have their Series A redeemable convertible preferred stock repurchased, then the capital raised in excess of
$5.0 million
will go to repurchase the holders’ Series A redeemable convertible preferred stock, instead of being able to be used for our business.
The Company cannot consummate a fundamental sale transaction in which the consideration is stock or a combination of cash and stock without the consent of the holder of the Series A redeemable convertible preferred stock.
In addition to the veto rights set forth in the preceding paragraph, upon consummation of a fundamental sale transaction in which the consideration is cash and is not approved by the holder of the Series A redeemable convertible preferred stock, the Series A redeemable convertible preferred stock shall be redeemed at a per share redemption price equal to the greater of (i)
250%
of the stated value of the Series A redeemable convertible preferred stock (which is currently equal to
$22.5 million
or
$2.56
per share of common stock held by the holder of the Series A redeemable convertible preferred stock on an as converted basis as of
December 31, 2016
) and (ii) the price such holder would receive in the transaction on an as converted basis.
Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect, failure to achieve minimum financial covenants or failure of the Company to issue shares upon conversion of the Series A redeemable convertible preferred stock in accordance with its obligations, the Series A redeemable convertible preferred stockholders may require the Company to redeem all or some of the Series A redeemable convertible preferred stock at a price equal to the greater of
100%
of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price as of the occurrence of the triggering event. On or after August 5, 2017, each Series A redeemable convertible preferred stockholder can require the Company to redeem its Series A redeemable convertible preferred stock in cash at a price equal to
100%
of the stated value being redeemed plus accrued and unpaid dividends. If the Company does not have the funds necessary to redeem the Series A redeemable convertible preferred stock, the dividends accruing on any outstanding Series A redeemable convertible preferred stock will increase to prime plus
10%
(from prime plus
5%
). For each six months that the Series A redeemable convertible preferred stock remains unredeemed, the dividend rate increases by
1%
, subject to a maximum dividend rate of
19%
. In addition, the Company's failure to redeem the Series A redeemable convertible preferred stock would be considered a “Breach Event” under the agreements with the holders of the Series A redeemable convertible preferred stock. If a Breach Event were to occur and the Company is in default under or has breached any provision in respect of its obligations to redeem the Series A redeemable convertible preferred stock, then, under the agreements with the holders of our Series A redeemable convertible preferred stock, the Company's Board of Directors would automatically be increased, with the holders of the Series A redeemable convertible preferred stock having the right to appoint the new directors, so that the holders of the Series A redeemable convertible preferred stock would have appointed a majority of the Board of Directors. This would give the holders of the Series A redeemable convertible preferred stock control of the Company. As of
December 31, 2016
, the Company was not in compliance with the financial covenants of the Series A redeemable convertible preferred stock for two consecutive quarters, which provides the Series A redeemable convertible preferred stockholders the right to require the Company to redeem any of the Series A redeemable convertible preferred stock at the greater of
100%
of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price of the Company's common stock as of
December 31, 2016
. To date, the holders of the Series A redeemable convertible preferred stock have neither exercised nor waived this right and accordingly this right may be exercised at any time. As of
December 31, 2016
, the Company did not fail any non-financial covenants related to the Company's Series A redeemable convertible preferred stock.
Holders of the Series A redeemable convertible preferred stock are entitled to receive quarterly dividends at the Prime Rate (Wall Street Journal Eastern Edition) plus 5% (up to a maximum amount of 10%)
, payable in cash, provided, that if the Company will not have at least
$1.0 million
in positive cash flow for any calendar quarter after giving effect to the payment of such dividends, the Company, at its election, can pay such dividends in whole or in part in cash, provided that cash flow from operations is not negative, and the remainder can be accrued or paid in common stock to the extent certain equity conditions are satisfied. During 2016, the Company issued
624,009
shares of the Company's common stock as payment for the fourth quarter 2015 and the first three quarters of 2016 dividends. As of December 31, 2016, due to the lack of sufficient surplus to pay dividends as required by the Delaware General Business Corporation Law, the Company was not permitted to pay the fourth quarter dividend in cash or through the issuance of the Company's common stock and accrued the fourth quarter 2016 dividend. As of
December 31, 2016
, the Company's liability for dividends to the holders of the Series A redeemable convertible preferred stock totaled
$195,904
.
Each share of redeemable convertible preferred stock has a vote equal to the number of shares of common stock into which the redeemable convertible preferred stock would be convertible as of the record date of September 13, 2013. The Company’s closing stock price on the record date was
$1.23
per share which results in voting power of an aggregate of
7,317,073
shares. In addition, holders of a majority of the redeemable convertible preferred stock must approve certain actions, including any amendments to the Company's charter or bylaws that adversely affects the voting powers, preferences or other rights of the redeemable convertible preferred stock; payment of dividends or distributions; any liquidation, capitalization, reorganization or any other fundamental transaction of the Company; issuance of certain equity securities senior to or in parity with the redeemable convertible preferred stock as to dividend rights, redemption rights, liquidation preference and other rights; issuances of equity below the conversion price; any liens or borrowings other than non-convertible indebtedness from standard commercial lenders which does not exceed
80%
of the Company’s accounts receivable; and the redemption or purchase of any capital stock of the Company.
The Company has classified the Series A redeemable convertible preferred stock as temporary equity in the financial statements as it is subject to redemption at the option of the holder under certain circumstances.
As a result of the Company’s analysis of all the embedded conversion and put features within the Series A redeemable convertible preferred stock, the contingent redemption put options in the Series A redeemable convertible preferred stock were determined to not be clearly and closely related to the debt-type host and also did not meet any other scope exceptions for derivative accounting. Therefore the contingent redemption put options are being accounted for as derivative instruments and the fair value of these derivative instruments were bifurcated from the Series A redeemable convertible preferred stock and recorded as a liability. As of
December 31, 2016
and
2015
the fair value of these derivative instruments was
$336,862
and
$82,024
, respectively, and were included in "other long-term liabilities" within the consolidated balance sheets. The loss on the change in fair value of these derivative instruments for
2016
of
$254,838
and the gain on the change in fair value of these derivative instruments for
2015
of
$55,147
, were included in “interest and other loss, net” within the consolidated statement of operations.
At the time of issuance the Company recorded transaction costs, a beneficial conversion feature and the fair value allocated to the embedded derivatives as discounts to the Series A redeemable convertible preferred stock. These costs are being accreted to the Series A redeemable convertible preferred stock using the effective interest method through the stated redemption date of August 5, 2017, which represents the earliest redemption date of the instrument. The Company included deductions of
$1,181,446
and
$587,613
as accretion adjustments to net loss attributable to common stockholders on the statement of operations and in determining loss per share for the years ended
December 31, 2016
and
2015
, respectively. The Company also included deductions of
$777,890
and
$765,203
as adjustments to net loss attributable to common shareholders on the statement of operations and in determining loss per share for the years ended
December 31, 2016
and
2015
, respectively, for dividends (including accrued dividends) on the Series A redeemable convertible preferred stock during the period.
(9) Stockholders’ Equity
Stock Repurchase Activity
On April 22, 2015, the Company’s Board of Directors (the "Board") approved a new stock buy-back program (the "Repurchase Program"). The Repurchase Program authorizes management to repurchase in the aggregate up to
five million
shares of the Company's common stock. Repurchases may be made by the Company from time to time in open-market or privately-negotiated transactions as permitted by securities laws and other legal requirements, and subject to market conditions and other factors. The Repurchase Program superseded and replaced the Company's prior stock buy-back program. The Repurchase Program does not obligate the Company to make repurchases at any specific time or situation. The Company was required to obtain approvals from the Series A redeemable convertible preferred stockholders for the Repurchase Program. The Repurchase Program does not have an expiration date and may be amended or terminated by the Board at any time without prior notice.
During the year ended
December 31, 2016
, the Company repurchased
no
shares of its common stock. During the year ended December 31, 2015, the Company repurchased
92,161
shares of its common stock at an aggregate purchase price of
$137,858
or
$1.50
per share. As of
December 31, 2016
, the Company had the authorization to repurchase
4,907,839
shares of its common stock based upon its judgment and market conditions.
Independent Marketing Agreement
On July 24, 2015, the Company entered into an Independent Marketing Agreement with RFN Prime Marketing Inc., to provide among other items, certain sales and marketing deliverables to the Company and originally entitled RFN Prime Marketing Inc., to receive up to
2.55 million
shares of restricted Company common stock which will be issued based on certain milestone achievements and/or transactions over a
twenty-four
month period. The restricted Company common stock will be valued as they are earned, and the resulting value will be recorded as an expense in the period in which the performance milestone is met and the stock is earned. As of
December 31, 2016
, none of the performance milestones have been met, and therefore
no
restricted Company common stock has been issued.
(10) Share-Based Payment Arrangements
On April 27, 2016, the Company’s stockholders adopted the FalconStor Software, Inc. 2016 Incentive Stock Plan (the "2016 Plan"). The 2016 Plan is administered by the Compensation Committee and initially provided for the issuance of up to
1,500,000
shares of the Company’s common stock upon the exercise of options or upon the grant of shares with such restrictions as determined by the Compensation Committee to the employees, consultants and non-employee directors of the Company. Exercise prices of the options must be equal to the fair market value of the common stock on the date of grant. Options granted have terms of
ten years
. Shares of restricted stock have the terms and conditions set by the Board of Directors and are forfeitable until the terms of the grant have been satisfied. The 2016 Plan replaces the Company's 2006 Incentive Stock Plan.
On April 27, 2016, the Company’s stockholders adopted the FalconStor Software, Inc. 2016 Outside Directors Equity Compensation Plan (the “2016 Director Plan”). The 2016 Director Plan is administered by the Board of Directors and provides for the issuance of up to
400,000
shares of the Company’s common stock upon the exercise of options or upon the grant of shares with such restrictions as determined by the Board of Directors to the non-employee directors of the Company. Exercise prices of the options must be equal to the fair market value of the common stock on the date of grant. Options granted have terms of
ten years
. Shares of restricted stock have the terms and conditions set by the Board of Directors and are forfeitable until the terms of the grant have been satisfied. The 2016 Director Plan replaces the 2013 Outside Directors Equity Compensation Plan.
The following table summarizes the plans under which the Company granted equity compensation as of
December 31, 2016
:
|
|
|
|
|
|
|
|
|
|
Name of Plan
|
|
Shares
Authorized
|
|
Shares Available
for Grant
|
|
Shares
Outstanding
|
|
Last Date for Grant
of Shares
|
FalconStor Software, Inc., 2016 Incentive Stock Plan
|
|
2,166,606
|
|
1,779,170
|
|
220,000
|
|
April 27, 2026
|
FalconStor Software, Inc., 2016 Outside Directors Equity Compensation Plan
|
|
400,000
|
|
380,000
|
|
20,000
|
|
April 27, 2019
|
On June 30,
2016
, the total shares available for issuance under the 2016 Plan totaled
1,500,000
. Pursuant to the 2016 Plan, if, on July 1
st
of any calendar year in which the 2016 Plan is in effect, the number of shares of stock as to which options, restricted shares and restricted stock units may be granted under the 2016 Plan is less than five percent (
5%
) of the number of outstanding shares of stock, then the number of shares of stock available for issuance under the 2016 Plan is automatically increased so that the number equals five percent (
5%
) of the shares of stock outstanding. In no event shall the number of shares of stock subject to the 2016 Plan in the aggregate exceed
twenty million
shares, subject to adjustment as provided in the 2016 Plan. On July 1,
2016
, the total number of outstanding shares of the Company’s common stock totaled
43,332,111
. Pursuant to the 2016 Plan, the total shares available for issuance under the 2016 Plan thus increased
666,606
to
2,166,606
shares available for issuance as July 1,
2016
.
The following table summarizes the Company’s equity plans that have expired but that still have equity awards outstanding as of
December 31, 2016
:
|
|
|
|
|
|
Name of Plan
|
|
Shares Available for Grant
|
|
Shares Outstanding
|
FalconStor Software, Inc., 2006 Incentive Stock Plan
|
|
—
|
|
5,060,590
|
FalconStor Software, Inc., 2013 Outside Directors Equity Compensation Plan
|
|
—
|
|
20,200
|
FalconStor Software, Inc., 2007 Outside Directors Equity Compensation Plan
|
|
—
|
|
160,000
|
FalconStor Software, Inc., 2000 Stock Option Plan
|
|
—
|
|
147,500
|
All outstanding options granted under the Company’s equity plans have terms of
ten years
A summary of the Company’s stock option activity for
2016
is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
Options
|
|
Weighted
Average
Price
|
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
|
Aggregate
Intrinsic
Value
|
Options Outstanding at December 31, 2015
|
|
4,855,941
|
|
|
$
|
3.53
|
|
|
4.76
|
|
$
|
632,581
|
|
Granted
|
|
870,000
|
|
|
$
|
1.27
|
|
|
|
|
|
Exercised
|
|
—
|
|
|
$
|
—
|
|
|
|
|
|
Forfeited
|
|
(1,714,120
|
)
|
|
$
|
2.65
|
|
|
|
|
|
Expired
|
|
(520,331
|
)
|
|
$
|
5.05
|
|
|
|
|
|
Options Outstanding at December 31, 2016
|
|
3,491,490
|
|
|
$
|
3.18
|
|
|
4.83
|
|
$
|
—
|
|
Options Exercisable at December 31, 2016
|
|
2,671,990
|
|
|
$
|
3.77
|
|
|
3.47
|
|
$
|
—
|
|
Options Expected to Vest after December 31, 2016 (1)
|
|
573,650
|
|
|
$
|
1.25
|
|
|
9.29
|
|
$
|
—
|
|
(1) Options expected to vest after December 31, 2016 reflect an estimated forfeiture rate
|
|
|
|
Stock option exercises are fulfilled with new shares of common stock.
The Company recognized share-based compensation expense for all awards issued under the Company’s stock equity plans in the following line items in the consolidated statement of operations:
|
|
|
|
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Cost of revenue - Product
|
|
$
|
—
|
|
|
$
|
—
|
|
Cost of revenue - Support and Service
|
|
80,903
|
|
|
98,776
|
|
Research and development costs
|
|
1,653,336
|
|
|
806,348
|
|
Selling and marketing
|
|
241,481
|
|
|
285,787
|
|
General and administrative
|
|
352,498
|
|
|
738,466
|
|
|
|
$
|
2,328,218
|
|
|
$
|
1,929,377
|
|
The Company did not recognize any tax benefits related to share-based compensation expense during the years ended
December 31, 2016
and
2015
.
The Company has the ability to issue both restricted stock and restricted stock units. The fair value of the restricted stock awards and restricted stock units are expensed at either (i) the fair value per share at date of grant (directors, officers and employees), or (ii) the fair value per share as of each reporting period (non-employee consultants). A summary of the total stock-based compensation expense related to restricted stock awards and restricted stock units, which is included in the Company’s total share-based compensation expense for each respective year, is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Directors, officers and employees
|
|
$
|
598,549
|
|
|
$
|
827,055
|
|
Non-employee consultants
|
|
96,237
|
|
|
—
|
|
|
|
$
|
694,786
|
|
|
$
|
827,055
|
|
A summary of the Company’s restricted stock activity for
2016
is as follows:
|
|
|
|
|
|
|
Number of Restricted Stock Awards
|
Non-Vested at December 31, 2015
|
|
3,116,400
|
|
Granted
|
|
737,436
|
|
Vested
|
|
(565,511
|
)
|
Forfeited
|
|
(1,151,525
|
)
|
Non-Vested at December 31, 2016
|
|
2,136,800
|
|
On July 28, 2015 the Company granted
500,000
shares of restricted stock to the President and Chief Executive Officer of the Company. The restricted shares have terms of
10
years. The restrictions of the restricted stock lapse upon the Company's achievement of performance criteria related to the Company's Common Stock closing trading price. The fair value of the common stock price market condition was calculated using the Monte Carlo simulation model resulting in a weighted average fair value of
$1.05
per share. Share-based compensation expense for the common stock price market condition is being recorded straight-line over the service period derived from the Monte Carlo simulation since the awards exercisability depends entirely on achieving a market condition. The explicit service period and the service period derived from the Monte Carlo simulation were the same for the grant.
Restricted stock and restricted stock units are fulfilled with new shares of common stock. The total intrinsic value of restricted stock for which the restrictions lapsed during the years ended
December 31, 2016
and
2015
was
$637,404
and
$447,777
, respectively.
Options granted to non-employee consultants have exercise prices equal to the fair market value of the stock on the date of grant and a contractual term of
ten years
. Restricted stock awards granted to non-employee consultants have a contractual term equal to the lapse of restriction(s) of each specific award. Vesting periods for share-based awards granted to non-employee consultants range from immediate vesting to
three years
depending on service requirements. A summary of the total stock-based compensation expense related to share-based awards granted to non-employee consultants, which is included in the Company’s total share-based compensation expense for each respective period, is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Non-qualified stock options
|
|
$
|
(5,915
|
)
|
|
$
|
73,539
|
|
Restricted stock awards
|
|
96,237
|
|
|
—
|
|
|
|
$
|
90,322
|
|
|
$
|
73,539
|
|
On March 7, 2016, the Company issued an aggregate of
507,070
shares of the Company's common stock to Cumulus Logic, LLC, as a milestone payment pursuant to the terms of a Software License and Development Agreement between the Company and Cumulus Logic, LLC. The shares have an aggregate value of
$765,000
based on the 30 day trading day average of the Company's common stock immediately prior to July 29, 2015, the date that the License and Development Agreement was executed. The Company recognized share-based compensation expense of
$699,757
related to this transaction based on the fair value of the common stock on the date of issue of
$1.38
. This expense was included in "research and development costs" in the accompanying consolidated statements of operations.
On April 1, 2016, the Company issued an aggregate of
591,582
shares of the Company's common stock to Cumulus Logic, LLC, as the final milestone payment pursuant to the terms of a Software License and Development Agreement between the Company and Cumulus Logic, LLC. The shares have an aggregate value of
$892,500
based on the 30 day trading day average of the Company's common stock immediately prior to July 29, 2015, the date that the License and Development Agreement was executed. On April 1, 2016, the Company recognized share-based compensation expense of
$786,804
related to this transaction based on the fair value of the common stock on the date of issue of
$1.33
. This expense was included in "research and development costs" in the accompanying consolidated statements of operations.
The Company estimates the fair value of share-based payments using the Black-Scholes option-pricing model. For awards with market conditions the Company utilizes the Monte Carlo simulation model to estimate the fair value. The Company believes that these valuation techniques and the approach utilized to develop the underlying assumptions are appropriate in estimating the fair value of the Company’s share-based payments granted during the years ended
December 31, 2016
and
2015
. Estimates of fair value are not intended to predict actual future events or the value ultimately realized by the employees who receive equity awards.
The per share weighted average fair value of share-based payments granted during the years ended
December 31, 2016
and
2015
was
$0.95
and
$1.32
, respectively. In addition to the exercise and grant date prices of the awards, certain weighted average assumptions that were used to estimate the fair value of share-based payment grants in the respective periods are listed in the table below:
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Expected dividend yield
|
|
0%
|
|
0%
|
Expected volatility
|
|
55%
|
|
55 - 56%
|
Risk-free interest rate
|
|
1.29 - 1.36%
|
|
1.35 - 1.67%
|
Expected term (years)
|
|
5.5
|
|
5.5
|
Discount for post-vesting restrictions
|
|
N/A
|
|
N/A
|
Options granted to officers, employees and directors during fiscal
2016
and
2015
have exercise prices equal to the fair market value of the stock on the date of grant, a contractual term of
ten years
, and a vesting period generally of
three years
. Based on each respective group’s historical vesting experience and expected trends, the estimated forfeiture rate for officers, employees, and directors, for fiscal years
2016
and
2015
was
30%
,
30%
and
0%
, respectively.
The Company estimates expected volatility based primarily on historical daily volatility of the Company’s stock and other factors, if applicable. The risk-free interest rate is based on the United States treasury yield curve in effect at the time of grant. The expected option term is the number of years that the Company estimates that options will be outstanding prior to exercise. The expected term of the awards was determined based upon an estimate of the expected term of “plain vanilla” options as prescribed in SEC Staff Accounting Bulletin (“SAB”) No. 110.
As of
December 31, 2016
, there was approximately
$1.4 million
total unrecognized compensation cost related to the Company’s unvested stock options, restricted stock and restricted stock unit awards granted under the Company’s stock plans. The unrecognized compensation cost is expected to be recognized over a weighted-average period of
1.39
years.
As of
December 31, 2016
, the Company had
7,787,460
shares of common stock reserved for issuance upon the exercise or vesting of stock options, restricted stock and restricted stock units.
(11) Inventories
The Company's inventories consist of finished systems. Inventories are stated at the lower of cost (first-in, first-out) or market, not in excess of net realizable value. Inventories are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2016
|
|
December 31, 2015
|
Finished systems
|
|
$
|
6,181
|
|
|
$
|
70,534
|
|
Total Inventory
|
|
$
|
6,181
|
|
|
$
|
70,534
|
|
As of
December 31, 2016
and
2015
, the Company had not recorded any reserve for excess and/or obsolete inventories in arriving at estimated net realizable value of its inventory.
(12) Commitments and Contingencies
The Company has an operating lease covering its corporate office facility that expires in April 2021. The Company also has several additional operating leases related to offices in foreign countries. The expiration dates for these leases range from 2017 through 2018. The following is a schedule of future minimum lease payments for all operating leases as of
December 31, 2016
:
|
|
|
|
|
2017
|
$
|
1,655,155
|
|
2018
|
1,398,354
|
|
2019
|
1,402,181
|
|
2020
|
1,444,247
|
|
2021
|
491,020
|
|
Thereafter
|
—
|
|
|
$
|
6,390,957
|
|
These leases require the Company to pay its proportionate share of real estate taxes and other common charges. Total rent expense for operating leases was
$2.1 million
and
$2.4 million
for the years ended
December 31, 2016
and
2015
, respectively.
The Company typically provides its customers a warranty on its software products for a period of no more than
90
days. Such warranties are accounted for in accordance with the authoritative guidance issued by the FASB on contingencies. For the year ended
December 31, 2016
, the Company has not incurred any costs related to warranty obligations.
Under the terms of substantially all of its software license agreements, the Company has agreed to indemnify its customers for all costs and damages arising from claims against such customers based on, among other things, allegations that the Company’s software infringes the intellectual property rights of a third party. In most cases, in the event of an infringement claim, the Company retains the right to (i) procure for the customer the right to continue using the software; (ii) replace or modify the software to eliminate the infringement while providing substantially equivalent functionality; or (iii) if neither (i) nor (ii) can be reasonably achieved, the Company may terminate the license agreement and refund to the customer a pro-rata portion of the license fee paid to the Company. Such indemnification provisions are accounted for in accordance with the authoritative guidance issued by the FASB on guarantees. From time to time, in the ordinary course of business, the Company receives claims for indemnification, typically from OEMs. The Company is not currently aware of any material claims for indemnification.
Upon certain triggering events, such as bankruptcy, insolvency or a material adverse effect, failure to achieve minimum financial covenants or failure of the Company to issue shares upon conversion of the Series A redeemable convertible preferred stock in accordance with its obligations, the Series A redeemable convertible preferred stockholders may require the Company to redeem all or some of the Series A redeemable convertible preferred stock at a price equal to the greater of
100%
of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price as of the occurrence of the triggering event. On or after August 5, 2017, each Series A redeemable convertible preferred stockholder can require the Company to redeem its Series A redeemable convertible preferred stock in cash at a price equal to
100%
of the stated value being redeemed plus accrued and unpaid dividends. As of
December 31, 2016
, the Company was not in compliance with the financial covenants of the Series A redeemable convertible preferred stock for two consecutive quarters, which provided the Series A redeemable convertible preferred stockholders the right to require the Company to redeem any of the Series A redeemable convertible preferred stock at the greater of
100%
of the stated value plus accrued and unpaid dividends or the product of the number of shares of common stock underlying the Series A redeemable convertible preferred stock and the closing price of the Company's common stock as of
December 31, 2016
. To date, the holders of the Series A redeemable convertible preferred stock have neither exercised nor waived this right and accordingly this right may be exercised at any time. As of
December 31, 2016
, the Company did not fail any non-financial covenants related to the Company's Series A redeemable convertible preferred stock.
On July 24, 2015, the Company entered into an Independent Marketing Agreement with RFN Prime Marketing Inc., to provide among other items, certain sales and marketing deliverables to the Company and originally entitled RFN Prime Marketing Inc., to receive up to
2.55 million
shares of restricted Company common stock which will be issued based on certain milestone achievements and/or transactions over a
twenty-four
month period. The restricted Company common stock will be valued as they are earned, and the resulting value will be recorded as an expense in the period in which the performance milestone is met and the stock is earned. As of
December 31, 2016
, none of the performance milestones have been met, and therefore
no
restricted Company common stock has been issued.
On July 24, 2015, the Company renewed its Employment Agreement (“Quinn Employment Agreement”) with Gary Quinn. Pursuant to the Quinn Employment Agreement, the Company agreed to continue to employ Mr. Quinn as President and Chief Executive Officer of the Company effective July 24, 2015, at an annual salary of
$475,000
per annum, which automatically renews every
twelve
(12) months unless either party gives notice to the other that it will not renew at least
sixty
(60) days prior to the end of the term. The Quinn employment Agreement automatically renewed on July 24, 2016 for an additional
twelve
(12) months. Among other items, the Quinn Employment Agreement also provided for the grant of
500,000
restricted shares which vest
50%
and
50%
based upon the achievement of
two
predetermined milestones of the Company’s Common Stock closing trading price for
ninety
(90) consecutive trading days. The
500,000
restricted shares were granted to Mr. Quinn by the Company’s Compensation Committee on July 28, 2015. As of
December 31, 2016
, neither of the milestones related to this award have been met.
From time to time, the Company has undertaken restructuring and expense control measures to support its business performance and to align the Company’s cost structure with its resources. During the third quarter of 2013, the Company adopted a restructuring plan intended to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis (the "2013 Plan"). In connection with the 2013 Plan, the Company eliminated over
100
positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. As of
December 31, 2016
the restructuring accrual totaled
$0.8 million
. The 2013 Plan was substantially completed by December 31, 2014; however, the Company expects the remaining accrued severance related costs to be paid once final settlement litigation is completed, which can be at various times over the next
three
to
twenty-four
months.
In addition, as of
December 31, 2016
, our liability for uncertain tax positions totaled
$328,739
. At this time, the settlement period for the positions, including related accrued interest, cannot be determined.
(13) Derivative Financial Instruments
The Company does not use derivative financial instruments for trading or speculative purposes. As of
December 31, 2016
and
2015
, the Company had no foreign currency forward contracts outstanding. The Company did not utilize foreign currency forward contracts during the years ended
December 31, 2016
and
2015
.
As a result of the Company’s analysis of all the embedded conversion and put features within its Series A redeemable convertible preferred stock, the contingent redemption put options in the Series A redeemable convertible preferred stock were determined to not be clearly and closely related to the debt-type host and also did not meet any other scope exceptions for derivative accounting. Therefore the contingent redemption put options are being accounted for as derivative instruments and the fair value of these derivative instruments were bifurcated from the Series A redeemable convertible preferred stock and recorded as a liability. At the time of issuance of the Series A redeemable convertible preferred stock the fair value of these derivative instruments were recorded as a reduction to preferred stock. As of
December 31, 2016
and
2015
, the fair value of these derivative instruments was
$336,862
and
$82,024
, respectively, and were included in "other long-term liabilities" within the consolidated balance sheets. The loss on the change in fair value of these derivative instruments for
2016
of
$254,838
and the gain on the change in fair value of these derivative instruments for
2015
of
$55,147
, were included in “interest and other loss, net” within the consolidated statement of operations.
(14) Litigation
In view of the inherent difficulty of predicting the outcome of litigation, particularly where the claimants seek very large or indeterminate damages, the Company generally cannot predict what the eventual outcome of the pending matters will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines or penalties related to each pending matter may be.
In accordance with the authoritative guidance issued by the FASB on contingencies, the Company accrues anticipated costs of settlement, damages and losses for claims to the extent specific losses are probable and estimable. The Company records a receivable for insurance recoveries when such amounts are probable and collectable. In such cases, there may be an exposure to loss in excess of any amounts accrued. If, at the time of evaluation, the loss contingency related to a litigation is not both probable and estimable, the matter will continue to be monitored for further developments that would make such loss contingency both probable and estimable and, the Company will expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, the Company will accrue the minimum amount of the range.
Other Claims
The Company is subject to various legal proceedings and claims, asserted or unasserted, which arise in the ordinary course of business. While the outcome of any such matters cannot be predicted with certainty, such matters are not expected to have a material adverse effect on the Company’s financial condition or operating results.
The Company continues to assess certain litigation and claims to determine the amounts, if any, that the Company believes may be paid as a result of such claims and litigation and, therefore, additional losses may be accrued and paid in the future, which could materially adversely impact the Company’s financial results, its cash flows and its cash reserves.
(15) Restructuring Costs
From time to time, the Company has undertaken restructuring and expense control measures to support its business performance and to align the Company’s cost structure with its resources. In the third quarter of 2013, the Company adopted the 2013 Plan to better align the Company’s cost structure with the skills and resources required to more effectively execute the Company’s long-term growth strategy and to support revenue levels the Company expected to achieve on a go forward basis. In connection with the 2013 Plan, the Company eliminated over
100
positions worldwide, implemented tighter expense controls, ceased non-core activities and closed or downsized several facilities. The 2013 Plan was substantially completed by December 31, 2014; however, the Company expects the remaining accrued severance related costs to be paid once final settlement litigation is completed, which can be at various times over the next
three
to
twenty-four
months. The total amount incurred under the 2013 Plan for the years ended
December 31, 2016
and
2015
, was
$177,389
and
$172,995
, respectively.
Accrued restructuring costs as of
December 31, 2016
associated with the 2013 Plan is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Severance related costs
|
|
Facility and other costs
|
|
Total
|
Original charge
|
|
$
|
3,179,131
|
|
|
$
|
426,889
|
|
|
$
|
3,606,020
|
|
Utilized/Paid
|
|
(2,067,554
|
)
|
|
(231,973
|
)
|
|
(2,299,527
|
)
|
Balance at December 31, 2013
|
|
$
|
1,111,577
|
|
|
$
|
194,916
|
|
|
$
|
1,306,493
|
|
Provisions/Additions
|
|
365,174
|
|
|
770,136
|
|
|
1,135,310
|
|
Utilized/Paid
|
|
(653,325
|
)
|
|
(759,563
|
)
|
|
(1,412,888
|
)
|
Balance at December 31, 2014
|
|
$
|
823,426
|
|
|
$
|
205,489
|
|
|
$
|
1,028,915
|
|
Provisions/Additions
|
|
55,527
|
|
|
117,468
|
|
|
172,995
|
|
Utilized/Paid
|
|
(161,313
|
)
|
|
(307,935
|
)
|
|
(469,248
|
)
|
Balance at December 31, 2015
|
|
$
|
717,640
|
|
|
$
|
15,022
|
|
|
$
|
732,662
|
|
Provisions/Additions
|
|
165,228
|
|
|
12,161
|
|
|
177,389
|
|
Utilized/Paid
|
|
(36,531
|
)
|
|
(27,183
|
)
|
|
(63,714
|
)
|
Balance at December 31, 2016
|
|
$
|
846,337
|
|
|
$
|
—
|
|
|
$
|
846,337
|
|
The severance related liabilities and facility and other liabilities are included within “accrued expenses” and "accounts payable" in the accompanying consolidated balance sheets. The expenses under the 2013 Plan are included within “restructuring costs” in the accompanying consolidated statements of operations.
(16) Employee Benefit Plans
Defined Contribution Plan
Effective July 2002, the Company established a voluntary savings and defined contribution plan (the “Plan”) under Section 401(k) of the Internal Revenue Code. This Plan covers all U.S. employees meeting certain eligibility requirements and allows participants to contribute a portion of their annual compensation. Employees are
100%
vested in their own contributions. For the years ended
December 31, 2016
and
2015
, the Company did not make any contributions to the Plan.
Effective July 1, 2007, the Company, in accordance with the labor pension system in Taiwan, contributes
6%
of salaries to individual pension accounts managed by the Bureau of Labor Insurance. The plan covers all Taiwan employees that elect the new pension system and all employees hired after July 1, 2005. For the years ended
December 31, 2016
and
2015
, the Company contributed approximately
$35,000
and
$77,000
, respectively.
Defined Benefit Plan
The Company has a defined benefit plan covering employees in Taiwan. The Company accounts for its defined benefit plan in accordance with the authoritative guidance issued by the FASB on retirement benefits, which requires the Company to recognize the funded status of its defined benefit plan in the accompanying consolidated balance sheet, with the corresponding adjustment to accumulated other comprehensive income, net of tax.
At
December 31, 2016
and
2015
,
$28,675
and
$27,186
, respectively, is included in accumulated other comprehensive (loss) income for amounts that have not yet been recognized in net periodic pension cost. These amounts include the following: unrecognized transition obligation of
$10,620
and
$15,615
at
December 31, 2016
and
2015
, respectively, and unrecognized actuarial gains of
$39,295
and
$42,800
at
December 31, 2016
and
2015
, respectively. During
2016
, the total amount recorded in other comprehensive (loss) income related to the pension plan was
$1,489
(net of tax), which consisted of an actuarial loss of
($3,830)
and the recognition of
$5,319
of transition obligations recognized during
2016
as a component of net periodic pension cost. The transition obligation and actuarial gain included in accumulated other comprehensive (loss) income and expected to be recognized in net periodic pension cost for the year ended December 31,
2017
, is
$5,319
and
$1,188
respectively.
Pension information for the years ended
December 31, 2016
and
2015
, is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
2016
|
|
2015
|
Accumulated benefit obligation
|
|
$
|
190,186
|
|
|
$
|
149,932
|
|
Changes in projected benefit obligation:
|
|
|
|
|
|
|
Projected benefit obligation at beginning of year
|
|
194,098
|
|
|
193,144
|
|
Interest cost
|
|
3,471
|
|
|
4,348
|
|
Actuarial loss
|
|
1,702
|
|
|
2,549
|
|
Benefits paid
|
|
—
|
|
|
—
|
|
Service cost
|
|
—
|
|
|
1,240
|
|
Currency translation
|
|
3,897
|
|
|
(7,183
|
)
|
Projected benefit obligation at end of year
|
|
$
|
203,168
|
|
|
$
|
194,098
|
|
Changes in plan assets:
|
|
|
|
|
|
|
Fair value of plan assets at beginning of year
|
|
$
|
126,334
|
|
|
$
|
120,018
|
|
Actual return on plan assets
|
|
1,180
|
|
|
3,129
|
|
Benefits paid
|
|
—
|
|
|
—
|
|
Employer contributions
|
|
6,860
|
|
|
7,864
|
|
Currency translation
|
|
2,528
|
|
|
(4,677
|
)
|
Fair value of plan assets at end of year
|
|
$
|
136,902
|
|
|
$
|
126,334
|
|
Funded status
|
|
$
|
66,266
|
|
|
$
|
67,764
|
|
|
|
|
|
|
|
|
|
|
|
Components of net periodic pension cost:
|
|
|
|
|
|
|
Interest cost
|
|
$
|
3,471
|
|
|
$
|
4,348
|
|
Expected return on plan assets
|
|
(2,260
|
)
|
|
(2,702
|
)
|
Amortization of net loss
|
|
3,725
|
|
|
3,684
|
|
Service cost
|
|
—
|
|
|
1,240
|
|
Net periodic pension cost
|
|
$
|
4,936
|
|
|
$
|
6,570
|
|
The Company makes contributions to the plan so that minimum contribution requirements, as determined by government regulations, are met. Company contributions of approximately
$7,000
are expected to be made during
2017
. Benefit payments of approximately
$221,000
are expected to be paid in 2017 through 2026.
The Company utilized the following assumptions in computing the benefit obligation at
December 31, 2016
and
2015
as follows:
|
|
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Discount rate
|
|
1.50
|
%
|
|
1.75
|
%
|
Rate of increase in compensation levels
|
|
1.00
|
%
|
|
2.00
|
%
|
Expected long-term rate of return on plan assets
|
|
1.50
|
%
|
|
1.75
|
%
|
(17) Segment Reporting and Concentrations
The Company is organized in a single operating segment for purposes of making operating decisions and assessing performance. Revenues from the United States to customers in the following geographical areas for the years ended
December 31, 2016
and
2015
, and the location of long-lived assets as of
December 31, 2016
and
2015
, are summarized as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Years ended December 31,
|
|
|
2016
|
|
2015
|
Revenues:
|
|
|
|
|
Americas
|
|
$
|
8,827,878
|
|
|
$
|
23,308,240
|
|
Asia Pacific
|
|
11,651,487
|
|
|
12,934,261
|
|
Europe, Middle East, Africa and Other
|
|
9,783,981
|
|
|
12,328,490
|
|
Total Revenues
|
|
$
|
30,263,346
|
|
|
$
|
48,570,991
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
2016
|
|
2015
|
Long-lived assets:
|
|
|
|
|
Americas
|
|
$
|
6,525,612
|
|
|
$
|
7,519,787
|
|
Asia Pacific
|
|
890,051
|
|
|
650,633
|
|
Europe, Middle East, Africa and Other
|
|
218,316
|
|
|
168,241
|
|
Total long-lived assets
|
|
$
|
7,633,979
|
|
|
$
|
8,338,661
|
|
For the year ended
December 31, 2016
, the Company had
one
customer, Hitachi Data Systems, that accounted for
11%
of total revenue. For the year ended
December 31, 2015
, the Company had
two
customers, Violin Memory, Inc., and Hitachi Data Systems, that accounted for
23%
and
10%
of total revenue, respectively.
As of
December 31, 2016
, the Company had
three
customers, Datang Telecom International Technology Co., Ltd, Hitachi Data Systems and Huawei Technologies Co., Ltd, that accounted for
15%
,
14%
and
12%
of the gross accounts receivable balance, respectively. As of
December 31, 2015
, the Company had
two
customers, Hitachi Data Systems and Datang Telecom International Technology Co., Ltd, that accounted for
12%
and
11%
of the gross accounts receivable balance, respectively.
(18) Valuation and Qualifying Accounts – Allowance for Returns and Doubtful Accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period Ended
|
|
Balance at Beginning of Period
|
|
Charges / (Benefits) to Revenue
|
|
(Increases) Deductions
|
|
Balance at End of Period
|
December 31, 2016
|
|
$
|
191,285
|
|
|
104,228
|
|
|
34,837
|
|
|
$
|
260,676
|
|
December 31, 2015
|
|
$
|
119,530
|
|
|
(6,745
|
)
|
|
(78,500
|
)
|
|
$
|
191,285
|
|
Note: Charges/benefits to the allowance for doubtful accounts are recorded within “general and administrative expenses” within the consolidated statements of operations. Charges/benefits to the return reserve for product and service are recorded within “product revenue” within the consolidated statements of operations.
(19) Related Party Transactions
William Miller, a member of the Company's Board of Directors, is the Chairman and Chief Executive Officer of X-IO Technologies, Inc. (“X-IO Technologies”), an enterprise storage company. For the year ended December 31, 2016, the Company sold product to X-IO Technologies totaling
$141,535
.
Martin M. Hale, Jr., a member of the Company's Board of Directors, is a general partner of HCP-FVA, the holder of all of the Company’s Series A redeemable convertible preferred stock. The Series A redeemable convertible preferred stock was purchased by Hale Capital Partners, LP, of which Mr. Hale is a general partner, pursuant to a September 16, 2013 stock purchase agreement with the Company at a time when Mr. Hale was not a director of the Company. Hale Capital Partners, LP subsequently assigned all of its rights in the Series A redeemable convertible preferred stock to HCP-FVA. Under the terms of the Certificate of Designations, the holders of the Series A convertible preferred stock are entitled, as a group, to nominate and to elect up to two directors so long as at least 85% of the Company's Series A redeemable convertible preferred stock is outstanding. HCP-FVA, the sole holder of the Series a convertible preferred stock, nominated and elected Mr. Hale in September 2013 and Michael P. Kelly on October 29, 2014, to the Company’s Board of Directors.
Seth Oxenhorn, the son of Eli Oxenhorn, the Former Chairman of our Board of Directors, was Vice President of Strategic Alliances for the Company through his resignation on October 1, 2016. This was a non-executive role and Seth Oxenhorn was not an executive officer of the Company. During 2016, Seth Oxenhorn received total compensation of
$249,300
, inclusive of salary, commissions, severance and equity awards. All of such compensation earned by Seth Oxenhorn was in accordance with the Company’s compensation plan for all personnel in similar positions.